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Petitioner: GHULAM RASOOL and others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Khawaja Muhammad Sharif, M. Naeem-ullah Khan Sherwani Title: GHULAM RASOOL and others vs THE STATE Case No.: Criminal Appeals Nos.144/J, 145/J and Murder Reference No,630-T. of 2000 Date of Judgment:2002-04-30 Reported As: 2002 YLR 1996 Result: Appeals dismissed
JUDGMENT
JUDGMENT ' KHAWAJA MUHAMMAD SHARIF, J.---this judgment will dispose of Criminal Appeal No,144/J of 2000 filed by Shabbir Hussain and Abdul Rauf, appellants through jail and Criminal Appeal No,145/J, of 2000 tiled by Ghulam Rasool and Abu Bakar, appellants through jail who were Convicted and sentenced by Judge Special Court No,11 (ATA) Gujranwala vide judgment dated 3-7-2000 as under:-- ' Ghlam Rasool and Abu Bakar appellants:-- ' Death (on two counts) and to pay compensation of Rs,50,000 (on two counts) each, in default-R.I. For. One year under section 302/34, P.P.C. For committing the Qatl-i-Arnd of Ashraf Marth and Tabassum Zameer, Life imprisonment (on two counts) with further direction to pay Rs,50,000 as compensation, in default R.I. For one year each under section 120-B/34, P.P.C. 10 years' R.I. And to pay compensation of Rs,50,000 each, in default R.I. For one year under section 324/34, P.P.C. ' Shabbir Hussain and Abdul Rauf, Appellants:- ' Imprisonment for life (on two counts) with further direction to pay Rs,50,000 (on two counts) as compensation, in default R.I. For one year under section 120-B/34, P.P.C. With the benefit of section 382-B, Cr. P .0 . ' Murder Reference No,630/T of 2000 for confirmation of death or otherwise shall also be replied through this single judgment. 2. Occurrence in this case had taken place at 8-20 a.m. On 6-5-1997 at a distance of 1 furlong from Police Station Civil Lines, Gujranwala while the matter was reported by Tariq Javed through written
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complaint Exh. PA at 8-45 a.m. The same day and the formal F.I.R. Exh.PA/1 was recorded by Munir Hussain, Head Constable. 3. Briefly stated that facts of the case are that on 6-5-1997 at 8-20 a.m. Muhammad Ashraf Marth S.S.P. By Jeep which was being driven by Tabbasum Zameer H.C. Started from his house for office while the complainant and his companion Shakeel Ahmad, FC were on the Pillion seat of the Jeep took a turn towards D.C. Road, all of a sudden three unknown persons came there on a motorcycle. Two of them were armed with Kalashnikov. They started firing from the front and right side of the Jeep. Due to this firing Muhammad Ashraf Marth and Tabassum Zameer driver lost their lives while Shakeel, F.C. Received injuries on his legs. ' The motive behind the present occurrence was that Muhammad Ashraf Marth being threatened by Moulana Muhammad Azim Tariq and Riaz Basra for his murder and this incident took place at the instance and abetment of above said Azam Tariq and Riaz Basra. 4. After registration of the formal F.I.R., investigation of the case was taken over by Muhammad Azam, S.I. P.W. 26, Since the injured persons had been shifted to hospital, he reached there, prepared injury statement of Shakeel, F.C. Exh. PDD; also prepared. Injury statement Exh. PN/3 and inquest report Exh.PN/2 ir.'respect of dead body of Muhammad Ashraf Marth, injury statement and inquest report Exh. P0/3 and Exh.PO/2 were prepared with regard to dead body of Tabassum Zameer, the injury statement Exh. PR/2 was also prepared qua the injuries on the person of injured Tariq Javed on the same .Day, i,e, 6-5-1907, the Investigating Officer innected the place of occurrence, took into possession bloodstained earth vide memo. Exh.PD and Exh.PC respectively from the places where Muhammad Ashraf Marth and Tabassum Zameer were injured; broken pieces of glasses, blood-stained were secured from the official vehicle through Exh.PE; 40 crime empties of kalashnikov were secured from the place of occurrence vide memo. Exh. PF; the official Jeep of the late S.S.P. Was taken into possession vide memo. Exh. PH; an empty cement bag P.17 allegedly left by the accused was secured vide memo. Exh PJ; on 7-5-1997 the I.O. Made a query Exh. PEE from the medical officer about the fitness of injured Shakeel for recording his statement and the medical officer vide his opinion opined that he was fit to make the statement; accordingly his statement was recorded under section 161, Cr.P.C. On 27-5-1997, he arrested Abdul Rauf, Qari Shabbir Hussain, Muhammad Umair (PO) and Qari Muhammad Ishaque; obtained their personal remand; on 3-6-1997 Abdul Rauf while in custody led to the recovery of diary. R.32 and pamphlet P.33 which were taken into possession vide memo. Exh.P; on the same day Uzair accused (now PO) got recovered cycle P.27 which was secured vide memo. Exh. PX; similarly, Shabbir Hussain accused led to the recovery of cricket bag P.34 alongwith_ two klashnikovs and live bullets which were taken into custody vide memo. Exh.PW; warrants of arrest of Syed Ghulam Rasool, Shakeel Anwar, Sana Ullah, Abdul Haq and Muhammad Riaz and after completion of the remaining formal investigation on 13-6-1997 submitted incomplete challan. This case was also investigated by Muhammad Farooq, D . S . P . (P .W . 