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Petitioner: ALI AHMAD and another VS Respondent: THE STATE
Court Name: Federal Shariat Court Judge(s): Abdul Waheed Siddiqui Title: ALI AHMAD and another vs THE STATE Case No.: Criminal Appeal No,98-Q of 1997 Date of Judgment:1998-09-29 Reported As: 1999 MLD 2646 Result: Appeal accepted
JUDGMENT
JUDGMENT ' Appellants have assailed a judgment delivered by the Court of Sessions Judge, Kalat Division at Mastung on 12-11-1997 whereby both of them have been convicted under section 396, Cr.P.C. And have been sentenced to R.I. For 10 years each and also to pay fine of Rs,20,00,00 each. In decault of payment each one of them is to suffer further R.I. For one year. Benfit of section 382-B, Cr.P.C. Has been extended for each one of them. The case against absconding accused Hafiz Yar Muhammad, Zabar Khan and Rehmatullah has been directed to be kept dormant and permanent warrant of arrest has been issued against them. 2. Story of the prosecution, succinctly, is that first informer Hasham Khan (P.W.1) appeared at police station Mastung on 4-3-1995 and reported that his son Akram Khan, the deceased, worked as S.H.O. Police station Kalat in the rank of Sub-Inspector of police. He had come on Eid leaves and on 2-3-1995 he was sleeping alongwith his family in a different room in the night of 3/4 of March. At about 3 a.m. The sleeping members got awakened on the noise of firing from the room of his son. They rushed towards the room, on the door of which room wife of deceased Akram was standing. She informed that while they were sleeping four armed culprits entered the room after breaking the door and two of them fired with Kalashnikovs towards Akram who got wounded at stomach and chest and he was lying unconscious. Akram was immediately removed towards hospital, but died. All the four culprits had muffled faces and none could be identified. The culprits, while leaving, had taken away with them government's revolver 38 bore alongwith live cartridges and the bullet. The suspicion was shown in Hafiz Yar Muhammad in view of the fact that the deceased had arrested that culprit alongwith other accomplices in many cases of decoity. Hafiz Yar Muhammad had become a fugitive of law later on, and used to send threats of murdering the deceased.
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3. Originally 6 persons were challaned out of whom 4 were shown as absconders and two were shown under custody vide Exh.P/12-E. Out of the 4 absconding accused, one appears to have been the present appellant Jameel Ahmed whereas appellant Ali Ahmed was shown in custody. Later on 5 persons who were in custody were charged by the trial Court out of whom two were the present appellants. All of them were charged under Article 17(4) of the Offences Against Property (Enforcement of Hudood) Ordinance 1979, read with section 324/109/34 P.P.C. To which they did not plead guilty. To prove its case the prosecution examined 15 witnesses, whereas the present appellants also examined themselves on oath and appellant Muhammad Jameel examined one witness in his defence whereas appellant Ali Ahmed also examined one witness in his defence. ' Muhammad Hasham (P.W.1), complainant, aged about 60 years has proved that the deceased Muhammad Akram was his son and was working as Sub-Inspector in police and also was working as S.H.O. Of Kalat. In the month of March, 1995 on the second day of Eid, in between 3 and 4 a.m. Of the night they were sleeping in their house. The deceased Muhammad Akram was sleeping in the adjacent room and was sleeping alongwith his children. At about 3 or 4-00 a.m. His another son Aslam Khan who was sleeping on his own room got him awakened and informed him that some noises of firing were coming from the room in which Akram Khan was sleeping. He asked his son as to where was the gun who informed him that the gun was with him but he was not knowing where the cartridges were lying. He informed his son that the cartridges were lying in the trolly nearby. In another room opposite to his room his 3rd son Anwar Khan (P.W.3) was also sleeping with his children. He intimated him with full noise that firing was going on, therefore, do not open the door but the witness replied that his children were being destroyed and therefore, the door was opened. Then he opened the door and heard the noise of the closing of the outer gate as if some one had clashed with it. He ran after the culprit but could not see any body and then returned back. The wife of deceased Akram Khan intimated that there were 4 persons who had broken the door and entered the room and all of them had muffled faces. One of them targeted towards the deceased Akram Khan with fire but he got saved. Then another person fired with kalashnikov and Akram Khan received 5 bullets. Then this witness started removing his son Akram Khan towards hospital, but on the way he died. This witness had deposed further that he was informed by the wife of Akram Khan that out of all the accused persons she could identify one of them