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Petitioner: RASOOL BAKHSH VS Respondent: The STATE
Court Name: Islamabad High Court Judge(s): Mohsin Akhtar Kayani, Shaukat Aziz Siddiqui Title: RASOOL BAKHSH vs The STATE Case No.: Criminal Jail Appeal No, 83 of 2012 and Murder Reference No, 1 of 2013 Date of Judgment:2017-02-14 Reported As: 2017 P Cr. L J 1351 Result: Order accordingly
JUDGMENT
JUDGMENT SHAUKAT AZIZ SIDDIQUI, J.---Through instant judgment, we intend to decide the captioned appeal and reference under section 374, Cr.P.C., surfaced out of the judgment dated 17.12.2012, whereby learned trial court found appellant guilty of offences charged with, and convicted him by awarding capital punishment, in case FIR No,143, dated 21.11.2005, offence under sections 302, 460, 392, 201, 34, P.P.C. registered at P.S Shalimar, Islamabad. 2. Brief facts of the case are that on 21.11.2005 Muhammad Yasin Sub-Inspector (PW-19) recorded the statement (complaint Ex-PG) of complainant Mehrban Khan son of Adil Shah (PW-8) to the effect, that he was resident of Kohat and working in a hotel, at Golra Sharif, Islamabad, his cousin Shahid Khan son of Hazrat Shah (PW-9) came to his place on 21.11.2005 and thereafter, went to the house of Dr. Syed Muhammad Abdullah (deceased) to see complainant's brother Ayub Khan, (deceased) who was servant of Syed Muhammad Abdullah. At about 12:00 p.m., PW-9, telephonically informed complainant, that dead body of his brother Ayub Khan, was lying at House No, 343, St. No,32, Sector F-11/2, Islamabad. On receipt of information, complainant went to above mentioned premises and jumped over the wall of the house and entered there, where he found dead body with cut throat of Ayub Khan, at the basement of house. Thereafter, complainant and PW-9 found the dead body of Dr. Syed Muhammad Abdullah, which was lying near sofa set of drawing room. On receipt of complaint Ex-PG, local police registered case FIR, Ex.PG/2. 3. On completion of investigation, by the I.O. Ch. Abdul Majeed (PW-23), report under section 173, Cr.P.C. was submitted before the learned trial court, by placing (1) Abid Hussain Zardari, (2) Khalid Mahmood, (3) Rasool Bakhsh (appellant) and (4) Imran Inayat as accused persons under Column three (03) of the report. On taking cognizance of the case, learned court proceeded with the trial,
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by framing charge on 31.03.2007 to which, accused pleaded "not guilty" and claimed trial, resultantly, prosecution was called upon to produce evidence in order to discharge the onus. In response, prosecution produced total 26 number of witnesses. It is worth to mention that, Khalid Mehmood and Abid Zardari (accused) absented themselves, during trial and were declared, proclaimed offenders. On conclusion of trial, learned trial court convicted appellant and awarded him death penalty under section 302, P.P.C. on two counts for committing Qatl-iamd of Syed Muhammad Abdullah and Ayub Khan, and also imposed fine of Rs,2,00,000/-. Appellant/accused further directed to pay compensation of Rs,500,000/- in terms of section 544-A, Cr.P.C., to the legal heirs of the deceased. In addition appellant is sentenced to rigorous imprisonment of 10 years with fine of Rs,50,000/- under section 460, P.P.C. and with same quantum under section 392, P.P.C. Vide same judgment, (co-accused), Imran Inayat convicted and sentenced to 04 years' R.I with fine of Rs,50,000/- under section 201, P.P.C., but at the time of pronouncement of judgment, he escaped, therefore, warrant of his arrest for serving out the sentence, sent to SSP, ICT. 4. Learned counsel for appellant submitted that, prosecution could not produce an iota of evidence, to connect appellant with the commission of offence but learned trial court passed the judgment of capital punishment, which is result of non-appreciation of material produced on record; that neither any eye-witness of the occurrence appeared during trial nor any circumstantial evidence is on the file to justify conviction, therefore, impugned judgment is based on conjecture and surmises which is not sustainable in the eve of law. Learned State counsel assisted by learned counsel appearing on behalf of legal heirs of both the deceased controverted the arguments advanced by the learned counsel of appellant by submitting that, findings of guilt recorded by the learned trial court are unexceptional, as learned trial court considered and appraise the evidence in it's true perspective and passed a well reasoned judgment, which does not warrant any interference. 