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Petitioner: SAMANO RAJAB ALI VS Respondent: THE STATE THE STATE
Court Name: Supreme Court of Pakistan Judge(s): N/A Title: SAMANO RAJAB ALI vs THE STATE THE STATE Case No.: Cr. A. No. K-6 of 1972 Cr. A. No. K-5 of 1972 Cr. A. No. K-5 of 1972 Date of Judgment:- Reported As: 1973 SCMR 162 Result: Appeals dismissed
JUDGMENT
JUDGMENT ANWARUL HAQ, J.-This judgment wily dispose of Criminal Appeals bearing Nos. K-5 and K-6 of 1972. e., ,, The appellant in the first case is Samano, and in the seconds Rajah Ali , who were both tried along with one Fateh Muhammad, by the learned Sessions Judge of Karachi, on charges falling under sections 143, 302 and 307 of the Pakistan Penal Code, read with section 149 thereof. While Fateh Muhammad was acquitted, the two appellants were convicted under sections 302 and 3u7 of the Pakistan Penal Code. On the first. Count each of them was sentenced to death and was also ordered to pay a fine of Rs.1,000 whereas on the second count each of them was awarded transpor--tation for life and a fine of Rs.1,000. In default of payment of fine each was ordered to suffer rigorous imprisonment for two years. Their appeals have been dismissed by a Division Bench of the High Court of Sind & Baluchistan by its judgment dated the 30th of June 1971, and the sentences of death have been confirmed. According to' the prosecution, the two appellants, and five others including the acquitted accused Fateh Muhammad, were hired by Pit Gul Hassan to assassinate Abdul Qadir (P. W. 5) son of Pit Hassan Bakhsh (P. W. 9), owing to his resentment at the fact that Abdul Qadir bad married his daughter, Bilqis, against his wishes and without his consent. The marriage had been solemnised on the 31st of July 1964, and the Rukhsati was fixed for the 15th of November of that year. The assassination attempt was, therefore, made on the evening of the 10th of November 1964 just a few days before the date of the Rukhsati. This matrimonial dispute has a background. Pit Gul Hassan is the Gaddi Nashin of the shrine of Luari in the District of Hyderabad. His father Pit Ahmad Zaman was a cousin of Pir Hassan Bakhsh.
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Pit Gul Hassan was married to Mst. Aziz Bibi, a sister of Pit Hassan Bakhsh. She died in February 1938, leav--ing behind her an only child Bilqis, aged about 2J years at that time. The girl remained with her maternal uncle, Pir Hassar, Bakhsh and her maternal grand-mother, Mst. Maleka. In January 1949, Pir Gul Hassan filed an application under section 25 of the Guardians and Wards Act, for the custody of his daughter, but that application was dismissed by the Chief Court of Sind on the 30th of November 1951. Shortly before filing this application, Pir Gul Hassan had filed two civil suits against Pir Hassan Bakhsh and his -'brothers. The first suit was intended to restrain Pir Hassan Bakhsh from marrying his son Abdul Qadir to the plaintiff's daughter Bilqis; and the second suit was for partition of certain properties left by Fir Abdul Qadir, the father of Pir Hassan Bakhsh. In the first suit a consent decree was passed on the 30th of September 1949, under which Pir Hassan Bakhsh agreed not to marry his son Abdul Qadir to Bilqis. The second suit was, however, dismissed on the 8th of January 1951. Besides this litigation between Pir Gul Hassan and his wife's brother Fir Hassan Bakhsh, there was also litigation between Pir Gul Hassan and his sister, Mst. Inayat Bibi, regarding the pro--perties left by their father, Fir Ahmad Zaman. The suit was compromised in September 1945. It is said that during that litigation Pir Mahfuz, a brother of Fir Hassan Bakhsh, sided with Mst. Inayat Bibi. All this litigation led to considerable bad blood between the two families, so much so that Fir Gul Hassan, who had a large number of Murids, made it virtually impossible for Pir Hassan Bakhsh to cultivate those of his lands which were situated adjacent to Pir Gul Hassan's lands. It is said that these circumstances compelled Fir Hassan Bakhsh to sell these lands to Pir Gul Hassan at a nominal price. During these years of estrangement between her father and maternal uncle, Bilqis continued to reside with her uncle at Karachi. In 1964, when she was nearly 29 years of age, having been born on the 25th of May 1935, her uncle, Pir Hassan Bakhsh, approached her father for permission to marry her to Abdul Qadir. Pir Gul Hassan rejected the proposal outright and threatened Fir Hassan Bakbsh with dire consequences, but the latter was not deterred, and, in fact, solemnised the marriage, as already stated, on the 31st of July 1964. After the Nikah, Bilqis shifted to the house of her other maternal uncle Fir Mahfuz, where she was to reside until her Rukhsati on the 15th of November 1964. As to the events immediately preceding the assault, it is alleged that for quite some time threatening messages were sent by Pir Gul Hassan to Fir Hassan Bakhsb, and for several days a jeep was seen moving suspiciously on the road in front of the house of Pir Hassan Bakhsh situated near