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Petitioner: GHULAM QADIR PATNI VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Munib Ahmed Khan Title: GHULAM QADIR PATNI vs THE STATE Case No.: Special Criminal A.T. Appeal No.1of 2006 Date of Judgment:2007-05-03 Reported As: 2007 P Cr. L J 1435 Result: Order accordingly
JUDGMENT
JUDGMENT ' RAHMAT HUSSAIN JAFFERI, J.--- The present appeal is directed against the judgment dated 31-1- 2006 passed by the learned Judge, Anti-Terrorism Court No,III, Karachi, by which he convicted and sentenced the appellant as under:-- (a) for offence punishable under section 7(a) of the Anti-Terrorism Act, 1997 read with section 302, P.P.C. To imprisonment for life and fine of Rs,50,000 or in default thereof to R.I. For one year with direction to pay compensation of Rs,1,50,000 to the legal heirs of the deceased or in default thereof to R.I. For two years; (b) for offence punishable under section 324, P.P.C. To seven years' R.I. And fine of Rs,25,000 to be paid to the injured P.C. Ansar Mahmood or in default thereof to R.I. For six months; (c) for offence punishable under section 392, P.P.C. To ten years' R.I. (d) for offence punishable under section 353, P.P.C. To two years' R.I. (e) for offence punishable under section 13(e) of Pakistan Arms Ordinance, 1965 to three years' R.I. With benefit of section 382-B, Cr.P.C. ' Brief facts giving rise to the present appeal are that the complainant P.C. Ansar Mahmood and the deceased P.C. Muhammad Jehangir were posted as constables at Baghdadi Police Station. On 23- 3-2005 the complainant and the deceased armed with SMGs on an official motorcycle bearing Registration No,C-17371 were on patrol duty. The deceased was driving the motorcycle. At about 7- 15 p.m. They reached D.D. Chaudhry Road, Baghdadi where they noticed a motorcycle on which two persons were sitting coming towards them. They suspected the said persons and signaled them to stop, but the said persons instead of stopping the motorcycle took turn in a street and tried to escape, therefore, the complainant and the deceased followed them.
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' When they reached near them they again signaled them to stop, but they did not do- so, therefore, the complainant party overtook them and stopped their motorcycle by blocking their ways. The motorcyclists started firing at the complainant parry. They received injuries with the result that the complainant fell down on the ground, whereas deceased tried to move ahead on his motorcycle, but fell down on the ground. The culprits went to the deceased PC Muhammad Jehangir, snatched the -SMG from him and then one of them started firing from the SMG at him, who received the injuries. Thereafter, both the culprits along with the SMG of the deceased Muhammad Jehangir went away on their motorcycle. After the departure of the culprits, persons assembled there, the complainant was shifted to hospital in a rickshaw, whereas PC Muhammad Jehangir was shifted to hospital in a taxi. Police reached in the hospital where statement of the complainant was recorded, which was sent to the police station for incorporating it in 154, Cr.P.C. Book for registration of the case. ' The police visited the scene of incident, secured three empty bullets shells of SMG, six empty bullet shells of T.T. Pistol and blood from the place of incident in presence of private MashiRs, On 25-6- 2005 the appellant was arrested from police station as he was already arrested in some other case. The appellant led the police party to his house and produced robbed SMG of deceased PC Muhammad Jehangir from a trunk lying in a room of the house in presence of private MashiRs, The police sent the crime-empties to Expert on 26-3-2005 after three days of their recovery. The appellant-was produced before a Magistrate for holding identification test through complainant and P.W.8 eye-witness Abdul Qadir. They identified the appellant to be the culprit of the crime, who snatched the SMG from the deceased and fired at him. The SMG produced by the appellant was also sent to Expert on 5-7-2005. The Expert examined both the articles and found that three empty bullet shells of SMG were fired from the SMG produced by the appellant. The police after usual investigation challaned the appellant in the Court where he was tried and convicted as mentioned above under the impugned judgment. ' We have heard the Advocate for the appellant, A.A.-G. For the State and perused the record of this case very carefully. ' The learned Advocate for the appellant has stated that ocular testimony of two P.Ws. 1 and 8 is of doubtful nature; that the incident was alleged to have taken place at 7-15 p.m.; that the sun had set at about 6-35 p.m., therefore, there was darkness and the prosecution did not show the source of light; that the witnesses had no opportunity to see the faces of the culprits; that the prosecution did not give the number of - the SMG snatched from the deceased or any record was produced to prove that the SMG was officially issued to the deceased; that the statements of witnesses were recorded late. He has further stated that the SMG was secured from a house which was jointly occupied by the father and mother of the appellant, therefore, the recovery of SMG was not from the exclusive possession of the appellant, hence, it cannot be connected with the crime. He has further stated that the appellant had injury on his forehead at the time of identification parade, but the Magistrate did hot conceal the said injury; that dummies with the similar type of injuries were not mixed up with the appellant, as such, the identification test has lost its evidentiary value; that the case was falsely prepared by the Inspector Sarwar Commando, who was known as notorious Police Officer as there was enmity between the appellant and the Inspector Sarwar Commando, therefore, the appellant was falsely involved in the case. ' Conversely, the learned A.A.