in case he is brought before her. This witness has proved F.I.R. Which is Exh.P/A. He has also deposed further that his deceased son was S.H.O. Of P.S. Kalat and he had arrested Hafiz Yar Muhammad and his companions and in that case Hafiz Yar Muhammad and his companions were convicted and sentenced for R.I. For 10 years each and also to fine of Rs,30,000 each. Hafiz Yar Muhammad had absconded from police station and his deceased son Muhammad Akram used to inform him that he used to receive threats of murder from Hafiz Yar Muhammad. He has also clearly mentioned that he cannot identify any of the offenders as he had not seen them. Akbar Khan (P.W.2) aged about 14 years has deposed that deceased Muhammad Akram was his brother and the incident is that of 3-3-1995. He had gone alongwith his brother Asghar for performing the Namaz of Eid and after that while he was returning he came across appellant Ali Ahmad. Ali Ahmad wanted to know as to whether his deceased brother Muhammad Akram was going for his duties towards Kalat or not. He was informed that deceased will not go on his duty. Then appellant, Ali Ahmad gave him Rs,5 as Kharchi. Later on, he went away and on that night his brother was murdered. Anwar Khan (P.W.3) has proved the he is one of the brothers of deceased Muhammad Akram. He had come from Kharan to Mastung three days before Eid as he works as A.S.I. At Kharan. Deceased Akram Khan had come for the celebration of Eid one day before the Eid. On 4-3-1995 upto about 11 in the night all the family members were in the residential room of deceased Akram Khan and then all of them went towards their own rooms to sleep. At about 2-30 a.m. He heard the noise of firing. He stood up and as he opened the door of his room he found four muffled and armed persons coming out of the
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residential room of the deceased. On this, he gave message loudly to all the family members not to come out of their rooms because firing was going on. On this loud noise one of the four armed murdered offenders fired towards him and the bullet crossed the door and touched wall of his residential room. Later on, all the offenders went out of the main gate of the courtyard. He and his father and his younger brother Aslam Khan went after the offenders but due to the darkness the offenders succeeded in absconding. Then they returned and went inside the residential room of deceased Akram Khan and found him in a pool of blood. The offenders had taken away his Government Revolver, belt and some live cartridges of the deceased alongwith them. Wounded was taken to Mastung Hospital where he could not survive. Later on, they brought the dead body of Akram Khan for funeral purposes and enquired from his wife who informed them that at the mid night time the offenders had entered the room after having broken the door with full power. She also informed that during firing has caught hold of a kalashnikov of one of the offenders and that one loudly told another person who was out that a lady has caught hold of his Kalashnikov and she is not leaving him. On this, the person who was out directed him that in case this lady is not leaving their Kalashnikov then kill her. On this direction he made her fall on the ground and went away. She also informed that she can identify one of the accused persons. Abdul Qaidr (P.W.4), Head Constable, is a formal witness and has proved that on 4-3-1995 he went alongwith other police personnel to the place of incident at Killi Tindlan and from there the S.H.O. Had tracked foot prints of the offenders. The foot prints were taken into possession by the S.H.O. Which is exhibit P/4-A and article P/1, P/2 and P/3 are the prints of feet on which he had made his signatures. Juma Khan (P.W.5), has proved that two and half years back he was in his house and heard the noises of firing. He stood up and found that the firing was going on in the house of deceased Muhammad Akram. When he reached at the place of incident he found Muhammad Akram lying in a pool of blood and was trembling. The wounded was not in a position to talking to any body. He was taken to the Hospital where he died. On the next morning at 7-00 a.m. His statement was recorded by S.H.O. Nine Bullets were found from inside the shirt of the deceased and three bullets were found from inside the body of the deceased. The clothes of the deceased were white. He has also proved his signature on Exh.P/5-A which is the memo of the recovery of the blood-stained clothes. He has also proved the recovery of three empties and the memo of recovery Exh.P/1-B which has been signed by him. One kunda and some cotton soaked with blood stains were also taken into possession and was sealed which articles are P/8 and P/9 and he has identified these articles alongwith his signatures. Jamila Bibi (P.W.6), the wife of deceased Akram Khan, has proved that her husband had arrived from his duty in Kalat as S.H.O. One day before Eid. On the night of the incident they were in their room alongwith the children. ' Almost