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Petitioner: GHULAM QADIR and others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Tanvir Bashir Ansari, Muhammad Akhtar Shabbir Title: GHULAM QADIR and others vs THE STATE Case No.: Criminal Appeals Nos. 20 and 26 of 2000/BWP Date of Judgment:2002-03-21 Reported As: 2002 YLR 2117 Result: Appeal dismissed
JUDGMENT
JUDGMENT ' TANVIR BASHIR ANSARI, J.---This judgment shall decide Criminal Appeal No,20 of 2000 and Criminal Appeal No,26 of 2000, as both these appeals arise out of the same judgment dated 31-5- 2000 passed by the learned Judge Special Court for Suppression of Terrorist Activities, Bahawalpur Division Bahawalpur. 2. Khan Muhammad son of Pehlwan, Ali Hassan son of Sikandar, Rab Nawaz son of Karim Bakhsh and Ghulam Qadir son of Allah Ditta were tried for the offences punishable under sections 148/149/395/396/ 397/324/412, P.P.C. The learned trial Judge convicted Rab Nawaz, Ali Hassan and Ghulam Qadir and sentenced them as under:-- (i) Under sections 396/149, P.P.C. ' Rab Nawaz, Ali Hassan and Ghulam Qadir were awarded death sentence. They were directed to be hanged by neck till they were dead. (ii) Under sections 148/149, P.P.C. ' They were convicted and sentenced to 3 years' R.I. Each. (iii) Under sections 449/149, P.P.C. ' They were convicted and sentenced to 5 years' R.I. And a fine of Rs,5,000 each or in default thereof to undergo 6 months S.I. (iv) Under sections 324/149, P.P.C. ' They were convicted and sentenced to 7 years' R.I. And a tine of Rs,5,000 each or in default thereof to undergo 6 months S.I. ' The convicts were directed to pay a sum of Rs,60,000 each as compensation under section 544.- A, Cr.P.C. To the legal heirs of both the deceased Mehdy Khan and Ghulam Hussain separately and
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to pay a sum of Rs,40,000 each as compensation to P.W. Muhammad Azam or in default thereof to undergo 6 months S.I. All the sentences were ordered to run concurrently. However, the benefit of section 382-B, Cr.P.C. Was extended to each . Of them. Accused Khan Muhammad was, however, acquitted of the charge giving him the benefit of doubt. 3. All the three convicts/appellants have filed Criminal Appeal No,20 of 2000 against their sentences and convictions whereas the State has filed Criminal Appeal No,26 of 2000 against the acquittal of Khan Muhammad accused. 4. According to the case of the prosecution, the occurrence took place on 21-2-1998 at about 8-00 p.m. When the complainant Major (R.) Muhammad Akram being Manager Admn. Was present in his office of Ashraf Sugar Mills Ltd. Ashraf Abad, Bahawalpur. All of a sudden, 8/10 persons armed with Kalashnikov, pistols and mouzers trespassed into the Mill offices and rushed towards the Accounts Branch. First of all, they struck Muhammad Akram, Security Guard with the butt of their Kalashnikov and snatched his rifle. Then, one of the accused fired a shot at Akbar Khan, the other Security Guard, which hit him on his right leg who fell down alongwith his rifle which was picked up by the accused. Thereafter, all the accused broke open the lock of the Iron Grill and entered the Accounts Branch. They tried to break the Iron Safe of the Accounts Branch with the burst of their tire weapons in order to take away the cash lying therein. However, they could not succeed. In the meanwhile, there was commotion all around and the Security Staff and other employees of the Mill rushed to the place of occurrence. Faced with this situation, the accused started indiscriminate firing resulting into the death at the spot of Ghulam Hussain, Security Supervisor and Mehdey Khan, Security Guard. At the same time, Muhammad Azam, Security Officer, Muhammad Zaman, Time Officer and Muhammad Akhtar, Operator were also seriously injured. All the culprits then made good their escape alongwith the four rifles bearing Nos.7677, 9075, 3326 and 8925 which they snatched from the deceased and the other security staff. The matter was immediately reported to the police whereupon a criminal case was lodged with Police Station Musafar Khana. 5. Abdul Rashid, S.-I./S.H.O. Visited the place of occurrence, secured a number of empty cartridges fired from Kalashnikov and other lethal weapons alongwith live bullets and sealed them accordingly He also secured blood-stained earth pertaining to deceased Mehdy Khan and Ghulam Hussain. He further prepared the injury statements of the deceased as well as the other injured Muhammad Zaman,- Akbar Khan, Muhammad Azam and Muhammad Akhtar. He despatched the dead bodies for postmortem examination alongwith their inquest reports and also referred the injured for their medical examination. 