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Petitioner: Haji SHAUKAT ALI VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Raja Fayyaz Ahmed, Tariq Mehmood Title: Haji SHAUKAT ALI vs THE STATE Case No.: Criminal Appeal No,301 and Criminal Revision No, 157 of 1999, Date of Judgment:2001-06-14 Reported As: 2001 YLR 3198 Result: Petition allowed/order accordingly.
JUDGMENT
JUDGMENT ' RAJA FAYYAZ AHMED, C.J.-Appellant Haji Shaiikat Ali has been convicted under section 302(c), P.P.C. And sentenced to twenty five (25) years' R.I. And to fine of Rs,1,00,000 in default of payment of fine to further undergo S.1. For three years vide judgment dated 30-9-1999 passed by the learned Additional Sessions Judge-IV, Quetta in Sessions Case No,61 of 1998. ' Criminal Revision No,157 of 1999 has also been filed by the father of the deceased lady namely Abdul Razzaque against the impugned judgment seeking for enhancement of the sentence awarded to the appellant to that of death penalty in accordance with law, therefore, by this common judgment, we intend to dispose of this Criminal Appeal as well as the Criminal Revision. 2. Brief facts of the case are that on 24-6-1997 on receipt of information by IP/S.H.O., Police Station, Saddar Quetta Malik Muhammad Ali (not produced at the trial) that a woman in injured condition has been brought to the Civil Hospital, Quetta he alongwith Abdul Aziz S.I./A.S.H.O., Abid Hussain A .S.I., Constables Police Abdul Ghaffar and Muhammad Ibrahim as per 'Roznamcha' entries proceeded to Casualty Department of Civil Hospital, Quetta, where he found a woman lying in injured condition in the Casualty Department of the hospital, whose name after their arrival was disclosed to be Mst. Kauser Razzaque wife of Amir Muhammad, Caste Raisani and on bodily inspection of the injured I.P./S.H.O. As per Murasila Exh.P/9-A sent to the Police Station, found two bullet wounds on the right leg and abdomen of the lady about which according to the Police Officer he came to know that on the said date about 8-45 a.m. Haji Shaukat Ali who happens to be the brother of her husband on account of a domestic dispute injured the lady by means of firing. He accordingly; prepared the injury report and handed over the same to the duty Doctor, who admitted the injured woman for treatment in the ward. It has further been noted in the Murasila
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Exh.P/9-A that Mst. Kauser Razzaque was found to be unconscious and thus; was not in position to give statement and at 10-15 p.m. On the same date murasila was sent tothe police station for registration of the case under section 324, P.P.C. Against accused Haji Shaukat Ali. 3. P. W . Abdul Aziz S I P /Pol ice Station Saddar was entrusted with the investigation of the case after registration of the F.I.R. He prepared sketch of Wardat after inspecting the site and on receipt of information that Mst.Kauser Razzaque has succumbed to injuries he proceeded to the hospital and prepared inquest report of the deceased and sent the dead body of the deceased for post- mortem examination and; on application of the husband of the deceased lady namely Amir Muhammad without postmortem examination dead body was handed over to him under orders of the Assistant Commissioner/SDM. During the course of investigation Haji Shaukat Ali allegedly made disclosure to Investigating Officer pursuant to which he affected recovery of a revolver and an Arms licence, taken into possession by the Investigating Officer, who also took into possession four empties on unloading the revolver and prepared relevant memos: relating to the recoveries etc. And recorded statements of P.Ws. Under section 161, Cr.P.C. The revolver and empties were sent to Fire-Arm Expert, Karachi for examination and report, whereas: the blood-stained clothes of deceased were also sent to F.S.I,. For examination and report by the S.H.O. On receipt of expert report from F.S.L., Quetta and death certificate issued by the Medical Officer, incomplete challan was filed in Court. On receipt of expert report complete challan was finally submitted in the Court, after completion of the investigation. 4. The learned Sessions Judge, Quetta consequent upon submission of the challan and papers of the case, transferred the same to the file for learned Additional Sessions Judge-II, Quetta ' and thereafter, during pendency of the trial, the case was transferred to the file of learned Additional Sessions Judge-IV, Quetta. The learned transferee Court hereinafter referred to as the learned trial Court indicted the accused on the charge under section 302, P.P.C. In the light of accusation as contained in the FIR., on account of the injured having succumbed to wounds, to which he pleaded not guilty and the prosecution to substantiate the accusation preduced nine (9) witnesses namely Dr.Khalid Hamayun, Medico-legal Officer, Casualty Department, Civil Hospital, Quetta (P.W.1), Syed Abdul Jabbar, Chemical Expert, F.S.L., Quetta (P.W.2), Abdul Razzaque (father of deceased, P.W.3), Amir