-G. Has stated that both the eyewitnesses have fully supported the case and implicated the appellant with the commission of the crime; that the presence of P.W.1 at the scene of incident cannot be doubted as he is injured witness; that the presence of second eye- witness P.W.8, who was selling sizzling grain on handcart from a very long period and had witnessed the incident cannot be doubted; that his presence has seen established from the statement of the Investigation Officer, who firstly reached at the place of incident and prepared-
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the Mashirnama; that the witnesses have deposed that the incident took place at about sunset time, therefore, the time of incident should be sunset time; that the witnesses have disclosed approximate time of incident as 7-15 p.m. Which can be ignored in presence of specific statement. He has further stated that the Magistrate noted injury on the forehead of the appellant, but he did not conceal the same, however, the said fact would not diminish the value of the identification test. He has further stated that the appellant led the police party to his house and produced the SMG, which was robbed from the deceased; that the SMG was secured on the information of the appellant and through his conduct; that the, appellant had exclusive knowledge of the SMG which he had produced; that the prosecution has alleged the said recovery from the appellant only; that the said SMG has been connected with the crime through Ballistic Expert's report; that the P.W.1 and deceased were on official duty and were armed with SMGs, therefore, under the law they were required to, carry SMGs, hence non-production- of record would not affect the robbery of SMG. He has supported the impugned judgment. ' We have given due consideration to the arguments, gone through the evidence available on the record with the assistance of the learned advocate for the appellant and found that the case of the prosecution rests upon the three pieces of evidence; (1) ocular testimony, (2) identification test and (3) recovery. ' The ocular testimony consists of P.W.1 the complainant PC Ansar Mahmood and P.W.8 Grain Seller Abdul. Qadir. The complainant gave the same details of the incident as mentioned in the earlier part of the judgment. He specifically stated that when they signaled the motorcyclists to stop their motorcycle they did not do so, but turned and went in a street, therefore, they followed them. Again they signaled them to stop, but they did do so but were successful to stop their motorcycle by blocking their way. Thereafter, the appellant and his companion started firing from their pistols which hit the deceased and the complainant, with the result, the complainant fell down on the ground and the deceased tried to move the motorcycle, but was unsuccessful and he also fell down at some distance. The appellant and his companion went to the deceased, snatched his SMG and from the said SMG the appellant fired at the deceased which hit him and then the appellant and co-accused went away. On their motorcycle with the SMG of the deceased. ' The evidence of P.W.8 reveals that he was selling sizzling grain on handcart at the place of incident since about 10 or 12 years prior to the incident. On the date and time of the incident he saw a motorcycle on which two persons were sitting which was being followed by the motorcycle on which two police officials were sitting. The police signaled the motorcyclists to stop their motorcyMe, but the culprits on the motorcycle started firing from the, pistols at the police party with the result that they received injuries and one of them, who was sitting on the rear seat, fell down on the ground. The driver of the motorcycle viz. The deceased tried to move the motorcycle ahead, but he could not do so and fell down along with motorcycle. Thereafter, the appellant and his companion went to the deceased, snatched his SMG and then one of them fired at the deceased with the said SMG, who received injuries and then they went away on their motorcycle with the SMG of the deceased. Both the witnesses were subjected to cross-examination, but the defence counsel could not shake their evidence. Their evidence is unanimous on salient features of the incident. There are no material contradictions and discrepancies in their evidence. The presence of P.W.1 at the scene of incident cannot be doubted as he has injuries on his person. The .P.Ws. Have no enmity whatsoever with the appellant nor any direct enmity was suggested between them. Their evidence is natural. They gave the details of the incident as seen by them at the place of incident. From their evidence the incident, as alleged by the prosecution, has been established. Furthermore, during the investigation P.W.3 Ansar. Mahmood, who reached the place of incident and investigated the case at the initial stage, recorded the statements of P.Ws. Fazalur Rahman, Mehboob and Naseer Khan.