6. The matter remained under investigation as the accused were not being traced and it was on 23-8-1998 when Khan Muhammad, Ali Hassan, Rab Nawaz and Ghulam Qadir were arrested in this case who were carrying certain weapons (unlicenced) with them. As no one was nominated in the F.I.R. And identification of the accused became a crucial isstle, the identification parade was held on 27-8-1998 in the New Central Jail, Bahawalpur. Muhammad Azam and Muhammad Akmal being eye-witnesses took part in the identification parade. Out of them Muhammad Azam identified Ghulam Qadir, Ali Hassan and Rab Nawaz whereas Muhammad Akmal failed to identify any of the accused. All the accused pointed out the place of occurrence. Out of them Khan Muhammad and Ghulam Qadir led to the recovery of rifles so stolen away from the place of occurrence whereas Rah Nawaz led to the recovery of Kalashinkov on 6-9-1998. After completion of the investigation, the challan was submitted before the Court for trial. 7. Dr. Syed Sajjad Hussain P.W.9 conducted the autopsy of Mehdy Khan on 22-2-1998 and found the following injuries on his person:- (i) There was an oblique lacerated wound measuring 1.5 c.m. x 1 c.m. Blind deep on right supra clavicular fosal just above medial and of right end of right clavicle. Edges were. Inverted (Entrance wound). Clotted blood was present around the wound;
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(ii) There was an. Oblique 2.5 c.m. x 1 c.m. x blind deep lacerated wound on left lateral aspect of left chest and was 18 c.m. Infero-lateral to the left nipple. Edges were everted (exit wound) clotted blood was present around the wound. (iii) There was an oblique 8 c.m. x 2 c.m. x bone is fractured gutter shaped through and through lacerated wound of front of upper 1/3rd of left leg and was 5 c.m. Below the left knee joint. Edges were inverted in medial half and everted in lateral half; (iv) There was an oblique 4 c.m. x 5 c.m. x joint cavity deep lacerated through and through wound on front of right knee joint. On dissection, joint cavity was opened and medial condyle of right femur was found fractured; (v) There was an oblique lacerated wound measuring 2 c.m. x 3 c.m. x bone exposed through and through on front of left ankle joint. On dissection, the underlying bones were intact. ' All the injuries were ante-mortem in nature and Were caused by fire-arm weapons. Probable time between injuries and death was Within 15 minutes while probable time between death and post- mortem was within 12-24 hours. He issued the post-mortem report Exh. PS and its diagram Exh. PS/1. He also signed the inquest report and injury statement of the deceased vide Exhs.PT and PU. ' On the same day, he further conducted the autopsy of deceased Ghulam Hussain and found the following injuries on his person:- (i) There was an oval lacerated wound measuring 0.5 c.m. x 0.5 c.m. x blind deep present on left arm on its upper 1/3rd, 8 c.m. Below head of left humerus.. Edges were inverted (Entrance wound); (ii) There was an oblique 1 c.m. x 0.5 c.m., x blind deep lacerated wound on outer aspect of right chest, 5 c.m. Below the right arm pit. Edges were everted. (Exit wound). (iii) There was an oblique 1 c.m. x 0.5 c.m. x blind deep lacerated wound on front of upper 1/3rd of left thigh. Edges were inverted and blackened. There was marked tatooing in an area of 5 c.m. x 3 c.m. Around the wound. (Entrance wound). It was 8 c.m.. Below anterior/superior illiac supine (left). (iv) There was an oval 1 c.m. x 0.75 c.m. Lacerated wound on outer aspect of upper half of left thigh and was 15 c.m. Infro-lateral to the left anterior superior illiac supine. Edges were everted. (Exit wound). On dissection of injury No,3, the projectile went downwards on outwards on outwore and towards left thigh. The soft tissue of left thigh made tract and bruished the soft tissues and went out through injury No,4. ' All the injuries were ante-mortem and were casued by fire-arm weapons. Probable time between injury and death was within 10 minutes while between death and post-mortem was within 12-24 hours. He issued the report of post-mortem and the diagram vide Exhs. PV and PV/1. He also