Muhammad (husband of deceased, P.W.4), Haji Sher Muhammad (father of accused, P.W.5), Ghulam Farid, Constable/Police Station Saddar (P.W.6), Abid Hussain A.S.I. (one of Mushirs, in whose presence bloodstained clothes of the deceased were taken into possession by the S.I.P., P.W.7), Muhammad Naseem, police constable (in whose presence allegedly revolver and empties etc. Were taken into possession, who statedly accompanied the Investigating Officer and Malik Muhammad Ali I.P./S.H.O. To Civil Hospital, Quetta on receipt of information and is also the witness relating to the recovery of revolver etc. P.W.8) and Abdul Aziz, S.I.P./Investigating Officer (P.W.9). ' After close of the prosecution evidence, accused was examined under section 342, Cr.P.C. In the light of the accusation and the incriminating pieces of evidence. He did riot opt to record his statement on oath within the .Purview of section 340(2), Cr.P.C. And produced only one witness in defence namely Ahmed Jan. After close of the parties 'case, the learned trial Court vide judgment impugned herein convicted and sentenced the accused as herein aforementioned. 5. PROSECUTION EVIDENCE. ' Khalid Hamayun, Medico Legal Officer, Casu/lty Department, Civil Hospital, Quetta. ' According to the Medical Officer on 24-6-1997 he was on duty in the Casualty Department of Civil Hospital. Quetta when at about 10-00 p.m. a woman in injured condition namely Kauser Razzaque was brought to him for medical examination which he conducted and found the following injuries on her person:-- "INJURIES: 1. An opening of about 3 x 2 c.m. Lateral side of right thigh on upper region.
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2. An opening of about 3 x 3 c.m. Just below the umbilical' on mide line containing omentum with fatty tissues. 3.An entrance of about 1 x 1 c.m. With tattoo marks on left side of abdomen. 4. Bruise on all lower abdominal region. 5. Abrasion with tattoo marks of about 3 x 1 c.m. With skin removed just like bullet on upper most region of left thigh anteriorly located. 6. Abrasion line shaped vertically located just medial to first mentioned wound on left thigh enteriorly." ' The Medical Officer deposed further that emergency treatment was provided to the lady in the Casualty Department and IV route maintained and; her general condition was not satisfactory therefore, she was referred to female surgical unit where she did not improve and expired at 11-30 p.m. On the same night. Her death was certified by the Doctor on duty in Female Surgical unit. As per Opinion of the Medical Officer the possible cause of death was the injury to the abdominal cavity of the lady e.g. Internal and external, bleeding, shock and death. Dr.Khalid Hamayun further deposed that as per X-ray report multiple fractures were observed on pubosacral bone on either sides. He produced the M.L.C. Issued by him under his signature after examination of the injured as Exh.P/1-A . ' Sved Abdul Jabbar, Chemical Expert, F.S.L., Quetta (P.W.2). ' He has produced the Chemical Expert report issued by him under his signature as Exh.P/2-A. He deposed that on 1-8-1997 a sealed parcel of blood-stained 'Shalwar' and 'Qameez' was received in F.S.L. From Police Station Saddar, Quetta and on chemical analysis of these articles he came to the conclusion that the same were stained with human blood. ' Abdul Razzaque son of Amir Bakhsh (P.W.3). ' He is father of deceased Mst. Kauser Razzaque. He stated that on 24-6-1997 at 9-00 p.m. He was present in his house situated at Arbab Ghulam All Road when his sister-in-law namely Sakina Bibi told to him that she was informed by Haji Sher Muhammad that Haji Shaukat Ali (accused) was cleaning his revolver when it went off and the bullet hit on the leg of Kauser Razzaque. He explained that Mst. Kauser Razzaque was her daughter and wife of Amir Muhammad and that Mst. Sakina is also the sister-in-law of Haji Sher Muhammad and wife of his uncle as well as happens to be his aunt (mother's sister). He further deposed that he was told that his daughter Mst. Kauser Razzaq had been shifted to General Hospital and he should reach there (objection to the admissibility of such part of the statement of the witness was taken by the learned defence counsel being hearsay on the ground that Mst. Sakina was not cited as prosecution witness in the calendar of witnesses). ' Further P.W.3 stated that he alongwith his son Shahid Razzaque left for General Hospital in a Rickshaw and saw that her daughter Mst. Kauser was being shifted in ambulance by her husband Amir Muhammad including mother of Amir Muhammad and other ladies and proceeded to Civil Hospital, Quetta and he also in the vehicle of Amir Muhammad left for Civil Hospital, Quetta and when she was being removed from the ambulance, he approached to his daughter and asked as to what had happened to her, to which in very weak voice, according to the Witness, she stated that she had done nothing and; did never use/apply amulet etc. And for no justification she has been fired at by Shaukat Ali. Father of the injured, further stated that she was shifted to ward but succumbed to injuries at 11-30 p.m. The witness stated that his daughter was in senses and also asked for water to her husband Amir but the Doctor did not allow and; her dead body was received by Amir Muhammad and on the next day she was buried. He identified the appellant as the accused. ' Amir Muhammad son of Haji Sher Muhammad (P.W.4), ' According to him deceased Mst. Kausar Bibi, who was his aunt's daughter, was married to him on 20-5-1990 and; out of wedlock three children took birth and; on the date of incident on 24-6-1997