27), Shah Elahi , S . -I . (P. W. 28) Tassadaq Hussain, Inspector (P.W.25). Tassadaq Hussain, Inspector interrogated Ghulam Rasool Shah who told the place from. Where P.W.25 recovered kalashnikov P.29 which was taken into possession vide memo. Exh.PS and got registered a case under the Arms Ordinance against Ghulam Rasool and prepared the challan in the Arms case. 5. At the trial, prosecution in order to prove its case produced 30 witnesses in all and also produced Tariq Mahmood Cheema as C.W. I. The learned S.P.P. Tendered in evidence reports of the Chemical Examiner (Exhs.PFF and PFF/1) reports of the Serologist (Exh.PGG and Exh.PGG/1), ,report of the Forensic Science Laboratory (Exh. PHH) and closed the prosecution case. Thereafter, statements of the accused were recorded under section 342, Cr.P.C..In which they pleaded false implication. However, after conclusion of the trial, the appellants were convicted and sentenced as stated above.
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6. Learned counsel' for appellants namely Ghulam Rasool Shah and Abu Bakar after having read the entire prosecution evidence and other material available on record submits that Ghulam Rasool Shah and Abdu Bakar alias Usman convict appellants were not given the valuable right of cross-examination in a case of capital punishment; none of the appellant was named in the F.I.R. Even the description of the accused was not given in the F.I.R.; Tariq Javed who being gunman was also sitting with the accused duly armed did not use the same; though Shakeel was an injured witness but he was not joined during the identification parade; Tariq Javed P.W. Has not signed any recovery memo; the motorcycle allegedly used by the accused person at the time of commission of offence was a plantation because according to the prosecution the said motorcycle was taken into custody by the Police of Sheikhupura district; the other version of the prosecution was that the motor cycle was lying on the road and the same was secured while the third stance was that the said motorcycle was taken into possession when some accused were intercepted by the Police and they ran away after leaving the motorcycle; the motor cycle was allegedly recovered on 7-5- 1997, that is, the next day of occurrence; no witness to prove the recovery of said motorcycle was produced before the trial Court; 22 witnesses were given up as unnecessary but none of the witness was given up as having been won over; though the occurrence had taken place on 6-5- 1997 while Ghulam Rasool appellant was formally arrested in this case on 2-10-1999, the identification parade took place on 28-1-1998 though application for identification parade was submitted on 2-1-1998 with regard to identification of Abu Bakar, appellant; Ghulam Rasool, appellant was arrested from Faisalabad on 16-7-1997 but his formal arrest was shown ' as 2-101999, P.W.3 and P.W.4 identified Ghulam Rasool, appellant on 1-9-1997; identification parade was held by P.W.15 but the arrest of Abu Bakar was shown as 2-10-1999. Muhammad Azam Tariq was named in the F.I.R. But he was neither arrested` or challaned by the Police; the other accused namely Riaz Basra though was named in the F.I.R. But was not arrested being a PO; the kalashnilcov-in fact was planted on Ghulam Rasool on 2-10-1999 because he never led the Police to the place of recovery as he was in jail at that time; Ghulam Rasool was acquitted in the case under Arms Ordinance by the learned trial Court; no recovery was effected from Abu Bakar appellant when no counsel was representing Ghulam .Rasool and Abu Bakar, appellants; it was incumbent upon the trial Court to have put the questions himself to the P.Ws. And if the convicts had not produced their counsel then the. Trial Court should have provided a counsel at State expense; the main purpose of the Court is to advance the cause of justice but the prosecution has failed to do the same; Muhammad Naveed P.W.17 had made a telephonic call to S.S.P., Gujranwala and gave his wrong name as Riaz and told the deceased S.S.P. That the terrorist were around him: Tariq Mahmood Cheema was examined as C.W.1 to fill up the lacunas in the case of the prosecution; Muhammad Hand P.W.4 the eye-witness is a chance-witness; he had no business to be present at the spot; he seems to be a stock witness of the Police; the identification parade of Abu Bakar was held by Malik Niaz Ahmad, Magistrate (P.W.I3); the investigation of this case smacks of padding; the identification parade is of no consequence because the witnesses of the identification parade did not make a statement before the learned Magistrate about the roles played by the accused persons at the time of occurrence; the accused at the time of identification parade had raised .The objection that their photographs and video films were already prepared; in fact the appellants have been convicted for their demeanour and that in =fact the prosecution has been miserably failed to prove its case against the appellants. 7. Learned counsel for Abdur Rauf and Shabbir convict appellants submits that the evidence of conspiracy is not believable; so far as Sana Ullah and Uzair accused are concerned, Muhammad Shafique (P.W.18) stated that they had pointed towards the jeep of the S.S.P. Asking Ghulam Rasool and Abu Bakar convicts who were on the motorcycle which was being driven by Abu Bakar and Ghulam Rasool was sitting on the pillion seat; there is no evidence on record to connect the