signed the inquest report and injury statement of the deceased vide Exhs. P.W. And PX. 7. Dr. Muhammad Siddique P.W.11 examined the injured Muhammad Zaman, Akbar Khan, Muhammad Azam and Akhtar Hussain on 21-2-1998 and found the following injuries on their person:- ' Muhammad Zaman (i) There was an entry wound with inverted margins about 1/2 c.m. x 1/2 with ragged margins on the left side of the chest anteriorly in the second intercostal space with oozing blood. No surgical emphysima palpable. X-Ray chest was advised; (ii) A lacerated wound with ragged irregular and everted margins about 3 c.m. x 4 c.m. Alongwith outer border of scapula in the 4th inter costal space. It was an exit wound; (iii) Two wound on the antero-medial aspect of left arm about 1 c.m. x 2 c.m. Each, 5 c.m. Apart and muscle deep. It looked as if one was an entry wound and other. Exit wound. ' No neurorvescular deficit in the left upper limb. Breath sounds audible on both sides with few soft crepitaties. ' Injuries Nos.1 and 2 were kept under observation while injury No,3 was declared "Ghayr Gaifah Mutallahimah". All the injuries were caused by fire-arm and the duration of the injuries were within
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1-2/2 hours. The patient was admitted in the Surgical Ward No,4 on the same day. He issued the medical legal certificate Exh. PZ with a sketch showing seat of injuries vide Exh. PZ/1. He also signed injury statement Exh. PZ/2. ' Akbar Khan (i) There was an entry wound with inverted margins about. 1 c.m. x 1 c.m. On the lateral aspect of right groin with burn smoke; (ii) There was an exit wound with inverted margins of about 3 c.m. x 4 c.m. Muscle deep on the right buttock with ragged and irregular margins. No vascular deficit. ' Both the injuries were caused by fire-arm and were of the nature of "Ghayr Gaifah Mutalahimah", The probable duration of injuries was within 1-2/2 hours. The patient was admitted in the Surgical Ward No,4 on the same day. He issued the medico-legal certificate Exh. PAA with the sketch showing seat of the injuries Exh. PAA/1. He also signed the injury statement vide Exh. PAA/2. ' Muhammad Azam P.W.3 (i) There was swelling on the left side of the face at sub-mandibular region. Left mandible was fractured and crepitus was felt. He was feeling difficulty while opening his mouth. (ii) There was an entry wound with inverted margins 1 c.m. x 1 c.m. On the right side of neck. There was heamatoma at the root of the neck. X-Ray of neck was advised. (iii) There was a lacerated wound 1 c.m. x I c.m. With inverted margins at right axile at anteriar axiliary. X-Ray chest was advised. Breach wounds on right side of chest was diminished. Neuro- muscular status. Of the axilae was normal. ' According to the surgical notes, tracheostomy was done and haemothoras on the right lung was .Noted. Injury No,1 was caused by blunt weapon while injuries Nos.2 and 3 were caused by fire..-arm. Injury No,1 was "Shaj jah- - H ash imah " in nature whereas injuries Nos.2 and 3 were "Jailah". All the injuries were caused within 1-2/2 hours. Patient was admitted in the Surgical Ward No,4 on the same day. He issued the medico-legal certificate vide Exh. PBB and also signed the injury statement vide Exh.PBB/1 already prepared by the police. ' Akhtar Hussain (i) 1/2 c.m. Small lacerated wound with inverted margins at the lateral side of the upper thigh. (ii) 3 c.m. x 2-1/2 c.m. Lacerated wound with everted margins at the upper medial aspect of the right thigh. (iii) Lacerated wound at postero-medial aspect of the right knee measuring 1 c.m. x 1-1/2 c.m. Muscle deep. (iv) 3" x 2" lacerated wound on the lateral aspect of left lower thing. ' Margins were inverted. X-Ray of both thighs and knee were advised. ' The patient was admitted on the same day in ortho-ward. All the injuries were caused by fire-arm weapons and were kept under observation. Probable duration of injuries were within 1-2/2 hours. He issued medical-legal certificate Exh. PC with a sketch showing seat of the injuries vide Exh. PCC/1. He further signed the injury statement vide Exh. PCC/2. 9. In support of its case; the prosecution examined as many as 17. Witnesses. ' P.W.1 Major (R.) Muhammad Akram is the Manager Admn. Ashraf Sugar Mills who was present on his duty at the time of occurrence. He made the report Exh. PA and himself filed the same in Police Station Musafar Khana. He further deposed that on his return after lodging the report, he saw the dead bodies of Mehdy Khan and Ghulam Hussain deceased. He also stated to have seen Muhammad Azam, Akbar Khan and Muhammad Akhtar in an injured state. ' P.W.2 Muhammad Akmal, Security Guard was on duty on the date and time of occurrence. He is an eye-witness who stated about the assault by the accused on his person and the snatching of his official rifle. He affirms the firing by the accused at Akbar Khan, Security Guard who was injured. He also stated that the culprits broke the lock and the Iron Grill of the Accounts Branch and forcibly