Nishter Park. Appre--hending danger to his son's life, Pir Hassan Bakhsh advised Abdul Qadir not to go out alone. He engaged the deceased Allah Ditta, a young man of about 19 years of age and a brother of his driver Ibrahim (P. W. 13), to act as a body-guard to Abdul Qadir. At 8-15 p.m., on the 10th of November 1964, Abdul Qadir accompanied by Allah Ditta, drove back to his house from a shopping trip, and parked the car in front of the gate of his house, with the right- side of the car parallel and nearest to the footpath. As Abdul Qadir was himself in the driver's seat Allah Ditta was sitting on his left. A jeep which had followed Abdul Qadir's car from the Sadar area, stopped a few paces away from the car. It is said that two men jumped out of the jeep, armed with revolvers or pistols, and both of them started firing at Abdul Qadir and Allah Ditta, who were still in the car. On being hit, Allah Ditta slumped on the seat but Abdul Qadir managed to open the door Anwaru of the car and fell out in an injured condition. It is alleged that he received one more shot while he had fallen out of the car. The alarm raised by Abdul Qadir attracted his driver Ibrahim (P. W. 13) and Haji Muhammad Rahim (P. W. 14), who had just arrived at the house as a guest. A female neighbour by the name of Mrs. Salma Iqbal (P. W. 15) was also attracted to the scene as she was at that time standing on the footpath in front of her house on the opposite side of the road. The assailants immediately climbed into the jeep and drove away. The number of the jeep could not be noted as a piece of cloth was tied over the number-plate. However, Abdul Qadir, Ibrahim and Haji
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Muhammad Rahim were able to identify the two assailants, in the light of the street-lamp that was burning overhead, as the two appellants before us. The remaining occupants of the jeep could not be identified at that time, although Fateh Muhammad, the acquitted accused, was later picked up at a test identification parade. Allah Ditta expired at the spot while Abdul Qadir was first taken by his father, Pir Hassan Bakhsh, to the Dispensary of Dr. Tajammul, from where he was directed to the Seventh Day Adventist Hospital and then to the Civil Hospital, Karachi. The body of Allah Ditta was also taken there. The incident seems to have created quite a stir, and the machinery of law is said to have come into motion without loss of time. The Deputy Inspector-General of Police, Karachi, Mr. Asif Majid, sent a telephonic message to the Superintendent of Police of Thatta District at about Isha prayer time, intimating that a nephew of one Pir Mahfuz had been attacked at Karachi and that the assailants were on their way to Hyderabad. The Superintendent of Police passed on this message to the S. H. O., Thatta, and the same was recorded in the station diary at serial No. 28 at 8 p.m. After giving the contents of the directions received from the D. I.-G., Karachi, the entry recites that the S. H. O. Along with his staff had started checking the vehicles after blocking the road, and similar information had been conveyed to the Traffic Branch, Thatta and A. S. P., Gharo. Foot Constable, Mahbub Hussain (P. W. 12) was on patrol duty near Gate No. 1 of Patel Park (now named Nishter Park) when he saw a commotion near the house of Fir Hassan Bakhsh and was informed that some assailants had fired and injured a person. He rushed to the Police Station Sadar Bazar and con--veyed this information to Sub-Inspector Syed Asghar Hussain (P. W. 24). Entry No. 54, timed at 20-20 hours was recorded in the station diary, mentioning that the injured persons bad been taken to the Civil Hospital, and the Police Officer was also proceeding there for verification and examination. S.I. Asghar Hussain reached the Civil Hospital at about 9 p.m. And found the injured Abdul Qadir in the Casualty Ward. He commenced recording Abdul Qadir's statement at 9-05 p.m. And concluded the same at 9-50 p.m. A copy of the statement is on the record as Exh. 11, and it was incorporated in the station diary of the Soldier Bazar Police Station at serial No. 56, timed at 22-15 hours, having been brought from the Civil Hospital by F. C. Mahbub Hussain. In this statement, Abdul Qadir gave a full account of the incident and clearly named the two assailants as Rajab Ali and Samano. He also asserted that "as there was sufficient municipal light lit on the said site of occurrence, I would be able to identify the remaining persons as well if they came before me." He also gave the motive for the assault. While still at the Civil Hospital, S. I. Asghar Hussain also recorded the statement of driver Muhammad Ibrahim at about 10-30 p.m., and thereafter went to the place of occurrence, reach-- ing there at about 11 p.m. He recorded the statement of Haji Muhammad Rahim at about midnight. On examination of the car in which Abdul Qadir and Allah Ditta had driven home, the Sub-inspector saw blood on the driver's seat, the foot-board and the rubber matting on the floor in front of the back-seat. He also found a broken tooth and