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The defence counsel enquired from the Investigation Officer that in their statements they stated that immediately after firing they took shelter in their shops, therefore, they could not witness the incident. The Investigation Officer stated that the witnesses deposed so before him. From this fact, it has also been established that the incident of firing took place at the place of occurrence which was also seen by the above named three witnesses, who were the shopkeepers of the area. ' As regard the involvement of the appellant, the prosecution has tried to prove the said fact through the identification test. The Judicial Magistrate P.W.9 Abdul Qadeer stated that the appellant had cut mark on his forehead; but he did not conceal it. The said fact has also been admitted by the eye-witness. Thus, at the time of identification test appellant had specific mark through which he could have been identified very easily, if such fact is informed to the witnesses. In such circumstances, it was the duty of the Magistrate to have concealed the said cut mark or the dummies with similar cut mark should have been mixed up with the appellant so as to strengthen the process of identification test and eliminate the possibility of tutoring the witnesses in picking the appellant, as such, through this piece of evidence the identity of the appellant has not been established, beyond any reasonable doubt. ' The prosecution has also tried to connect the appellant with the recovery of SMG of the deceased from him. The prosecution alleged that three empty bullet shells of SMG and six empty bullet shells of T.T. Pistol were secured from the place of incident by the P.W.3 in presence of P.W.8 and another private Mashir. The prosecution examined P.W.3 SIP Ansar Mahmood and P.W.8 Abdul Qadir. They specifically stated that the above-mentioned articles were secured from the place of incident and were sealed. Within three days of the said recovery the crime-empties were sent to the Ballistic Expert. The said articles were received by him on 26-3-2005. Thereafter, the matter was investigated by another Police Officer. On 25-6-2005, the appellant was arrested. He led the police party to his house and produced SMG from a box lying in a room of his house. The SMG was sealed and it was sent to the Ballistic Expert, which was received by him on 5-7-2005 viz. After 2-1/2 months of sending of the crime-empties to him. The Ballistic Expert examined the articles and found that three empty bullet shells of SMG were fired from the SMG produced by the appellant. Thus, from the said evidence, it has been established beyond any reasonable doubt that the SMG produced by the appellant was the same SMG which was used at the scene of incident. It is not the cast of the prosecution that the appellant was armed with his own SMG, but the appellant and his companion were armed with TT pistols. It is the case of the prosecution that theappellant had snatched the SMG from the deceased and then fired from it at him. The said fact has been established from the recovery of three empty bullets shells of SMG from the place of incident which matched with the SMG produced by the appellant, as such, there is no hesitation in holding that the SMG produced by the appellant was the same SMG, which was carried by the deceased at the time of incident and was snatched by the appellant and then fired at him. Through this piece of evidence the appellant has been connected with the commission of crime. ' It is pointed out that under Article 40 of the Qanun-e-Shahadat Order, 1984, if any discovery is made on the information of the accused, who is in custody, then that evidence is. Admissible. Further, under Article 21 of Qanun-e-Shahadat Order, 1984, the conduct of the accused in leading the police to the place of recovery and producing the article is also admissible in evidence. In the present case, at the initial stage appellant provided information to the Police Officer when he was in custody then he led the police party to his house and produced the SMG before the police, therefore, the evidence is admissible under the above provisions of law. ' It has been brought on the record that the appellant produced the SMG which was lying in a trunk in a room of the house. The conduct of the appellant clearly shows that he took the police directly to the trunk which was lying in the room of the house and after opening it he produced the same. From this fact, it is clear that he had knowledge about the presence of the SMG lying at a particular