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appellants with the commission of the alleged offence; recovery 'memo. Exh.PAA and Exh.PBB in fact belongs to case F.I.R. No,32 of 1997 registered at Multan and these memos. Were about Abdul Manan accused; occurrence had taken place in that case in Khana-e-Farhang Iran at Multan, according to the site plan, the eye-witnesses could not identify the assailants when they were firing because the said witnesses were ahead from the accused persons who were firing on the jeep, there was no reason to kill the S.S.P. Because there was no motive for the same on the part of the appellants; Tariq Javed P.W.3 could not have identified the assailants at the time of occurrence because the occurrence had taken place with a twinkle of eye; Muhammad Shafique (P.W.18) had not joined the identification parade; he had not identified the accused in the Court and he had never seen Sana Ullah and Uzair at the spot as one of them absconded after being released on bail and the other was killed' in a Police encounter; Muhammad Naveed P.W.17 was a tutored witness; C.W.1 Tariq Mahmood Cheema was called by the trial Court to seek corroboration from him to the statement of Naveed PW: story of conspiracy is not believable that the accused persons would not conspire for the murder of S.S.P. Ashraf Marth in the presence of Naveed PW; alleged conspiracy took place at 7-30 a.m. In the house of Shabbir appellant, the occurrence took place at 8-20 a.m., though Muhammad Azam, Investigating Officer (S.-11S.H.O. (P.W.25) reached at the spot at 8-30 a.m. But neither Ghulam Hussain nor Muhammad Hanif P.Ws. Appeared before him; Muhammad Tariq was medically examined at 8-50 a.m. In the hospital while the Fard Bayan was completed at 8-45 a.m.; according to the learned counsel how a person can be a present at two places; till 11-5- 1997 the assailants of Ashraf Marth and Tabasum Zameer were not known; it is not safe to rely upon the identification parade; the identification parade is a weak type of evidence; the injuries on the person of Tariq are self-suffered; that the prosecution itself gave an application before the trial Court for the Superdari of the jeep and got the same repaired, so the prosecution itself destroyed the evidence, Ghulam .Hassan given up and Muhammad Hanif P.W. Could not have seen or identified the accused persons at the time of firing; Shakeel P.W. Did not state that the accused persons who were on a `which had a cement bag with them from which they had taken out kalashnikov; from the spot 40 crime empties were taken into possession alongwith three mutilated bullets vide memo. Exh. PG; these empties were sent to the Fire Arms Expert on 12-5-1997 while the report of the Fire Arms Expert is dated 7-10-1999 after the recovery of kalashnikov from Ghulam Rasool Shah; ammunition belonging to the Police officials which was recovered from the jeep was not sent to the Fire Arms. Expert: it was incumbent upon the prosecution to have sent the same; the prosecution itself by submitting an application for Superdari moved by the Moharrir to the trial Court got the ammunition from the trial Court; even led bullets recovered from the bodies of the deceased were not sent to the Fire. Arms Expert; according to prosecution case, 4 kalashnikovs were used in the occurrence, two belonging to Police officials and two from accused persons but nothing was recovered from the other accused who was not arrested; Tariq Javed P.W. Had not signed any recovery memo., the site plan with scale was prepared only on the pointation of Muhammad Hanif P.W.; the statement of Muhammad Hanif and Ghulam Hassan P.W. (not produced) under section 161, Cr.P.C. Were ditto, copy of each other; these two witnesses are chance witnesses; there are material contradictions in the statements of Muhammad Hanif and Shakeel P.Ws., Muhammad Hanif P.W. Had identified the motorcycle 2 years and 5 months after the occurrence; in fact he is a stock witness of the Police; though the motor cycle was recovered on the next day of occurrence but was identified 2 years and five months thereafter, the complainant mentioned only about the motorcycle but no details were given by him; Muhammad Hanif P.W. Did not state anything about the motorcycle; the conduct of Tariq Javed complainant at the time of occurrence was most unnatural as he, did not fire a single shot on the assailants of two deceased persons; in fact he should have been charged for misconduct; F.I.R. Was recorded after due deliberation and consultation; though the P.S. Was at a distance of 220 yards but the F.I.R. Was not