a blood-stained cigarette packet lying in the car. On the 13th of November 1964 he handed over the investigation of the case to Inspector Pir Bakhsh Baloch (P. W. 25) of the blalir Police Station. The road blocks put up by S. H. O. Muhammad Yousaf (P. W. 18) of Thatta Police Station were successful in intercepting a jeep at 1-50 a.m. The appellant, Rajab Ali was driving the vehicle while Samano was sitting by his side. From the personal search of Rajab Ali, a licensed revolver loaded with six cartridges and a bandolier containing 18 live cartridges were recovered. Samano was found to be in possession of an unlicensed revolver loaded with six cartridges and 15 live cartridges in the pocket of his waist-coat. One unlicensed sword was found lying in the jeep. All these articles were seized in the presence of a local witness, Muhammad Achar (P. W. 20). The appellants, as well
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as the articles seized from them, were brought to Karachi and handed over to Police Station Soldier Bazar at 13-30 hours on the 11th of November 1964. On the 17th of November 1.964, the appellants were produced before Mr. Anwar Sheikh, a Magistrate of the 1st Class at Karachi, for recording their confessions. While the confession of Rajab Ali was recorded the same day, that of Samano was recorded the next day, i.e., the 18th of November 1964. In these confessional statements, the appellants gave details of the preparations they had made for the assassination of Abdul Qadir under the direc--tions of Pir Gul Hassan and confessed that they had actually carried out the attack in the manner alleged by the prosecution. They ended by saying that they thought both men had been killed at the spot. They also admitted their interception and arrest by the Thatta Police. The autopsy of the dead body of Allah Ditta, as performed by Dr. Maj. A. Hassan (P. W. 21) showed that the deceased had sustained five gun-shot wounds, on the mouth, the frontal lower part of the neck, the right scapular region and the left arm. Three of these injuries were wounds of inlet and two were wounds Stare of exit, thus showing that at least three shots had hit him from close range. The injuries on the mouth and the lower part of the neck were individually sufficient to cause death in the ordinary Nag course of nature. The injured Abdul Qadir was first examined by Dr. Shuja-ul--Islam Zuberi, who was, however, not available for giving evidence during the commitment proceedings or the trial, and accordingly the medico-legal report prepared by him at the time of examina--tion was proved by Maj. Hassan. Ghulam Muhammad (P. W. 11), a clerk of the Civil Hospital, Karachi, deposed about the non--- availability of Dr. Shuja-ul-Islam Zuberi. According to Dr. Zuberi's report, Abdul Qadir was found to have sustained three injuries of the following description :- (1) Gunshot wound on right hypochondrium -- " in diameter with inverted edges and with positive tattooing of the skin all round in mid clavicular line. (2) Gunshot wound on left hychondrium in the anterior axillary line ----- in diameter with inverted edges and tattooing of the skin all round. (3) Gunshot wound on left thigh outer aspect 4" in diameter with inverted edges and tattooing of the skin all round and there was no wound of exit present. The weapon used in the opinion of the C. M. O: was a projectile weapon like a revolver fired from a close range. The duration of injuries was recent and their nature was dangerous to life. As Abdul Qadir's condition was serious and he needed specialist attention, It.-Col. Saeed Ahmad (C. W. 1) then posted as Professor of Surgery in the Dow Medical College, Karachi, was called in, and apparently he performed an emergency operation. It is, however, surprising that at the time he gave evidence at the trial the notes prepared by him were not made available to him by the prosecution. Accordingly, he made a brief statement from memory and could only recall that "The injured Abdul Qadir had gun-shot wounds. I cannot accurately say what was the effect of injuries which he had. But I can recall this one that he was talking a lot in excited manner. I cannot say whether he was talking sense. The injured was surrounded by a huge crowd and at this stage I cannot recall whether he was examined by the police in my presence." A bullet recovered from the body of the deceased Allah Ditta as well as the two revolvers and the live cartridges recovered from the appellants were examined by the Forensic Expert, Khurshid Ahmad Qureshi (P. W. 20). And he came to the conclusion that the bullet had not been fired from the revolver secured from the appellant Samano, while he could not give any definite opinion whether it had been fired from the revolver recovered from Rajab Ali'. Both the appellants pleaded not guilty at the trial, and asserted that they had been falsely implicated by witnesses who were either related to Pir Abdul Qadir or were his servants. They retracted their confessions alleging that the same had been extracted from them by the police through torture and coercion.
