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Petitioner: ASFANDYAR WALI VS Respondent: The STATE
Court Name: Peshawar High Court Judge(s): Abdul Ghani Khan Khattak, Syed Usman Ali Shah Title: ASFANDYAR WALI vs The STATE Case No.: Criminal Appeal No. 143 of 1975 Date of Judgment:1977-07-12 Reported As: PLD 1978 Peshawar 38 Result: Appeal allowed
JUDGMENT
JUDGMENT ABDUL GHANI KHAN KHATTAK, J.-These are three separate appeals by Niter Muhammad Khan son of Yar Muhammad Khan of Gul Abad, Asfandyar Wali son of Abdul Wall Khan of Shahi Bagh of Tobsil Charsadda and Ahead Farooq eon of Ghulam Rabbani of Surkh Dheri of District Mardan from the judgment recorded by the learned Judge of Special Court on 31st July 1975, whereby the appellants were convicted and sentenced as follows:- Under sections 3/6 of the Explosive Substances Act sentenced each appellant to R.I. For ten years with a fine of Re. 5,000 or in default to further R.I. For two years. Ahmad Farooq and Asfandyar Wall were also convicted under rule 43 of the Defence of Pakistan Rules and sentenced each to R. 1. For seven years with direction that the sentences awarded to them would run consecutively. This judgment will dispose of all the three appeals. The venue of the occurrence is Assembly Hall of the History Society of Peshawar University where Hayat Muhammad Khan Sherpao, Senior Minister, Government of N.- W.F.P. (as then he was) was to install a cabinet on 8-2-1975 at 3-30 p.m. However, the chief guest arrived at the function a bit late and the proceedings commenced at about 4-GO p.m. With recitation from the Holy Qur'an by Mst. Lai Baha (not produced). The chief guest administered oath to the office-bearers one after the other and Abdul Hamid Khan, President of the Society, addressed the House from the rostrum followed by a speech by Haya6 Muhammad Khan Sherpao to whom thanks were paid by Dr. Munawwar Khan, Chairman of the History Department, In a short speech and requested the chief guest to join them over a cup of tea in the verandah outside the Hall. In the meantime Sardar Muhammad Khan, Joint Secretary of the Society (not produced) demanded donation from the
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chief guest who came to the rostrum to explain why the donation had not been announced 'by him. He had hardly uttered a few words when an explosion interrupted the speech thereby causing grievous injuries to him ending thereafter in his death in C.M.H., Peshawar as a result of the blast. Abdul Hamid Khan, President of the Society, was also severely wounded which ended in his death in C.M.H., Rawalpindi on 12-2-1975. About 16/17 persons in the Hall, including Dr. Munawwar Khan, some of whom appeared as witnesses in the case were also injured as a result of the blast. Faqir Muhammad Khan (P. W. 4), Security Incharge of the Peshawar University, who was present in the Hall during the proceedings reported the incident, vide F.I.R. (Exh. PA) recorded by Said Umar Shah, S.H.O., who started usual investigation and the case was registered at Police Station Tehkal. A special team of investigation consisting of Said Umar Shah S. H. O., Mian Ajmir Shah, S.P., Masood Khan Inspector and others investigated the case and the challan of the case was put in Court against the accused appellants and the following absconding accused: - (1) Amjad A.I son of Hilaluddin, resident of Surkh Dheri. (2) Anwar Badshah son of Muhammad Asghar of Taja. (3) Sher Zaman son of Sher Afzal of Bachal. (4) Shahbaz son of Abdul Hassan of Dagai. (5) Mumtaz son of Hawaldar of Lahor (Swabs Tehsil), District Mardan. (6) Habibullah alias Bullah of Burj Killi Tehsil Charsadda District Peshawar, The charge at the trial against the accused appellants was that they and the absconding accused, in conspiracy with each other and in furtherance of their common intention, were concerned in the offences mentioned above as well as under sections 121, 121-A and 123-A of the Pakistan Penal Code. Of the absconding accused, Amjad A.I and Anwar Bacha are shown the moving figures in committing the offence of explosion while the accused appellants and the other absconding accused have been charged to have aided in facilitating the offence