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entered the said Branch. The culprits then fled after causing indiscriminate firing and as a result, Muhammad Azam, Security Officer, Muhammad Akhtar and Muhammad Zaman received injuries. Ghulam Hussain, Security Supervisor and Mehdy Khan, Security Guard were murdered as a result of the firing. This witness had also taken part in the identification parade but was not able to identify any of the accused. ' P.W.3 Muhammad Azam, Security Officer was present on duty at the time of occurrence and according to his statement, he was confronted by 7/8 culprits who were armed with Kalashnikov and .30 bore pistols, one of whom directly fired upon this P.W. One shot hit him on the left side of his face while the second fire injured him on the right side below his neck. He stated that he fully recognized his assailants and also identified All Hassan accused present in the Court as such attacker. This witness also took part in the identification parade held on 27-8-1998. He identified the accused Rab Nawaz, Ali Hassan and Ghulam Qadir with certainty during the identification parade. He was not able to identify the 4th accused namely Khan, Muhammad. ' P.W.10 Tariq Javed, MIC Bahawalpur confirmed having conducted the identification parade held in Central Jail, Bahawalpur on 27-8-1998. He deposed that the 4 accused were intermingled with 35/36 other prisoners who were arranged at random in different rows. Muhammad Azam P.W.3 was called for identififation whereupon he identified Ali Hassan, Ghulam Qadir and Rab Nawaz but could not recognize Khan Muhammad accused. He denied any suggestion if identifying P. Ws. Were briefed about the identity of any accused. ' P.W.11 Dr. Muhammad Siddique examined Muhammad Zaman, Akbar Khan, Muhammad Azam and Akhtar Hussain, all of whom were injured during the occurrence. He verified their injuries as per his reports on the record. ' P.W.13 is Abdul Majid, A.S.I. Who deposed regarding the arrest of the four accused, on 23-8-1998. Khan Muhammad was armed with Kalashnikov, Rab Nawaz with a 7MM rifle while Ghulam Qadir and Ali Hassan were empty-handed. All the four accused were arrested, as none of them had any licence in respect of the weapons in their possession. 27 live bullets were recovered from the Kalashnikov while 4 live bullets from the rifle of Rab Nawaz. Ghulam Qadir was driving Truck No,SLA- 3375 in which the accused were travelling. ' P.W.16 Muhammad A fzaal, S.I. Stated to have recorded the statement of Muhammad Azam P.W. Under section 161 Cr.P.C. On 4-3-1999. He also stated to have submitted the supplementary challan wherein the said Muhammad Azam was shown as one of the witnesses. ' P.W.17 Jam Manzoor Ahmad, S.-I. Stated that on 23-8-1998, he stopped a Truck No,SLA-3375 and arrested all the four accused.. According to him, Khan Muhammad was armed with Kalashinkov with 27 live -bullets while Rab Nawaz was armed with 7MM rifle with 4 live bullets which were taken into 'possession. Ghulam Qadir was found in possession of Rs,7,000 which were also recovered from him. The truck was also taken into custody. He further deposed that on 24-8-1998 all the accused were produced before the Magistrate and they were sent on judicial remand in the Central Jail, Bahawalpur. On 27-8-1998, the identification parade of all the four accused was conducted in the Jail. The statement of the Magistrate who conducted the identification parade was recorded on 28-8-1998. He further deposed regarding the vointation of the place of occurrence, by all the four accused. He also stated about trhe recovery of 7MM rifle upon the pointation of Ghulam Qadir and the recovery of one Kalashnikov upon the pointation of Rab Nawaz accused. ' He identified the handwriting and signatures of Abdul Rashid, S.I. And brought on the record exhibits, so prepared and signed by Abdul Rashid, S.I. Who had since proceeded abroad on official duty. 10. The other P.Ws.Were by and large formal in nature. After tendering in evidence the reports of Chemical Examiner vide Exh.PKK and Exh. PKK/1 and of Serologist vide Exh. PLL and Exh. PLL/1 and also