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at 8-00 p.m. After meal he went to a shop situated near to his house and after half an hour a child came to him and informed that he has been called to home and when he went to his house he found his wife lying injured in the veranda and did not see who had injured her. ' At this stage, the learned State counsel requested that the witness may be declared hostile on the ground that he was concealing the facts. The learned Court after hearing the parties' counsel declared the witness as hostile and afforded opportunity to the State counsel to cross-examine the witness, which opportunity he availed. The learned defence counsel did not avail the right of cross- examination despite opportunity. ' Haji Sher Muhammad son of Abdul Ghafoor (P. W .5). ' He deposed that on 24-6-1997 he was not present in his house and came back at 10-00 p.m. And found that his children were weeping and; on being asked he was told that their 'Bahbi' wife of Amir Muhammad was lying injured in the veranda due to firing and on being further asked, the children told to him that they did not see anybody as having resorted to firing. ' At this stage, on the request of learned A.D.A. This witness was also declared hostile by the learned trial Court after hearing the parties, accordingly; opportunity of cross-examination was afforded to the State counsel, who availed the same. Also; the learned defence counsel cross-examined the witness. ' Ghulam Farid, Constable Police Station, Saddar, Quetta (P.W.6). ' According to him on 3-7-1997 he was posted in Police Station Saddar and on the said date, accused Shaukat Ali was in police custody, who was taken to his house situated in Deba by Aziz S.I. Accompanied by Irfan and by the witness and the accused from his residential room situated towards north produced a revolver from an with arms licence issued in the name of his father, Haji Sher Muhammad. The witness further added that the accused disclosed that he killed his 'Bahbi' by means of the same revolver (admissibility of the such part of statement of the witness was objected to by the learned defence counsel). The witness further stated that Abdul Aziz, S.I. Prepared memo: on which he and Irfan inscribed their signatures as 'Mushirs', but does not remember as to how many other articles were taken into possession by the Police Officer and that parcel of the recovered revolver was prepared. He produced the memo: as Exh . P/6- A . ' The learned counsel for the complainant Mr.Akhtar Zaman pointed out to the Court that deliberately false statement has been made by the witness that he and Irfan inscribed their signatures on the . Parcel although; on the memo: as well as on the parcels Muhammad Naseem had inscribed signatures as one of the 'Mushirs' and similarly he dishonestly mentioned about the room other than from which the revolver was recovered. The learned trial Court after hearing the parties' learned counsel and the learned State counsel declared the witness as hostile and afforded opportunity of cross-examination to them. The learned counsel for the complainant under instructions from A.D.A. Availed the opportunity of cross-examination and also the witness was cross-examined by the learned defence counsel. ' Abid Hussain A.S.I./Police Station the then Police Station Saddar, Quetta (P.W.7). ' He along with S.H.O./Police Station Saddar and Tasleemul Hassan on 25-6-1997 went to the house of Haji Sher Muhammad for collecting blood-stained clothes of the deceased lady which were handed over to the S.H.O. By Haji Sher Muhammad, who took the same into possession vide memo: Exh.P/7-A produced by the witness bearing his signatures as one of the 'Mushirs'. He produced the blood-stained clothes and the parcel in which these were sealed in his presence as articles, in Court. ' Muhammad ' Naseem, the then Constable Police, the Police Station Saddar, Quetta (P.W.8). ' According to him on 26-9-1996 he was on duty in Police Station Saddar when Aziz Buzdar S.I.P. Called them to the room of S.H.O. And in their presence during interrogation made by Aziz Buzdar S.I., accused Haji Shaukat Ali, disclosed that he can lead to the recovery of the revolver, with which