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prompt; beside Muhammad Naveed P.W.17 Nazir and Akbar were also the witnesses of conspiracy but were not produced; Naveed P.W. Has not taken the names of Akbar and Nazir in his statement before the trial Court; Naveed alongwith other witnesses was taken to MuI= to join the identification parade of Ghulam Rasool Shah; Naveed P.W.- did not go to the house of deceased S.S.P. Himself to tell him that conspiracy had been hatched against him but he made a telephonic call and did not tell his name as Naveed but Riaz. ' So far as motive is concerned, learned counsel submits that it was furnished orally by Mirza Maqbool Baig, D.S.P. P.W.24, stated that he was posted at Multan while the deceased S.S.P. Was there and that the deceased was supervising the investigation of Khana. Furhang case at Multan but the prosecution has failed to produce any documentary evidence that the deceased S.S.P. Had been receiving threats, the evidence of motive is hearsay, prosecution failed to prove any evidence from Multan regarding motive. ' With regard to investigation, learned counsel submits that the investigation of this ease went on for 2 years and six months, crime empties remained lying with the Forensic Science Laboratory for two years and six months, Tassadaq Hussain, Inspector P.W.25 allegedly recovered the kalashnikov when Ghulam Rasool appellant was in Jail but according to the prosecution he made a disclosure in the Jail before P.W.25 that after the murder he had concealed the kalashnikov which was used in the occurrence and was allegedly recovered from the pointed place separate challan under Arms Ordinance was submitted 'against Ghulam Rasool but he was acquitted; appeal against acquittal in that case was dismissed by this Court, Malik Ishaq (acquitted accused) and Ghulam Rasool convict were arrested by P.W.25, he conducted investigation under Arms Ordinance, submitted the challan on 13-10-1999 and also placed on record report of the Forensic Science Laboratory which is dated 29-10-1999, how he could have placed the report of 29-10-1999 on the record of challan which was submitted on 3-10-1999 and that there is no evidence whatsoever on_ record to connect the appellant with the alleged commission of offence. According to learned counsel the appellants have been falsely involved by the police to show its efficiency. Concluding his submissions learned counsel submits that the prosecution has miserably failed, to prove its case against the appellants and the appellants are entitled to acquittal. ' On the other hand, Miss Yasmeen Sehgal, learned Assistant Advocate-General submits that it is a case of high profile terrorism; in such-like cases nobody comes forward to join the investigation or become. a witness at the risk of his own life; the statement of Naveed P.W. Was recorded on the same day, she has read before us the statement of Naveed P.W. Under section 161 Cr.P.C. At page 386 of the paper book and has also drawn our intention to the statements of P.W.6 and P.W.7; the diary Exh.P.2 recovered on the pointation of Abdul Rauf convict is most important document and links the, chain apart from being an incriminating document; mere acquittal of Ghulam Rasool appellant in the case under Arms Ordinance does not mean that he is not involved in the murder ease of deceased S.S.P., on a Court question the learned A.A.-G. Submits that Sana Ullah who was shown to be a P.O. In the instant case was killed in a police encounter and in that regard a case vide F.I.R. No,221 was registered on 13-4-1999 with Police. Station Factory Area District Sheikhupura; the learned Law Officer has taken us through the site plan Exh.PT/1 and has shown us the various points; according to site plan one of the accused has been shown at point H on the northern side while the other accused have been shown on the southern side of the site plan; the jeep has been shown at point N, the deceased S.S.P. Was sitting at point A while the deceased driver was sitting at point D and other gunman was sitting at point E, both the persons sitting at points A and C later on became deceased namely Muhammad Ashraf Marth S.S.P. And Tabasum Zameer the driver who was driving the jeep, from point F' Muhammad Hand and Ghulam Hassan P. Ws. Have themselves witnessed the occurrence, Shafique P.W. Has been shown at point G, point J is the place where Sana Ullah and Uzair had given a signal to the three accused persons who were on motorcycle,