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the report of Forensic Science Laboratory, Lahore vide Exh. PMM, the prosecution closed its evidence. 11. All the accused in their statements under section 342, Cr.P.C. Refuted the prosecution allegations levelled against them. They also repudiated being in possession of any weapon of offence or having led to its recovery. They all termed the identification parade to be a fake show. They further maintained that they have been involved at the instance of Jam Manzoor -Ahmad, S.I. Who hails from Tehsil Sadiqabad where his brother Toty Khan was living like a terrorist and had differences with them. None of the accused got himself examined on oath no led any oral or documentary evidence in their defence. 12. The learned trial Judge' believing the prosecution evidence, convicted and sentenced the appellants as indicated above. 13. Sardar Ahmad Khan, Advocate for the appellants has challenged the judgment of the learned trial Court on the grounds that the accused were not named in the F.I.R. Nor their physical features mentioned therein. None of the culprits was arrested at the time of occurrence. Their subsequent arrest on 23-8-1998 and the delayed identification in the identification parade held on 27-8-1998 was a result of police manipulation and that no credence can be placed upon such identification. He placed reliance upon the case of Mushtaq Ali Kalhoro and two others v. State (1996 PCr.LJ 1315) in contending that the delayed identification by person who could have, if at all, only a fleeting glimpse of the assailants was not worthy of reliance. It was contended that the injured witness Muhammad Akmal failed to recognize any of the accused during the identification parade. He further stated that it was incumbent upon the identifying witness(es) to attribute specific role and weapon of offence to each of the accused. He next contended that the eye-witness account produced by the prosecution was sketchy and insufficient. Elaborating his submissions, it was urged that admittedly the complainant Major (R.) Muhammad Akram, Admn. Manager who appeared as P.W.1 was not an eye-witness of the occurrence. He lodged the repot upon hearsay version made to him by Inam Ullah, Telephone Operator who was not ,produced in evidence. It was stressed that out of the injured persons mentioned in the F.I.R., Muhammad Zaman, Muhammad Akhtar and Akbar Khan were also not produced by the prosecution. ' The learned counsel for the appellants pointed out irregularities in the investigative process. He referred to the fact that the statement under section 161, Cr.P.C. Of Muhammad Azam was recorded at a very belated stage ori4-3-1999 and that this would denude his statement of all legal value. The name of Muhammad Azam according to him, was not even mentioned in the original calendar of witnesses-:' Thele 'defects, it was urged, would vitiate the entire trial. ' It was lastly contended that no offence under section 396, P.P.C. Was made out. According to the learned counsel, there was no evidence on the record to prove the offence of dacoity or murder during the dacoity. He made reference to the provisions of section 396, P.P.C. And also cited the rule laid down in the case of Shyam Behari v. State of Uttar Pradesh (PLD 1957 Supreme Court (India) 281). 13. On the other hand, Mian Muhammad Bashir. Assistant Advocate-General, Punjab for the State and Mr. Sadiq Mahmood Khurram, Advocate for the complainant have supported the judgment of the learned trial Court. It was contended that the ocular account rendered by P.W.1, P.W.2 and P.W.3 was cogent and consistant. The recoveries of a large number of empties fired from different types of fire-arm weapons, the murder of two Security Personnel at the spot and injuries to many others, the medical evidence on the record regarding the injured and the deceased and last but not the least, the manner of arrest and identification had proved the guilt of the appellants upto the hilt. According to the learned counsel there was sufficient evidence of attempt to commit dacoity and that the offences as established by the learned trial Court were fully made out.