5. Before commenting on the impugned judgment. We find it appropriate to divide the prosecution evidence, under five headings, Occular, Medical, Circumstantial, Recoveries. Motive and Formal witnesses; (i) OCCULAR:- PW-8 Mehrban Shah, stated that on 20.11.2005 his cousin Shahid Khan (PW-9) stayed with him, who at about 12.30/1:00 a.m., midnight telephonically informed him that Ayub Khan and Dr. Syed Abdullah are lying dead in house No,343, St. No,32, Sector F-11/2 Islamabad. He informed the police and was going to police station, Shalimar, police met him on the road, he gave his statement Ex.P- G and signed it. On reaching at spot police prepared some other documents, he along with one other signed the same. He further stated that dead body of Dr. Syed Abdullah Shah, was lying with tied hands and feet, cut throat and mouth fastened in a piece of cloth. He further stated that a chaddar (Ex.PH) was spread underneath the dead body, one .30 bore pistol and two magazines found on sofa set and one student card, took into possession by police vide memo Ex.PH. He signed the same but ignorance about other witness. He is also witness of memos of blood stained cotton, which police picked fro'- .pot side Ex.PJ and EX-PK. He also identified dead bodies in the hospital. PW-9 Shahid deposed that in the year, 2005, he was studying Quranic teaching from Jamia Siddiquia, Adyala Road (Rwp). On 20.11.2005, he went to his 'chachazad' (paternal cousin) Mehrban (PW-8) at his hotel near Golra Sharif and stayed for night, at about 10:30 p.m., he left to see his other 'chachazad' (paternal cousin) Ayub Khan, servant of Dr. Syed Abdullah, who used to live at latter's residence i,e, house No,343, St. No,32, Sector F-11/2, Islamabad. On reaching there, he pushed call bell 2/3 times but no one came out, therefore, he jumped over the wall, and saw the dead body of Ayub Khan with cut throat, smeared in the blood and hands and feet tied with rope at the basement of house. Whereupon he informed his cousin Mehrban (PW-8) and on his arrival both went into the room and saw dead body of Ayub Khan. Thereafter, they went towards drawing room
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of the house where they saw the dead body of Syed Abdullah (deceased) with cut throat and tied hands and feet. He further deposed that .30 bore pistol was lying on the 'sofa', whereupon they informed the police. (ii) MEDICAL:- PW-12:- Dr. Waseem Khawaja, deposed that on 21.11.2005 he was posted as CMO, PIMS, where he conducted postmortem examination on the dead body of Ayub and found the following injuries:- Injury No. 16 c.m cut seen on the front of the neck. Injury No. 22 x 2 c.m sharp edged wound blow right axially Injury No. 34 c.m. below injury No.2, penetrating right lung and right ribs. Injury No. 43 x 3 c.m. wound about right hypochondriac, area over liver. Injury No. 53 x 2 c.m. wound below injury No. 4. Injury No. 64 c.m wound at umbilicus. Intestine protruding out the umbilicus. ON EXAMINATION OF THORAX. The right pleura, larynx and trachea, right lung and blood vessels were ruptured. All other organs were healthy. ABDOMEN:- On examination of abdomen, walls and peritoneum were ruptured. All other organs healthy. In his opinion, deceased died due to sharp edged weapon cutting the trachea and large vessels of the neck leading to excessive bleeding and death. No obvious signs of any poison seen. The time between injury and death was two to three minutes and between death and postmortem was within 48 hours. Postmortem report was got exhibited by the witness as Ex.P-M, pictorial diagrams