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he killed his 'Bahbi' and thereafter, S.H.O. Took the accused along with them to Deba road and they entered in the house and from iron almirah of residential room of the house accused took out a revolver and produced the same to Aziz Buzdar and on being unloaded four empties were recovered from the revolver. He added that the revolver and the empties were sealed into parcels and memo: was prepared by the Police Officer in his preience on which he put his signatures as one of the 'Mushirs'. He produced the memo as Exh.P/6-A and the parcel along with its contents e.g. Revolver and the empties as articles. ' Abdul Aziz, S.I.P./Investigating Officer (P.W.9). ' On 24-6-1997 he was posted in Police Station Saddar, Quetta and according to him I. P. /S. H .0. Malik Muhammad Ali informed to him that a lady has been brought to Civil Hospital in injured condition therefore, he along with the S.H.O. Left for the hospital, where a lady namely Mst.Kauser Razzaque was found lying in injured condition and; thereafter, the S.H.O. Sent murasila to the police station for registration of case under section 324, P.P.C. Which he produced as Exh.P/9-A by identifying the signature of Malik Muhammad Ali the then S.H.O. (since deceased). He was entrusted with the investigation of the case. According to the witness he found bullet wounds on the person of Mst. Kauser Razzaque, who was admitted in the ward by the Doctor and from the hospital he left for the place of incident i,e, house of Haji Sher Muhammad and carried out inspection of the site and prepared the sketch of Wardat which he produced as Exh.P/9-B bearing his signature and also recorded statement of Haji Sher Muhammad. He added that when he was present at the place of incident information was received that Mst. Kauser succumbed to injuries therefore, he left for the hospital and prepared inquest report which he produced as Exh.P/9-C and the dead body was shifted to mortuary for postmortem examination and on application of the husband of lady namely Amir Muhammad, dead body was handed over to him without conducting postmortem under the orders of the Assistant Commissioner/S.D.M. He also produced application moved by Amir Muhammad as Exh.P/4-A wherein' according to the witness it was mentioned that his wife has been killed by his brother Haji Shaukat 411. The witness deposed that search for accused Shaukat Ali was made but he was not traceable and ultimately; was arrested on /9-6- 1997 and on 3-7-1997 during course of interrogation accused disclosed in police station that he can lead to the recovery of revolver with which he killed his 'Bahbi' therefore, they along with accused went to his house, who produced a 32 bore revolver with its licence issued in the name of Haji Sher Muhammad from the almirah of a residential room of his house and on unloading the revolver four empties were recovered, which were sealed into parcel in his presence and were taken into possession by memo Exh.P/6-A. He produced the revolver, licence and the empties and the parcels as articles in Court. After recovery of the revolver Murasila was sent to the police station for rejstration of the case against. Accused section 13-E of Arms Ordinance, 1965. He also sent the blood-stained clothes of the deceased and the empties for examination and test analysis to the laboratory. He explained that since the microscope available with the F.S.L. Was not in order, therefore, he sent the revolver and the empties to FireArms Expert, Karachi for examination and report and on 15-7-1997 case file was handed over to the S.H.O. For preparation of incomplete challan. He produced the incomplete challan prepared by S.H.O. Malik Muhammad Ali (since dead) as Exh.P/9-D by identifying the signature of late S.H.O. Subsequently report of articles from F.S.L. Was received and supplementary challan was prepared by the then S.H.O., which he produced as Exh.P/9-D and on receipt of death certificate of deceased Mst. Kauser Razzaque the third incomplete challan was submitted in Court and on receipt of report of Fire-Arms Expert on 23-6- 1998 complete challan was submitted in Court on 23-6-1999. He tendered in evidence report of the Fire-Arms Expert, Karachi as Exh.P/9-G and the complete challan was produced as Exh.P/9-H prepared by the then S.H.O./Police Station Saddar. He identified the appellant as the accused. 6. DEFENCE EVIDENCE
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' Ahmed Jan son of Khudai Rahim, Shopkeeper, Killi Deba, (D.W.1). ' He deposed that he is a shopkeeper by profession in Killi Deba and knows accused Haji Shaukat Ali, present in Court, whose house is situated at a distance of 10/12 ft: from his shop. According to him he (D.W.) used to sit in his shop from the morning at 6-00 a.m. To 4-00/5-00 p.m. He further stated that he does not remember the exact date, but it was in the month of June and after 8/10 of death of the wife of Amir Muhammad whet police came to his shop, Haji Sher Muhammad also came out of his house with whom the police had talked at the door; during process whereof; Haji Sher Muhammad handed over a revolver to the police along with a book having yellow colour. He stated that the police after having taking over the revolver went back. 