every family member was in their room upto almost mid-night and then every body went into their room for sleep. She also slept in her room. After some time at about mid night four persons entered the room after having broken the door and one of them fired towards her husband Muhammad Akram from which he got saved. Then the remaining three started firing towards him and all of them were armed with Kalashnikoves. She caught hold of one of them and removed his muffle from his face whereas others went outside. The three who had gone outside, but one who was inside and whose Kalashnikov was caught by her, directed him to come out of the house. He told them that the wife of the wounded had caught hold of him. He was directed from outside to kill her and on this that person gave her a hit of a Butt and because of that she fell down and he went out. When other members of the family came to her room the offenders had already disappeared. The person whose muffle was removed by her from his face and who was caught hold by her could be identified by her in case he is brought before her. The witness then made an indication towards appellant Jamil-Ahmad that he was the person whose muffle was removed and she identified him in the open Court. She has deposed further that before the murder,
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whenever her spouse came from duty he used to tell her that he is under threat by Zabar and Hafiz Yar Muhammad. They used to ask him to take the money and leave the offenders and in case he does not leave then he should get prepared to be murdered. So many times she heard some Dastak on the door and when she looked out she found none. Her husband had directed her that the present two appellants must not be left because they had also threatened him and directed that the children should not be left to go out of the house. Dr. Abdullah (P.W.7), has proved that on 4-3-1995 he worked as Medical Officer, Civil Hospital, Mastung. At about 3-00 a.m. Someone called him out of the house and he found that his Compounder Abdul Khaliq was there who told him that in the Hospital S.H.O. Muhammad Akram has died and the dead body has been brought. So the Doctor went towards the Hospital and on his medical observation he found that deceased was already dead and issued such observation Certificate which is Exh.p/7-A. During cross he has admitted that he had not conducted post-mortem because the father of the deceased had applied for not conducting the post-mortem and such written order by the Assistant Commissioner was sent by him. A copy of that letter is already in the record of the Hospital and then the dead body was taken away by his father. Allah Bakhsh (P.W.8) has proved that on 8-10- 1995 he had gone to meet his nephews in the village Killi Tarkha. It was the day time around 12 hours while he was returning after such a meeting he saw appellant Jamil Ahmad in that Killi. He informed the Crime Branch about the presence of this appellant because he was involved into the murder of S.H.O. Akram Khan. Akhtar Muhammad (P.W.9) has deposed that he is a Tailor Master on the Mastung Road. His relatives reside in Quetta whom he usually visits. His and his brother's in- laws reside in Killi Tarkha at Quetta. On 22-10-1995 he had gone to meet in-laws of his brother and he found in that killi the appellant Jamil Ahmad. He found this appellant going inside a house. Then this witness got an idea that in the murder case of. Akram Khan this person is absconder. On that day he could not find time, but on the next day i.e, 23-10-1995 he informed-the Crime Branch about this fact. He has no relationship with deceased Akram but he has also sympathy with the deceased as he was murdered illegally. Naik Muhammad (P.W.10), Constable, has deposed that he was taking the property of the Department of Custom towards Quetta and he was accompanied by one Hawaldar. The property was being taken towards the Court of Agha Wajid. Since on that day Peshi could not take place, therefore, alongwith arms they returned through the bus. In the bus from Parang Abad one Rahmatullah entered the bus and that Rahmatullah told him that he had known that he was there he was going to manage for some lunch etc. On his asking he was informed that the case property of arms belongs to his case in the Court. In fact deceased S.H.O. Akram had caught hold of the arms belonging to Rahmatullah from the Jangal and at the time of arrest this Rahmatullah had told that S.H.O. To take Rs,25,000 and leave him, but the S.H.O. Had informed him that he could not do it. He took this Rahmatullah to the police station and abused him. Rahmatullah had told the deceased S.H.O. That he should not abuse him. However, he can kill him with a bullet. Then this Rahmatullah informed this witness that the deceased Akram received his fire and he showed him the taste of arresting him. Later on, this witness took the arms to the police station and got it collected there. Naseer Ahmad (P.W.11) has deposed that on 11-4-1995 he was working as Tehsildar/Second