Ex.P-M/1 and Ex.P-M/2 which were in the handwriting and bore the signatures of the witness. He also signed the injury statement Ex.P-N and inquest report Ex.PP. This witness on the same day conducted the postmortem examination on the dead body of Dr. Syed Abdullah son of Syed Hayat Ullah 63 years of age resident of Islamabad. Body was brought by Muhammad Afzal, S.I Police Station Shalimar, Islamabad and body was identified by Asif. Karim and Fahad Shahab. According to the information furnished by the police, dead body was lying down in the house. On examination, it was the dead body of a well built man of 5.10 inches in length wearing green shirt, black pent, eyes closed, mouth open, black jercy brown belt. Injury No. 1Ligature marks on both hands and both feet. Injury No. 24 c.m cut from of the neck cutting the trachea and blood vessels. Injury No. 3Bleeding from left ear seen. Injury No.4Sub conjunctiva haemoharrges seen. ON EXAMINATION OF THORAX. Larynx and trachea and blood vessels were cut. All other organs were healthy. On examination of abdomen all the organs were found healthy. In the opinion of the doctor, the deceased died due to injury to the trachea and blood vessels leading to shock and death. No obvious signs of poison seen. The time between injury and death 2 to 3 minutes and between death and postmortem within 48 hours. Postmortem report Ex.P-Q and
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pictorial diagrams Ex.PQ/1 and Ex.P-Q/2, were in his handwriting, who also endorsed injury statement which is the request for post mortem Ex.PR and report Ex.PS. During cross-examination the witness stated that he did not mention the time of postmortem examination, in both cases and he could not tell the exact margin in calculated period of injury and death which could be within 02 hours up to 48 hours. (iii) CIRCUMSTANTIAL AND RECOVERIES:- PW-19: Yasin Bhutta, deposed that on 21.11.2005, he received the information and reached house No,343, St.32, F-11/2, Islamabad where Mehrban met him and got recorded his statement Ex.P-G, attested by him, thereafter he sent the complaint for registration of the case, secured blood with cotton from Abdullah Shah, deceased, through recovery memo Ex.P-K, attested by Mehrban Khan and Shafique. The witness further deposed that he sealed blood stained cotton into parcels, took the ropes and telephone wire into possession, through recovery memo Ex.P-20, original CNIC of deceased Ex.P-21, student card of university Ex.P-22, .30 bore pistol Ex.P-23, two magazines with rounds Ex.P-24 and Ex.P-25, statement of bank Ex.P-26, gloves Ex.P-27 and a Chaddar Ex.P-28 through recovery memo Ex.P-H, attested by above named set of witnesses. The PW further deposed that he secured blood from near the dead body of Ayub, through recovery memo Ex.P-J, sealed blood stained cotton into parcel, took the rope Ex.P-29 in his possession through recovery memo Ex.P-BB also attested by Mehrban and Shafique, recorded the statements under section 161, Cr.P.C. of the witnesses and got postmortem examination from Dr. Waseem Khawaja, thereafter prepared inquest report Ex.P-Q and Ex.PP in respect of Ayub deceased. PW-19 further deposed that he prepared the injury statements, took into possession last worn clothes of both the deceased, obtained the record of ABN Amro Bank, got the scaled plan prepared through draftsman, took the pistols into possession along with license and also got verified the identity card of the accused, recovered the laptop, camera Ex.P-34 and 35 through recovery memo Ex.P-DD. PW-2:- Gulzar Ahmed, is Constable No,2806 who was posted at P.S Shalimar, Islamabad on 08.01.2006. He along with Zulfiqar Ali, H.C. (PW-4) during interrogation of accused Abid Hussain Zardari led to recovery of .30 bore pistol P-7 and 2 magazines P8/2, along with 14 live rounds P-9/1, from the room wherefrom the dead body of Dr. Abdullah, deceased was recovered. The articles were lying behind the Sofa Set and the accused named above produced the same before the I.O. who prepared a parcel of the Pistol and took into possession vide