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and specified place, therefore, he did not hesitate in leading the police and directly went .To the said place and produced the SMG. This conduct clearly demonstrates that the appellant had full knowledge and conscious possession of the SMG, which was' lying in the trunk in the room. Under these circumstances, the provisions of Article 122 of Qanun-e-Shahadat Order, 1984, wou?d be, attracted under which if any person has especial knowledge of any fact then he is required to prove the said fact. Thus, under the said Article appellant was required to prove the circumstances under which he came to know about the presence of the SMG in the box lying in the room of the house, but the accused could not produce any evidence to prove such aspect of the case. ' The learned Advocate for the appellant has argued that the recovery was made from a house which was jointly occupied by his father and mother, therefore, it was not from the exclusive possession of the appellant, hence it cannot be safely relied upon. No doubt the house from where the property produced by the appellant was jointly occupied by his father and mother. It has been brought on the record that the father was an old man. Both the eye-witnesses have deposed that the culprits were young persons. The appellant is also a young person apparently, father of the appellant was not present at the place of incident or he snatched the SMG from the deceased because he was not falling with the age group as stated by the eye-witnesses. The appellant was the young person. The prosecution also alleged that young person had committed the crime. ' In these circumstances, we are of the considered view that the father of appellant cannot be saddled with the responsibility of the possession of the SMG. The prosecution has specifically alleged the possession of SMG against the appellant only and for that they have led evidence and proved the fact. ' The question as to whether the property secured from a house jointly occupied by several persons can be held to be in possession of one or two or all the persons was examined by various High Courts of Sub-Continent. The earlier 'View of the superior Courts was that the head of family would be responsible for possession of the property secured from a house jointly occupied by several persons. The said view was being followed by some High Courts then subsequently, in the case of. Emperor v. Santa Singh AIR 1944 Lah. 339 a Division Bench of the Lahore High Court referred the question for constitution of larger Bench to examine the correctness of the said view. The larger Bench was constituted which examined the entire case-law on the subject, but did not approve the said view and after relying upon the then section 106 of the Evidence Act, which is corresponding to Article 122 of Qanun-eShahadat Order 1984, observed that mere recovery of incriminating article from a premises jointly occupied by several persons does not establish prima facie guilt of any particular person or all of them jointly, therefore, they cannot be called upon after production of such evidence to establish their innocence within the meaning of section 106 of Evidence Act. Nevertheless, they can only be called upon to do that when the evidence is established a "prima facie" case against anyone or more of them or all of them. Thus, in a case where recovery is made from a premises jointly occupied by several persons then firstly the prosecution has to lead evidence to show that the said recovery was alleged against one or more of them or all of them and if from a reliable evidence such allegation has been proved against one or more persons then the said person or persons would be required to establish his or their innocence within the meaning of Article 122 of Qanun-e-Shahadat Order, 1984. ' The Honourable Supreme Court of Pakistan in the case of State v.. Qazi Pervez Iqbal PLD 1978 SC 64 considered the decision of Full Bench of Lahore High Court in the case of Santa Singh (supra) concurred with the view taken by the Full Bench and at page 76 observed as under:- ' The appellant was prosecuted both under section 5 of the Explosive Substances Act and under section 20 of the Arms Act on the charge that he was in possession of explosive as well as a very large quantity of fire-arms. The fire-arms and explosives were found in the appellant's house and as his father, wife and family also lived with him, the appellant's plea inter alia was that the charge