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14. We have considered the arguments advanced by the learned counsel for the parties and learned A.A.-G. For the State and have reviewed the entire evidence produced by the prosecution, the statement made under section 342, Cr.P.C. And all the attending circumstances of the case. 15. The occurrence took place on 21-2-1998 at 7-45 p.m., the F.I.R. Was promptly lodged on 8-15 p.m. On the same day by Major (R.) Muhammad Akram, Adnm. Manager P.W.1. He is a truthful witness when he does not claim to be the eyewitness of the occurrence itself, although, he was present in his office within the Mills premises. Arran Ullah who rendered the eyewitness account to him and on the basis of which the complaint was made, accompanied P.W.1 to the Police Station and was present when the F.I.R. Was registered. P.W.1 may not have been an eye-witness of the occurrence during its commission, yet he confirmed the murder at the spot of Ghulam Hussain, Security Supervisor and Mehdy Khan, Security Guard whose dead bodies lay at the spot when first report was made. He also deposed about seeing Muhammad Azam, Akbar Khan and Muhammad Akhtar is an injured condition. The evidentiary value of the statement of such a witness cannot be brushed aside on the ground that he was not an eye-witness of the occurrence itself. 16. The eye-witness account was given by Muhammad Akmal, Security Guard P.W.2 and Muhammad Azam, Security Officer P.W.3, both of whom sustained direct injuries during the occurrence. Both P.W.2 and P.W.3 narrated in details how the attempted dacoity took place. Both of them deposed that they were present near the main office of the Ashraf Sugar Mill when 8/10 persons armed with lethal weapons trespassed there. First of all, they deprived Muhammad Akrnal of his rifle and then caused fire, shot to Akbar Khan, Security Guard and after picking up his rifle, entered the main Accounts Office and tried to get the iron "Safe" opened when in the meanwhile, P.W. Muhammad Azam confronted them who was also fired at by .30 bore pistol which hit him on his fate and neck. He fell down there. During the course of committing dacoity, these culprits had further injured Muhammad Azam, Akbar Khan and Muhammad Akhtar and also caused the murder of Meh.-.'y Khan and Ghulam Hussain with fire shots. 17. The investigation in the case, immediately after the occurrence was conducted by Abdul Rashid, S.I./S.H.O.. Police Station Musafir Khana who proceeded to the spot and secured two empties and a live bullet of Kalashnikov rifle under a memo. Exh. PB, a broken lock P.3 vide Exh. PC, 10 empties of Kalashnikov P.4/1-10 and three empties of .30 bore pistol P.5/1-3 and 15 empties of Kalashnikov P.6/1-1 under a memo. Exh. PE. He also secured the bloodstained earth in respect of the deceased Ghulam Hussain and Mehdy Khan vide Exh.PF and Exh.PG. All the articles except broken lock were sealed on the spot. He also drafted a site plan without scale vide Exh.PKIC. He then…
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