by ascribing to them each the respective role detailed in the evidence. The absconding accused have been declared as proclaimed offenders by the order of 26-5-1975. The prosecution case, as it proceeds, is that Faqir Muhammad Khan aforementioned (P. W. 4) on the request of Karam Elahi (not produced), Lecturer of the History Department of Peshawar University made arrange--ments for the function and had under the direction of the Vice-President informed the proctorial board to be present there. He joined police investigation and witnessed the recovery memos. (Exh. PB to Exh. PH). According to him, there was no dais meant for sitting the guests and only a carpet was spread on the floor in the Hall for the occasion. He was present with the police at the time of search of Room No. 115, i.e., the room of Amjad A.I absconding accused in Hostel No. 2 of the University. Miss Zahida Niazi (P. W. 5). a student of M.A. (Political Science) was present in the function where she had been grievously injured. As post graduate students of the Political Science of the University were also invited to the function, as such Miss Zahida Niazi with her fellow female students of Political Science entered the Hall at about 4-00 p.m. She got a seat in the first row while her class fellow Nasrin Akhtar found seat in the second row and Miss Farzana occupied a seat to her right adjacent to her in the fast row. After a short interval, the chief guest arrived and the proceedings commenced with the recitation from the Holy Qur'an. On the right side of the chief guest was sitting Rab Nawaz and Abdul Hamid, President-elect of the History Society was to his left. The oath-taking ceremony started and meanwhile an employee of the Radio Pakistan placed a tape-recorder on the ground near the rostrum and placed the mike of the tape-recorder on the rostrum. Miss Almas Begum (P. W. 6), as mentioned by Miss Zahida, was also seriously injured whose statement in describing the function is not different from that of Miss Zahida Niazi. Miss Almas was one of the office-bearers, but she preferred to avoid taking oath for her personal reasons. As such
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she was amongst those who were facing the rostrum. Her evidence is that after the formalities of oath-taking were over, Dr. Munawwar Khan, after thanking the chief guest, asked him to join them over a cup of tea and meanwhile Sardar Muhammad Khan, Joint Secretary of the Society, got up and demanded donation as a result of which Mr. Hayat Muhammad Khan Sherpao returned to the rostrum. He had hardly uttered a few words by way of explanation when in the meantime a blast occurred as a result of which she (the witness) got injured. ---I did not hear any one crying from side of the rostrum accusing or calling someone as Chamcha. I did not see any tape-recorder before the blast la that Hall. I did not tell the police that I saw a representative of Radio Pakistan placing a tape-recorder on a table and its mike on the rostrum. I have been confronted with my police statement. It is incorrectly recorded therein that representative of Radio Pakistan came while the oath-ceremony was on and he placed a tape- recorder on a table near the wall. The police officer who examined me in Spencer Hospital, Karachi did ask me if I had seen the representative of Radio Pakistan, placing a tape-recorder on the table in the Hall and its mike on the rostrum but I flatly told him that I had not seen any such thing. I was also elected as class representative of the History Society but since I had not acquired the permission of my parents, I therefore did not go to the stage to take oath, as I had earlier told Mr. Karam Elahi, Lecturer of the History Department who was in charge of that show not to include my name in the list of office-bearers, who were required to be administered oath by the chief guest Mr. Sherpao. The stage was not on a regular basis--- Dr. Munawwar Khan (P. W. 7), Chairman of the History Department, was also seriously injured. His evidence is that on 8-2-19-15, the oath taking ceremony of the office-bearers of the History Department was to commence at 3-30 p.m. In the Political Science Assembly Hall, Peshawar