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against him was not proved because he was only one of several occupants of the house in which the incriminating articles had been discovered. The trial Court accepted his plea and acquitted the appellant. This acquittal was challenged in an appeal in the Lahore High Court, which came up for hearing before a Division Bench of the High ,Court and in view of conflict of authority on the meaning of the words "possession" and "control" in the relevant statute, the learned Judges of the Division Bench referred two questions to the Full Bench. The first question was whether all the persons occupying a house are liable for the incriminating article in that house and the second question was whether in such a situation the occupants of the house had to "account for the presence of the incriminating articles in their premises". After examining the judgments of the High Court, the learned Judges of the Full Bench held that constructive possession or control could not fall within the mischief of the Explosive Substances Act and they answered the questions referred to them as follows:-- "I respectfully agree with these observations, that section 106, Evidence Act, cannot be used to strengthen the, evidence for the prosecution. The prosecution must stand or fall on the evidence adduced by it and until a prima facie case is established by such evidence, the onus does, not shift on to the accused. Mere proof that an incriminating article is found in premises occupied by a number of persons does not in itself establish prima facie the guilt of any particular person or all of them jointly. That being so, they cannot be called upon after such evidence to establish their innocence. They can only be called upon to do that when the evidence has established a prima facie case against anyone or more of them or all of them." ' I respectfully agree with these observations which coincide with my own views on these questions." ' In the present case, the prosecution was made from the appellant only. The said fact has been established from the evidence of P.W.12 Investigation Officer and the private witness P.W.5 Noor Muhammad His evidence reveals that on 26-6-2005 at 12-30 a.m. He along with P.W. Babu was sitting on a cemented Thalla. When the police arrived and requested them to act as Mashirs as the accused was going to produce article. He also saw the appellant with the police. He was in handcuff then he led to a room of the house from where he took out box and produced SMG which was sealed at the place of incident. As the prosecution has proved the above fact against the appellant, therefore, the appellant was required to explain his position, but he did not lead any evidence. Thus, the arguments of the learned Advocate for the appellant has no force. ' Learned Advocate for the appellant has further argued that the prosecution did not produce the record of SMG from the police station. No doubt the prosecution has not produced record of SMG, but Investigating Officer P.W.12 specifically stated in the examination-inchief that he had checked the number of SMG which was 32447. The said weapon was entered in the name of deceased PC Muhammad Jehangir and this was the same SMG which was sent by the police. The said piece of evidence went unchallenged as no cross-examination was conducted to the witness denying the said fact. It is well-settled principle of law that if a statement of witness is not challenged in the cross-examination then it is presumed to have been accepted by the other side to be true. Even otherwise, through Ballistic Expert's report and the evidence available on the record SMG produced by the appellant has been fully connected with the deceased, as such, the prosecution has established the fact that SMG was in the possession of deceased which was snatched from him by the appellant who used it for committing the murder of the deceased and produced the same from his house. From the evidence available on the record, it has been established beyond any shadow of doubt that the deceased was in possession of the SMG, which was robbed from him, as such, it was a robbed property. After 2-1/2 months of the incident the said robbed SMG was produced by the appellant and the same was secured by the police, therefore, under illustration (a) of Article 129 of
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Qanun-eShahadat Order, 1984, the appellant is either robber or receiver of robbed property unless he accounts for his possession, which he has failed to do so. The appellant has not furnished any explanation whatsoever on the above subject, therefore, required presumption is raised against the appellant. Similar point was considered by a Division Bench of this Court in Special Anti- Terrorism Appeal No,57 of 2001 and Confirmation Case No,8 of 2001, one of us, namely, Rahmat Hussain Jafferi, J., was member and author of the judgment took the similar view by observing as under:-- "(34) We have already held that the motorcycle was robbed from the possession of deceased at the time of commission of the murder. On the said point there is…
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