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learned A.A.-G. Submits that after hearing the noise of firing it was natural that the eye-witnesses would have turned their faces towards the place from where the noise was coming; Ghulam Rasool and Abu Bakar appellants were arrested in Khana-e-Farhang case and in that case identification parade was very essential and recoveries were to be made; the day in holding the identification parade occurred due to their identification parade in Multan case; both these accused were identified in that case, they remained on remand; recoveries were effected and only thereafter the formal arrest of Ghulam Rasool Shah and Abu Bakar was shown in the instant case; the identification parade in the instant case was held on 1-9-1997 and 8-9-1997 while in Multan case, the same was held at Multan by the same learned Magistrate who was examined as PW 15; in such-like cases the identification parade is very difficult; it is always standard objection of the accused that they were shown to the PWs prior to the parade and that in the instant case the identification parade. Was in accordance with Rules and Orders of the High Court, motive has been fully proved through Mirza Maqbool Baig D.S.P. P.W.24; the deceased being S.S.P. Of the District Multan was supervising the investigation of Khana-e-Farahang case and moreover it is not possible that a person who gets threats to his life should create evidence; the conduct of the accused was very evasive before the trial Court; they despite many opportunities did not produce their counsel rather wanted the Court to proceed according to their whims; as to objection of not providing the opportunity of cross-examination of some PWs is concerned, that has no legs to stand as the accused even after direction by this Court did not cross-examine the witnesses; it was a case of honest and fair investigation because had there been any malice or mala fide on the part of the Police, they could have easily attributed shots to Abu Bakar appellant; non challenging of Maulana Muhammad Azam Tariq sufficiently depicts that no innocent persons was involved in the case; so far as Ghulam Rasool and Abu Bakar appellants are concerned, there is direct evidence of the eyewitnesses coupled with the recovery of fire arms and matching of the crime empties with recovered weapons, the presence of Abu Bakar, appellant at the time and place of occurrence has been proved beyond any shadow of doubt and section 34, P.P.C. Is fully applicable and that the prosecution has been successful in proving its case against the appellants to its hilt. Concluding her submissions, learned A.A.-G. Submits that the learned trial Court was right in convicting the appellants and the conviction may be maintained. ' We have heard learned counsel for the parties at great length and have gone through the entire record. Before proceedings with the case, it may be noted that as a whole 6 accused, namely, Malik Muhammad Ishaque (since acquitted), Ghulam Rasool Shah, Abu Bakar alias Usman (both convicts) Ishaque son of Muhammad Amin (since acquitted) Shabbir Hussain and Abdul Rauf (both convicts) were tried by the learned trial Court. Maulana Muhammad Azam Tariq though was named in the' F.I.R. But was never challaned while Riaz Basra was shown as absconder. Similarly, Abdul. Haq, Muhammad Riaz and Sana Ullah were shown as P.Os. While Uzair who was on bail also absconded and was declared as P.O. ' First of all we would deal with the legal objection raised by learned defence counsel that no right of cross-examination was given to Ghulam Rasool Shah and Abu Bakar alias Usman, the convict appellants. In the instant case. The attitude of the accused was that they tried their level best to make hostage of the trial Court. They were adamant in their attitude towards the Court and these facts are proved from the interim orders passed by the learned trial Court on different dates of hearing, the details of which are given as under. On 29-11-1999 the six accused persons who were tried by the learned trial Court refused to get copies of the statements as required by section 265- C, Cr.P.C. Same was the position of the accused on 7-12-1999. Even this position prevailed on 14-12- 1999 and the learned trial Court observed that the accused were doing all this intentionally. The case was then adjourned to 22-12-1999 -12-1999 for framing of the charge. On the said date, the accused persons refused to sign the charge-sheet. Again the case was adjourned to 5-1-2000 on
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which too charge could not be framed because the accused requested for time to engage counsel. This position prevailed on 13-1-2000 and also on 20-1-2000 but the accused did not engage any counsel. .0n the next date of hearing, i,e,, 22-2-2000 the accused persons got the copies as required under section 265-C, Cr.P.C. And the case was adjourned for framing of the charge on 9-2-2000. On that date, the accused persons submitted an application for adjournment on the ground that they wanted to consult with each, other. Accordingly, the trial was postponed to 29-2-2000. Malik Muhammad Ishaq (since acquitted), Ghulam Rasool Shah and Abu Bakar convict appellants did not engage their counsel while Mr. Abdul Hameed Butt, Advocate appeared on behalf of Shabbir Hussain, Abdul Rauf convicts and…
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