University, where Hayat Muhammad Khan Sherpao was to attend as chief guest. It was about 4-00 P.M. When the chief guest was received by him and he took him upstair to the Hall. The chief guest occupied the chair meant for him (Or. Munawwar Khan). Therefore, he (Dr. Munawwar Khan) occupied the chair to the right of Hayat Muhammad Khan Sherpao while Abdul Hamid Khan. President of the Society, occupied the chair on the other side of Hayat Muhammad Khan Sherpao. Miss Lai Baha recited from the Holy Qur'an arid after the oath-taking ceremony Dr. Munawar Khan thanked the chief guest and asked him to have a cup of tea with them. Meanwhile, Sardar Muhammad Khan, Joint Secretary of the Society, made a request for donation to which Hayat Muhammad Khan Sherpao, in order to give a reply returned to the rostrum and while he started explaining as to why he did not make any such announcement, in the meantime a blast occurred. The witness stated that during the oath-taking ceremony, he had seen a representative of Radio Pakistan placing a tape-recorder on a table near the entrance door. The evidence of all these witnesses on the material aspect of the case is :- (1) That there was no dais in the Hall and only carpet was spread for the occasion (the photograph of the function conforms to this fact) and (2) that the tape-recorder of Radio Pakistan was observed by most of there lying in the Hall. Supporting the above version, Muhammad Usman (P. W. 8), Producer, Radio Pakistan, Peshawar (another injured witness) stated that he was on duty in the Hall for recording the proceedings. He observed a flash a--d that flash was under the level of the table and the rostrum. Sher Hussain (P. W. 9), Photographer of the Information Department, Government of N.-W. F. P., Peshawar, stated that he reached the Hall on the relevant date at 4-15 p.m. And got photographs of the function from different positions depicting the proceedings till the episode of the explosion in which he was slightly injured. He says that ---in photographs (Exh. P. W. 9/1 and Exh. P. W. 9/2) front of late Hayat Muhammad Khan Sherpao on the bottom of the photographs a portion of the back of a chair is visible---. It may here be noted, however, that no chair with its back to the audience is visible in the photographs in question. We have asked the learned Advocate-General (who had
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been acting as Special Prosecutor in the trial Court) if he could point out the back of the chair in the photographs and he agreed with us in our observations of these pictures. In fact, a portion of the seat of a chair facing the audience to the left of the rostrum is visible in the pictures; however, there is no chair with its back to the audience. Subsequently, during the investigation of the case, Sher Hussain photographed the venue of the occurrence (the Hall). During rehearsal on the spot, photograph (Exh. P. W. 9/11) was taken on 24/25-2-75. The photograph (Exh. P. W. 9/11) was prepared in the fashion, as desired, by making back portion of the chair facing the persons standing near the rostrum. The above set of witnesses (hereinafter called witnesses of Category 'A`) have spoken not a word about a tape-recorder allegedly lying in a chain in the Hall, except the one brought by P. W. Muhammad Usman, Producer. Radio Pakistan. The next set of witnesses thereafter called witnesses of Category 'B') are the persons who claim to have been present in the Hall and deposed that tape-recorder was lying in a chair in the Hall. The first witness in this category is Muhammad Shafiq (P. W. 10), a student of M. A. Persian (Final) who, being a proctor, was to attend the function. He stated that he saw a black National Tape-Recorder lying outside the Hall on the parapet wall of the verandah at about 4 p.m. He was greeted by Amjad A.I absconder, who was already standing there and on being inquired of the owner of the tape-recorder, Amjad A.I disowned it. According to this witness, however, within his view Amjad A.I tried to set in motion the tape-recorder but failed in his attempt to stop. Since the witness was familiar with handling such tape-recorder in the Persian Department, therefore, he also