Class Magistrate at Mastung. S.H.O. Of the Police Station Mastung brought accused Ali Ahmad for judicial confession under section 164 Cr.P.C. Then he recorded the judicial confession and such confession was sealed by him and sent to S.D.M. Mastung and the accused was sent to the judicial custody. He had asked questions under the rules and gave a chance for thinking and pondering to the accused. He has proved Exh.P/11-A which is the judicial confession of appellant Ali Ahmad under section 164 Cr.P.C. He has also proved Exh.P/11 which was signed by him and his Certificate in the end which is Exh.P/11-C. Muhammad Ishaque (P.W.12), Inspector of Police has deposed that on 4-3-1995 he worked as S.H.O./IP of Police Station Mastung. At about 3-15 a.m. Muhammad Hashim, the complaint (P. W.1) gave him written complainant that
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his son Muhammad Akram who was working as S.H.O. At Kalat has been murdered by some unknown offenders. He lodged an F.I.R. Which is Exh.P/1-A and then went at the place of incident and prepared the site plan which is Exh.P/12A. He had also made patwari to prepare the map which has been marked as 'A'. From the place of incident he had taken into his possession one live cartridge, one sikka of Kalashnikov and some empties. He prepared such Fard of recovery which is Exh.P/5B and had been signed by him. He also prepared Fard Mulahaza of the place of incident which is Exh.P/5-C. He took into his possession the clothes worn by the deceased and such a memo of recovery was prepared which is Exh.P/5A. He also got prepared the prints of the feet of the suspected offenders and such fard was prepared by him which Exh.P/5A. He also prepared the report of Marg which is Exh.P/2-B. And its photo copy whereas original is not available on the record. He recorded statements of the witnesses and later on arrested the appellant Ali Ahmad during the investigation. He got his judicial confession recorded. Later one he also arrested one Abdul Rauf and after investigation he was sent to judicial custody. On 7-5-1995 he went towards Khuzdar and then remaining investigation etc. Was handed over to Muhammad Ilyas Inspector of Police. He had received the analysis from the Chemical Examiner, which is Exh.P/12 and Exh.P/12D. He produced challan in the Court which is Exh.P/12E. On this challan he has identified the signatures of Muhammad Ilyas Inspector of Police/S.H.O. Yar Muhammad (P.W.13) has deposed that on 16-12- 1996 he worked at the Headquarter of Tehsil Kalat. Inspector of Crime Branch Iqbal came to him and told him that Naib Tehsildar Nazar Hussain had called him towards his office. He was then direcied that a raid is to be made on the killi of Zabar Khan. So he accompanied Naib Tehsildar and other staff of levies towards killi of Zabar Khan. Then they surrounded the entire village., but they came to know that Zabar Khan was not present there. Then Naib-Tehsildar and Iqbal sent a message to the residents of village that whenever Zabar Khan comes to village it may be informed as he is wanted in the murder case of S.H.O. Muhammad Akram Khan. Syed Abdul Jabbar (P.W.14), the Chemical Expert, has proved that on 14-10-1996 he worked as Chemical Expert at the Forensic Laboratory of Crime Branch Quetta. On that day he received from S.P. Crime Branch three sealed parcels with suspected blood stained articles for Chemical analysis. All the three parcels were checked and were opened. Then chemical analysis of the articles was made. Final report was that all these articles were stained with human blood. His report is Exh.P/12C which has been signed by him. Muhammad Iqbal (P.W.15), Inspector of Police, Crime Branch, Quetta., has deposed that he worked in 1994 as such. On 17-8-1995 case No,7 of 95 under section 17(4) Haraba and 324/109 P.P.C. Was sent to him by Police Station for investigation. Before investigation incomplete challan was already prepared. After further investigation the arrest of absconding accused persons namely, Jamil Ahmad and Hafiz Yar Muhammad was still remaining. He raided many places. On 28-10-1996 he raided the house of Jamil Ahmad in the presence of Magistrate, but could not find him there. Since accused Jamil Ahmad worked as Assistant Lineman in WAPDA, so from his office necessary investigation was carried. But from his office he was found absent. During further investigation two more accused namely, Zabar Khan and Rahmatullah were found to be involved in the case and after obtaining their warrants of arrest necessary raids were carried on their houses, but both of them could not be found at their houses. Challan was prepared by Muhammad Hanif Murree S.H.O. Which is Exh.P/15A and he identified the signatures of S.H.O. Muhammad Hanif Murree. Before Challanging the accused he had recorded the statements of Allah Bakhsh, Akhtar Muhammad, Naib-Tehsildar and Naszar Muhammad. 3. In this statement under section 342, Cr.P.C. Appellant Ali Ahmad has denied all the specific questions and to quesiton No,9 he has replied that none of the witnesses has produced evidence against him. This appellant has also examined himself on oath under seciotn 340(2), Cr.P.C. He has deposed that he worked as Meter Reader in WAPDA since 1984 and he has been involved unnecessarily and illegally in this case. In fact police has involved him in this case under the