recovery memo Ex.PB (attested copy). He further deposed that the same day, i.e 08.01.2006, accused Ghulam Rasool Baksh, present in the Court, during the course of interrogation after making disclosure led to the recovery of Churri P-10, from bushes, situated behind a petrol-pump, F-11 Markaz, Islamabad. The 1.0 prepared a parcel of that churri and took the same into possession, vide recovery memo Ex.PC. The recovery memos were signed by him and Zulfiqar Ali. PW-22:- Mr. Bashir Ahmad Noon, DSP deposed that he became member of investigation team on 19.12.2005 and according to the disclosure of Abid Hussain Zardari, an amount of Rs,15,00,000/- deposited in the bank of Nawab Shah, Sindh, which fell in his share out of Rs,4500,000/-, were recovered therefore, the cheque Ex.P-MM and sample signatures of Abid Hussain Zardari Ex.P-LL were sent for comparison to FIA and Khalid Mahmood since P.O led to his' native village Allahabad for recovery of money and he effected recovery of an amount of Rs,12,88,000/- Ex.P-SS computer along with camera. PW-22, further deposed that Abid Hussain Zardari made disclosure about concealing of pistol of deceased, and Imran Ihayat accused also verified this disclosure, where after he led to his flat where from, pistol of deceased and another pistol were recovered, through recovery memo Ex.P-HH and Imran Inayat also disclosed about the bag of Abid Hussain Zardari, therefore, original identity card Ex.P-57, passport Ex.P-58, cheque book Ex.P-59, were recovered through recovery memo Ex.P-RR and unsealed site plan Ex.P-RR/1. PW-22 further deposed that the
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handwriting report was received positive through recovery memo Ex.P-SS. PW-23 Ch. Abdul Majid, Inspector deposed that in the year, 2005, he was posted as Inspector Investigation Saddar Circle, Islamabad. On 23.11.2005, Syed Shabbir Ahmad PW 5 'bhanja' of Syed Abdullah deceased, disclosed before him that latter maintained account at -Standard Chartered Bank, Candni Chowk, Rawalpindi, whereupon he went there and met Shahzad Saeed and Shazia Saeed employees of the bank, whose statements under section 161, Cr.P.C. were also recorded by him, they informed him that order of the Hon'ble High Court, for handing over the documents relating to the bank account of Syed Abdullah deceased was required, he moved application to get information about the class fellows of Syed Abdullah, deceased, Abid Hussain Zardari accused, Abdul Baqi, Asif Saleem and Abdul Rehman which are Ex.P-13/1 to 5. He took certified copies Ex.P- 13/1 to 5 vide memo Ex.P-T, attested by witnesses. PW-23 also secured a letter from SSP, Islamabad for Deputy Registrar, Hon'ble Lahore High Court, Rawalpindi Bench, and on 28.11.2005, he moved applications to the Manager of Aero Asia, Air Blue and PIA Airlines to obtain the traveling record of Abid Zardari, Abdul Baqi, Asif Saleem and Abdul Rehman. The said applications are Ex.P-V/1 to 3. The Managers of Aero Asia provided travelling list of passengers, which was taken into possession through vide recovery memo Ex.P-U. PW-23, further deposed that the cheque of Rs,4500,000/- No,1942345 was also handed over to him, which he took into possession. The nephew of deceased Abdullah identified the photograph. He further deposed that he arrested Abid Hussain Zardari and recovered different articles from him. He also produced the accused before the learned Illaqa Magistrate and obtained their physical remand and got compared the specimen signatures of Abid Hussain Zardari, with the signatures on the cheque, recorded thestatement of draftsman, interrogated Abid Hussain Zardari, recovered laptop, and computer with camera, took into possession through recovery memo Ex.P-EE. He also apprehended Rasool Bikhsh accused (appellant) and. also recovered Toyota Corolla Car along with other articles from him. He further deposed that "pistols" "khanjar" and "churri" were recovered at the instance of accused and FIR's under section 13/20/65 of Arms Ordinance were registered and they were sent to judicial lock up. PW-5: Shabbir Ahmed