tried in vain to set it right. The witness then got busy with other fellow students and moved from that side. However, he saw Amjad A.I absconding accused entering the Hall with the said tape-recorder. The witness claimed that Amjad A.I was known to him and described him as wearing dark green tetron clothes and a short coat. He did not see any friend of Amjad A.I with him standing in the verandah. The witness affrmed (Exh. P. W. 10/1) which is a tape-recorder of the Persian Department adding that it was of the same size, colour and make as the one he had seen with Amjad A.I absconding mused. This witness was examined by the police on 15-7-1975. Syed Farkhanda Jan (P. W. 11), student of M. A. (Economics) stated that as an invitee, he was present in the Hall where he saw Amjad A.I absconding accused, who was already known to him, placing a tape-recorder in a chair near the rostrum and that Amjad A.I was hooted as 'Chamcha' in the Hall who left the Hall meanwhile. The rest of his evidence relates to the description of the proceedings. The statement of Parvez Iqbal (P. W. 12), an injured witness, is a reproduction of what Syed Farkhanda Jan has stated, namely, that a young man (without mentioning his name) entered the Hall and placed a tape---recorder in a chair in-between the main table and the rostrum and then went away. He further stated that he had never seen that boy in the University before. He also deposed that the back of the chair was towards the audience. This witness way also examined by the Police on 1J-2-7S. The evidence of Gul Amir (P. W. 13), a student of M. A. (Previous) History is also to the same effect. He claimed to have occupied a seat in the rear of the Assembly Hall and had seen a chair lying in- between a large table and the rostrum on which a black colour tape-recorder was lying. Abdul Rab (P. W. 14), a student of Final Civil Engineering, stated that he was residing as boarder in the University Hostel No. 1, Room No. 184, and that he knew Anwar Bacha absconding accused as cousin of one Quraish, a class-fellow of the witness. Anwar Bacha is alleged to have come to the Hostel in the absence of the witness and had placed in his room a chaddar of khaki colour and a box (corton) of wads tied with jute string and a chit Exh. P. W. 14/1. Written 1n Pashto to the effect that the articles were to be kept in his room as amanat. The witness further stated that he had penetrated his finger into the cotton which was in the form of a wax with no smell. Shortly
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thereafter, Anwar Bach& came and took the chaddar and the dabba (corton) thanking the witness. He was examined by the police on 6-3-1975. Muhammad Sadiq Ijaz (P. W. 15) stated that he was a Steward of the Teacher Students Centre containing cafeteria and that a register is maintained for the personal accounts of each student and teacher visiting the cafeteria in regard to the articles taken by them on credit basis. According to him, Registers (Exh. P. W. 15/1 to Exh. P. W. 15/3) pertain to the months of December 1974, January 1975, and February 1975, respectively. The entries in respect of Amjad A.I absconding accused, a student of Zoology Department, appear at page 44 of Exh. P. W. 15/1 for the month of December 1974, in Exh. P. W. 15/2 for the month of January 1975, the entries in his name appear at page 471 while in Exh. P. W. 15/3 for the month of February 1975, the entries in his name appear at page 46. 13e further stated that Amjad A.I absconding accused used to visit the cafeteria of the Teacher Student Centre some 15/16 days prior to the occurrence along with a guest of tall stature. Before the trial Court, in photograph (Exh. P. W. 15/4), he recognized that guest of tall stature as the person who had visited Amjad A.I in the cafeteria. Similarly, in photograph (Exh. P. W. 15/4), he recognized Afrasiyab Khattak (marked 'B'), a boy shorter in size than the other named Bilal Shah (marked 'C'). This witness also stated that Exh. P. W. 15/3 (the register for the month of February 1975) is blank after the entries of 9-2-1975. Page 46 of this register shores the endorsement of the Investigating Officer dated 20-2-1975 to the effect that