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influence of the complainant. He was arrested on 4-7-1995 and he had not given any judicial confession before Tehsildar. He was taken before the Tehsildar by S.H.O. Forcibly and in the presence of S.H.O. He was made to sign some statement under duress. Uptill the time he was in the police custody he was tortured. Tehsildar had obtained his signatures and then it was handed over to the police and after that he was taken to Quetta and was kept in the police station of the Civil Lines and there also they remained torturing him. On 12-5-1995 he was sent to the judicial custody. 4. Appellant Jamil Ahmad has also denied all the specific questions with which he was confronted with under section 342 Cr.P.C. He has also examined himself on oath under section 340(2) Cr.P.C. In that statement on oath he has deposed that he was an employee of WAPDA, but he left that employment in December, 1984 and gave an application to the District Magistrate, Quetta, for a permit to issue a journal and in that journal he worked as Chief Editor. The name of that journal is Sada-e-Imrooz which is issued from Quetta. He has produced the permit for issuance of Sada-e- Imrooz which is Exh.D/1 and his application has been exhibited as Exh.D/2. He has produced his Press Card which is Exh.D/3 and a Certificate of PID, Islamabad, has been produced as Exh.D/4. He also produced original copies of his journal which are exhibited D/5 to D/20. According to him, he is resident of Quetta and his house is at Dr. Bano Road, Quetta. 5. Muhammad Aslam (D.W.1) for Jamil Ahmad has deposed that he belongs to the profession of journalism since five years and he is working as a representative of Daily Eagle Quetta. Before this deposition he had worked in Daily Bolan. He knows Jalil Ahmad since 1985 who issued his journal with regularity. He also found Jamil visiting the Press Club. Appellant Jamil Ahmad is the Chief Editor of Sada-e-Imroz and in the Press Club, Quetta. They usually remained in company with each other. 6. Ghulam Mustafa (D.W.1) for appellant Ali Ahmad has deposed that this appellant was transferred to Jail on 12-4-1995 from the Court of Deputy Commissioner, Quetta. Since this witness worked as Senior Clerk in District Jail, Quetta, therefore, he knew the details. If any person in custody is transferred to the Jail he is kept according to the serial and the serial number allotted to appellant Ali Ahmad was 1071. He has produced record of the jail. A photo copy of which was taken on the record and is Exh.D/21. 7. I have heard the learned Counsel for the appellant and State. The counsel for appellant has contended that this is a case of no evidence; that whatever the evidence is available on the record is creating no nexus of the present appellant with the offence; that no identification parade of appellant Jamil Ahmad was ever carried whereas Mst. Jamila Bibi (P.W.6) has identified the appellant Jamil Ahmad in the Court after elapse of more than two and a half years and is not admissible; that in case Mst. Jamila Bibi had removed mole of one of the culprits from his face and had seen him, she must have described it in her statement under section 161, Cr.P.C. But it is not so and in fact there are dishonest improvements by the lady in the trial Court; that there are material conflicts between the deposition of Investigation Officer and Mst. Jamila; that there is unexplained delay in recording of the confessional statement which is fatal to the story of prbsecution; that half exculpatory and half inclupatory confessional statement is not admissible; that after the confessional statement the deponent appellant was delivered back to the police custody and was not sent to the judicial custody; that so-called confessional statement was obtained under torture and duress; that the confession was repelled on oath under section 340(2) Cr.P.C. And this is fatal to the case of the prosecution; that there should be six empties as per the evidence but such recoveries are not coming forward. The counsel for State has contended that the improvements in the deposition of P.W.6 i.e, Mst. Jamila Bibi and other P.Ws., are to be ignored as these improvements are not fatal to the case of the prosecution; that the confessional statement of appellant Ali Ahmad is inclupatory and after statement he was sent to the judicial custody that deposition of Akbar Khan (P.W.2) is proving the voluntary nature of the judicial confession of
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appellant Ali Ahmad; that in their statement under section 342 Cr.P.C. The appellants have denied the torture for any enmity with the Tehsildar; that Ali…
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