7. Mr. Muhammad Aslam Chishti, for the appellant, Mrs. Ashraf Abbas, Advocate for the State and Mr.Akhtar Zaman Advocate for the complainant have been heard at length. The learned counsel for the appellant contended that:-- (A) Postmortem of the deceased was not conducted and the cause of death of deceased Mst. Kauser Bibi has not been exactly determined. (B) There is no ocular witness of the incident which allegedly took place inside the house and the circumstantial evidence produced by the prosecution does not qualify the test that no inference except the guilt of the accused to be spelt -out, recovery of crime weapon and the empties having been allegedly made pursuant to the alleged disclosure made by the accused and at his instance is doubtful and the evidence produced in such behalf by the prosecution cannot be made subject of implicit reliance, inasmuch as; one of the recovery witnesses P.W. Ghulam Farid was declared hostile, which consequently; render the report of the Ballistic Expert (Exh.P/9-G) as inconsequential. Possibility of tampering with the alleged recovered revolver and empties cannot be excluded in view of delayed dispatch of articles to expert. (C) After a considerable delay revolver and the empties were sent to the Expert and; in this regard no explanation has been offered by the Investigating Officer, casting serious doubt about genuineness of the crime empties. (D) P.W. Sher Muhammad (father of appellant) on demand by the Police Officer/Investigating Officer produced his licensed revolver supported by evidence of D.W.1 makes the case of the prosecution highly doubtful as regards the recovery of the revolver having been allegedly made at the instance of accused and pursuant to his stated disclosure. (E) The attributed dying statement of deceased lady appears to be doubtful and does not withstand the test of its being true and genuine and more particularly for the reason that in view of serious gunshot injuries suffered by the lady and on account of professed bleeding she cannot be found to have the capacity to disclose about the incident. (F) Evidence of P.Ws. Amir Muhammad (husband of deceased lady), Sher Muhammad (father of accused) and Ghulam Farid, Police Constable is Worthless in absence of independent corroboration, which lacks in the instant case. (G) Source of information which consequently led the Police Officer to visit the Casualty Department of the Civil Hospital, Quetta has not been disclosed nor the Police Officer (author of murasila) which formed basis for registration of the F.I.R., was produced by the prosecution. (H) Statement made by the accused during examination of P.Ws. Ghulam Farid and Abid Hussain with regard to the admission of certain facts does not constitute offence of Qatl-i-Amd and secondly; the same stands explained by the accused while under examination by the Court under section 342, Cr.P.C., therefore, the same does not improve the case of the prosecution on such score. (J) Charge against the accused was not established beyond shadow of any reasonable doubt.
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(K) The learned trial Court by misconstruing and misappreciating the evidence of the prosecution wrongly and illegally held the accused to be guilty on the charge. (L) The prosecution evidence being not free from doubts, cannot result into conviction of the accused, who thus; is entitled to be extended the benefit of doubt in his favour. ' Mr. Muhammad Aslam Chishti placed reliance on the reported judgments i,e, PLD 1976 Pesh. 90; 1987 MLD 2638 and PLD 1982 Lah. 577. 8. Mr.Akhtar Zaman contended that:-- (A) The prosecution has successfully proved that the deceased lady succumbed to injuries on account of gunshot injuries suffered by her through medical evidence who was removed to the hospital by P.W. Amir Muhammad immediately after the incident. (B) Through unimpeached testimony of P.W. Abdul Razzaque genuineness and truthfulness of the dying statement of the deceased lady was proved and the same can be safely relied upon for the purpose of recording conviction. (C) There was no on the part of the father of the deceased lady to falsely depose against the accused and to substitute real culprits. (D) Recovery of the revolver and empties pursuant to disclosure made by the accused during the course of investigation and at his instance has been proved beyond doubt and the same was produced from the almirah of a residential room of the house in which the accused was residing with his father and brother, was known only to accused, supported by the positive report of the Ballistic Expert excludes possibility of recovery being doubtful in the given facts and circumstances of the case and one of the 'Mushirs' e.g. Ghulam Farid, Constable though; declared hostile by the learned trial Court does not adversely affect the recovery of the revolver and empties as having been made, as a result of disclosure made by the accused and at his instance in view of independent corroboration…
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