it was recovered and taken into possession the sane on 20-2-1975. Mian Mohibuddin (P. W. 16) posed himself to be the relation of Amjad A.I absconding accused belonging to the same family. He deposed that he had developed mental trouble and was admitted in Mission Hospital, Peshawar, and on the day before the day of occurrence, Amjad A.I and Anwar Bacha absconding accused had come to the hospital to inquire about his health in the morning at 9-30 or 10 a.m. According to this witness, Amjad A.I absconding accused had a camera with him while Anwar Bacha absconding accused was in the possession of a black colour tape- recorder. A photograph was taken by Anwar with the abovesaid camera. According to him, the photograph (Exh. P. W. 16/1) was the game photo which had been taken by Anwar Bacha absconding accused in the Mission Hospital on 7-2-1975. He further stated that Amjad A.I and Anwar Bacha had come to the Hospital in a Cheverolet Car Exh. P. W. 67/A with its Plate No. S. W. T. 244. Amjad All and Anwar Bacha then went away from the Hospital at 12 noon leaving the car under the care of its driver. He went to sleep and after getting up the driver and the car were not found there. According to this witness, his father is a Retired Sub-Inspector of Police who is Chairman of the Peoples Party of village Surkh Dheri and that Ahead Farooq accused appellant is a nephew of Major-General Mian Ghulam Jilani belonging to the National Awami Party. Syed Muhammad Farooq (P. W. 17), student of B. D. S. (Final Class) in Khyber Medical College, Peshawar deposed that he was occupying Room No. 1 in the International Hall, Peshawar University. Akhtar Khan of Pashto Department was residing in the said Hall in Room No. 2 adjacent to his room. On the day of occurrence, be was also invited to the function of installation ceremony of the office- bearers of the History Society. He went there in the company of Muhammad Shafiq, Waheed and Mushtaq at about 3 p.m. There were several students present, including Amjad All and Anwar Bacha absconding accused, with whom he met in the verandah in front of the Hall where the function was being held. His statement was recorded under section 161, Cr. P. C. On 17-2-1975. Shaukat All (P. W. 18), a Clerk of the White House Tailoring, Peshawar Cantt., produced a register (Exh. P. E. 18/1) showing the relevant entry against an order placed by Amjad A.I absconding accused at Serial No. 599 (marked Exh. P. W. 18/1) relating to one combination suit and one two pieces suit. The order in this respect was placed on 26-11-1974. The coats (Exh. P. W. 18/3 and Exh. 18/4) were got identified by him amongst other coats.
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Mir Rahman (P. W. 19), F. C. No. 763, P. S. Charsadda, deposed that he was on patrol duty when at about 1-30 a.m. On 9-2-1975, he saw Amjad All and Anwar Bacha absconding accused moving about in suspicious circumstances at Tangi Chowk of Charsadda Tehsil Bazar. He brought both of them to the Police Station and lodged a report Exh. P. W. 32/D, Illat No. 37 dated 9-2-1975. Amjad A.I absconding accused had a camera (Exh. P. W. 19/1) while Anwar Bacha absconding accused was armed with a big size tamancha. Attaur Rahman (P. W. 20), A. S. I. Prepared the injury sheet of Ajab Shah, a student of M. A. History (Previous) Class and is a marginal witness to the recovery memos. Exh. P. H. And Exh. P. W. 20/A sad of the bottle containing metallic pieces recovered from the body of Rab Nawaz Exh. P. W. 20/3. The articles mentioned in Exh. P. H. Were taken into possession by the S. H. O., Police Station. Tehkal, which were produced before him by Nisar Muhammad son of Sherin of village Sherpao. He is also a marginal witness to the recovery of various other articles which have been duly exhibited. He has shown his presence along with S. I. Syed Umar Shah and Faqir Muhammad (P. Ws.) in the Hall in question at the time when the Inspector-General of Police reached there. He added that he bad found the carpet having a big hole with burning marts, a tape---recorder Exh. P. 4 with no electric wire fixed in the socket, and that the plank of the table Exh. P. 1 was intact, while its parts had been broken. Ziaur