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Rajab Ali admitted that he was in the employment of Pir Gut Hassan as a part-time clerk but stated that he had left his service a month before the present incident because Pir Gut Hassan was intending to go abroad. He admitted his arrest by the Thatta Police, but insisted that he was arrested at evening time on the 10th of November 1964, when he was sitting in his jeep. He explained that he had gone to village Shoro, which is about three miles f om Thatta towards the ferry crossing on Indus River and passed through Thatta on his way back to his native village which is situate beyond Hyderabad. He also alleged that he did not know Samano at all prior to the proceedings in this case. The appellant Samano described himself as a resident of Sanghar and a Murid of Pir Abdullah Shah of Thatta. He admitted his arrest at Thatta, but explained that he had gone to the Dargah of Pir Abdullah Shah and was waiting at the bus stop for going to Hyderabad when the police took him away to the police station. In convicting the two appellants, the learned trial Judge accepted the prosecution case as regards the motive for the crime, and also relied upon the ocular evidence of Abdul Qadir, Muhammad Ibrahim and Haji Muhammad Rahim. He found corroboration in the testimony of Pir Hassan Bakhsh, and the circumstances of the arrest of the appellants by the Thatta Police and the recovery of weapons from their possession. Finally, the learned Judge expressed the view that the confessions made by the appellants before the Magistrate were voluntary and true, and were corroborated in material particulars. The learned Sessions Judge did not, however, place any reliance on the testimony of Mrs. Salma Iqbal. When the case came up before the High Court in appeal and confirmation proceedings, the learned Judges felt that certain crucial features bearing upon the guilt or innocence of the accused had not been explained by the prosecution, and accordingly they recorded additional evidence under section 375 of the Code of Criminal Procedure by examining Mr. Fazal Mahmood who was Superintendent of Police, Thatta, at the relevant time, and Syed Asghar Hussain Shah, Sub-Inspector, who had conducted the initial investigation and recorded the first information report. As a result of the examination of these two officials, certain entries from the station diaries were brought on the record as Exhs. C. W. 1/1 to C. W. 1/7. After an elaborate examination of the entire evidence brought on the record and the extensive criticism offered against it on behalf of the appellants, the High Court has agreed with the findings of the trial Court to the effect that the ocular account of the incident given by Abdul Qadir, Muhammad Ibrahim and Haji Muhammad Rahim was worthy of credit, that the two appellants were identified by these witnesses, and that the ocular evidence was corroborated by the circumstances of the arrest of _ the appellants at Thatta during the middle of the night, as well as by their confessions. The learned Judges have observed that the confessions must be regarded not only as having been voluntarily made, but has also containing a truthful account of the matters narrated therein for the reason that certain details disclosed by them were such as could only be known to the appellants, who were the faithful Murids of Pir Gut Hassan and had been taken into confidence by him regarding his feelings in the matter of Abdul Qadir's marriage to his daughter, Bilqis. Leave to appeal was granted in this case to examine, inter alia, the contentions that the identification of the appellants by the eye-witnesses was not free from doubt in view of the fact that their names were not mentioned in several telephonic messages which passed between various Police Officers before the apprehen--sion of the appellants at Thatta, and that they appeared to have been introduced in the first information report and other statements under section 161 of the Cr. P. C. After their particulars became known through the Thatta Police ; that the ocular evidence had not received the necessary scrutiny in the High Court ; and that there was
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intrinsic evidence to show that the confessions attributed to the appellants were not voluntary and were, in fact, the result of police torture and duress. The facts constituting the background of, and the motive for, the crime have not been contested before us. Similarly, the fact that the incident took place in front of the house of Pir Hassan Bakhsh is not disputed, nor is there any doubt regarding the fact that the deceased Allah Ditta and the injured Abdul Qadir were fired upon when they were still sitting in their car. The presence of blood, a broken tooth and a blood-stained packet of cigarette, in the car confirms this position. It is also in evidence that an electric street-lamp was burning overhead, giving sufficient light to enable