Rehman (P. W. 21), a student of Lair College, Peshawar, deposed that on '-2-75 he had, in the company of Afrasiyab Khattak, Naqeeb, Abdus Sattar and Mir Alam, gone to the polytechnic Institute, Peshawar, to attend a function at 10 a.m. He added that he had gone along with them to the said Institute in a jeep. The said jeep had been provided to them by Afrasiyab Khattak and that he (the witness) had driven it. Sardar Khan S. I. (P. W. 22) is a marginal witness to the recovery memos relating to the metallic pieces and burnt pieces of tape-reorder which have been duly exhibited. Faqir Muhammad (P. W. 23) and Muhammad Hussain (P. W. 24) deposed that at about sunset time (according to the former) and Qaza Maghrib time (according to the latter) they were planting poplar planning in their fields situated in the area of village Hindko Daman when two young boys approached them and asked for their chaddars, as they were feeling cold. They further deposed that their coats yore wet and thus they asked them to keep their coats with them and consequently they gave their chaddars in exchange for their coats. The coat (Exh. P. W. 18/3) was worn by a young man taller in stature while the coat (Exh. P. W. 18/4) was worn by a young man of shorter size. It may be mentioned that the aforesaid coats were taken from these witnesses by the Police on 16-2-1975. The photographs of the said two young men were also shown to them in the trial Court and they identified the same. Murad Khan (P. W. 25), Inspector of Police, deposed that during the days of occurrence, he was posted as S. H. O., P. S. Daudzai and that on the information of Muhammad Nisar, a Detective Foot Constable, he was successful in obtaining from P. W. Muhammad Hussain the coat (Exh. P. W. 18/3), ride recovery memo. Exh. P. W. 25/A and from Faqir Muhammad the coat (Exh. P. W. 18/4), vide recovery memo. Exh. P. W. 25/B. Kachkol (P. W. 26) is a witness to the above recovery memos. (Exh. P. W. 25/A and Exh. P. W. 25/B). Muhammad Iqbal (P. W. 27), proprietor of Naz Photo Studio, Sikandarpura, Peshawar City, deposed that he wars summoned to take photograph of the function of polytechnic Institute held on 7-2- 1975, wherein late Hayat Muhammad Khan Sherpao was the chief guest. Muhammad Taufiq Khan (P. W. 28) deposed that during the days of occurrence, he was posted as Assistant Superintendent Jail, Charsadda. According to him, the register (Exh. P. W. 28/1 pertains to the visits of the visitors to the various prisoners in the said Jail. At Serial No. 35 of 11-2-1975, one Rab Nawaz son of Rahmat Gul had visited Misal Shah son of Yaqub Shah as well as Amjad A.I and Anwar Bacha absconding accused. This witness also deposed that on 9-2-1975, Amjad A.I and
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Anwar Bacha absconding accused were admitted in Sub-Jail Charsadda who were brought there for confinement between 10 a.m. And 2 p.m. Qamar Gul (P. W. 29) was working as barber in Charsadda Sub-Jail. He deposed that Misal Shah prisoner (not produced) told him to carry a message of the two absconding accused namely, Amjad All and Anwar Bacha, through a letter in the name of Habibullah Khan alias Bullah Khan of Burj Killi. Faridoon (P. W. 30) deposed that he was an under trial prisoner confined in Charsadda Sub-Jail. He confirmed the statement of P. W. Qamar Gul to the above effect and further stated that Amjad A.I and Anwar Bacha absconding accused were brought to Sub-Jail, Charsadda on 9-2-1975. He saw Misal Shah prisoner along with them talking together. Misal Shah asked them if they knew anybody and they replied that they knew none. Anwar Bacha is, however, alleged to have named Bullah Khan aforesaid as big acquaintance, and on the suggestion of Misal Shah, a letter was written by him in the name of Bullah Khan under the dictation of Anwar Bacha. Najeeb Khan (P. W. 31), Head Warder of Sub-Jail, Charsadda, has deposed that in the Register No. 1. (Exh. P. W. 3i/1) at Serial No. 4767 dated 9-2'-1975, Amjad son of Hilaluddin, resident of Surkh Dheri, Tehsil Swabi, Mardan, is shown as confined in Sub-Jail, Charsadda and at Serial No 7468 dated 9- 2-1975 in that Regist.r,…
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