identification of the assailants, provided they were known to the witnesses. The first question, therefore, is whether the two appellants were sufficiently known to Abdul Qadir and the other two witnesses sty that they could he identified even during a sudden attack. As far as Rajab Ali is concerned, there is overwhelming evi--dence that he was fully known to the complainant side, as he had been working as the Mukhtar of Pir Gut Hassan for some years before the present occurrence. He was prosecuting several cases on behalf of Pir Gut Hassan and describing himself as Manager of the Pir. Copies of two such applications are on the record as Exh. 34 and Exh. 35. On the 17th of September 1964. He made an application (Exh. 26) for the grant of a revolver licence, describing himself as attorney of Pir Gut Hassan of Luari Shatif and showing his residence as Bungalow No. 87, Flyns Street Garden East, Karachi, which admittedly belongs to Pir Gut Hassan. The licence was granted to him on the 19th of September 1964, and the same particulars were incorporated in the relevant register (Exh.27) Beside he himself admits that he had been working as a part time clerk to Pir Gul Hassan. Pir Hassan Bakhsh and his son Abdul Qadir, being closely related to Pir Gul Hassan, were bound to know each other's servants and employees, even if their mutual relations were strained. There can thus be no manner of doubt that Abdul Qadir as well as the other two witnesses, who are intimately connected with the family of Abdul Qadir, fully knew Rajah Ali from before. As regards Samano, there is, in the first place, the assertion made by Ibrahim that he knew this man from before. He was cross-examined on this point and he asserted that he knew Rajab Ali as well as Samano from before because he used to go on duty to Pir Gul Hassan. It seems to us that what he intended to convey by this statement was that as the driver of Pir Hassan Bakhsh, it was part of his duty to go to the hr se of Pir Gul Hassan: presumably with the members of the family. There is no suggestion that during the years of friction and estranb ent the members of the two families did not at all visit each other; on the contrary it appears that during the several disputes arising between them, certain meetings and negotiations must have take place. We do not, therefore, see anything improbable in the assertion made by driver Ibrahim that he knew Samano from before. The evidence of this witness of course implies that Samano was an employee of Pir Gul Hassan. Abdul Qadir derived his knowledge of Samano from the deceased Allah Ditta, about two months before the occurrence. It appears that by that time Abdul Qadir had become apprehensive of the designs of Pir Gul Hassan, and it was for this reason that Allah Ditta had been engaged as his body-guard. Allah Ditta showed Samano to Abdul Qadir when the former was taking tea in a Restaurant. The position is not clearly spelt out in the deposition of Abdul Qadir, but the statements made by him in this connection leave no doubt that Allah Ditta, as his body--guard, had come to suspect that Samano had been hired as an assassin by Pir Gul Hassan and it was for this reason that Allah Ditta showed Samano to Abdul Qadir. The cross-examination of Abdul Qadir on this particular point does not appear to have yielded any result. Haji Muhammad Rabim saw Samano with Rajab Ali in Soldier Bazar two or three months before the incident when this man was pointed out to him by driver Ibrahim as the man of pir Gul Hassan. The implication of this statement is clear and confirms the impression that two or three months before
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this occurrence Abdul Qadir, his father Hassan Bakhsh, his employees and friends were all apprehending danger at the hands of Pir Gul Hassan, and they had come to know that Saman was one of the men hired for this purpose. Reading the evident of the three witnesses together, no doubt is left in my mind that Rajah Ali was fully known to them, and Samano's face and features were also fixed in their mind as a possible assassin. Such being the case, the witnesses would be able to identify both of them, provided the circumstances of the assault permitted of identification. According to Abdul Qadir the two appellants had jumped out of the jeep when it stopped along. Side his car. The same fact is repeated by Ibrahim and Haji Muhammad Rahim. If the two men did indeed jump out of the jeep before opening fire on Abdul Qadir and Allah Ditta, then it is clear that they must have been fully recognised by Abdul Qadir and the witnesses, in the light of the street- lamp burning overhead, especially because the medical evidence shows that both the deceased and Abdul Qadir were hit from a very close range. Mr. Manzoor Qadir is, per--haps, right in saying that if the assailants remained sitting in the jeep, their identification would be difficult as a…
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