is nephew (Bhanja) of Syed Muhammad Abdullah Shah (deceased) who recognized the photograph of Abid Hussain Zardari shown' by police and signed the identification memo of the picture which is Ex.PF and the picture is Ex.PF/1. PW-13:- Ghulam Rasool 2376/C who deposed regarding the copies of admission forms of co- accused Abid Hussain Zardari and others taken into possession through recovery memo. He further deposed that on 28.11.2005, he went to the office of Aero Asia Airlines, and secured the statement of account Ex.P-15, taken into possession through recovery memo Ex.P-U, attested by him and the I.O. He also deposed that on 01.12.2005 he went to Islamabad Airport and obtained the list of passengers Ex.P-16, taken into possession through recovery memo Ex.P-V, signed by him. Accused Rasool Baksh was arrested on the disclosure of co-accused Abid Hussain Zardari. PW-19:- Yasin Bhutta deposed regarding recovery of laptop Ex.P-34 and camera Ex.P-35, through recovery memo Ex.P-DD 24.5.2012. MOTIVE:- In respect of motive, the learned trial court observed that the motive is proved, as accused had hatched a conspiracy for committing dacoity in the house of Syed Abdullah deceased, where they got signed the cheque worth Rs,4500,000/- thereafter they committed qatl-i-amd of Syed Abdullah and his servant Muhammad Ayub. That from the discussed evidence, it is established that the accused Rasool Bakhsh along with co-accused Abid Hussain Zardari and Khalid Mahmood committed lurking house trespass by night into the house of deceased Syed Abdullah with an intention to commit robbery. It is proved by the concrete evidence adduced by the prosecution that after committing the qatl-i-amd they got encashed the cheque from the bank on 21.11.2005 and fled away. From the traveling record of Airlines, it is proved that the present
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accused shared the common intention with his co-accused in the commission of these offences. The amount of Rs,4500,000/- was distributed between these three accused and from the share of his booty, the present accused purchased a car and a motorcycle which was recovered from him." <u>FORMAL WITNESSES: </u> PW-1: Waris Khan, delivered sealed parcels of blood stained cottons, which he delivered in the office of Chemical Examiner, and the last worn clothes of deceased Syed Abdullah were taken into possession through recovery memo Ex.P-A, signed by him. PW-7: Sufi Ullah, identified the dead body of Syed Abdullah, deceased at PIMS. PW-10: Rehmat Khan identified the dead body of his brother Ayub Khan at Complex hospital and PW-11 is Afsar Shah, who received the last worn clothes of deceased Ayub Khan, Ex.P-11 and Ex.P-12 through recovery memo Ex.P-L attested by him. PW-15: Muhammad Abbas, S.I, the then Moharrir, Police Station Shalimar, Islamabad who handed over two sealed parcels of blood stained cotton by Yasin S.I, which he handed over to Waris Khan PW1. PW-16:-Malik Amer Shahzad, draftsman, whose father prepared scaled site plan Ex.P-X and Ex.P- X/1. PW-17:-Muhammad Iqbal, ASI, was posted at P.S Shalimar and chalked out FIR Ex.PY in the offence under section 13/20/65 on the basis of complaint Ex.PY/1 sent by Ch. Abdul Majeed, I.O. 6.Admittedly the brutal occurrence in the instant matter is un-witnessed and entire case of prosecution rests on the circumstantial evidence. After appreciating the prosecution evidence vis- -vis defense version. Learned trial court came to conclusion that chain of circumstances from the dead bodies to the neck of accused appellant was unbroken, therefore, held him guilty. It is imperative to appreciate the quality of prosecution evidence in this regard. 7.Syed Muhammad Shafique, PW-6 informed the I.O. that deceased Dr. Syed Muhammad Abdullah was a student of NUML University in the class of French Language, I.O. took into possession, Student Card of NUML University from the place of occurrence. Abdul Majeed, Inspector/1.0. (PW-23) secured the admission forms of deceased and proclaimed offender, Abid Hussain Zardari and others from NUML University and PW-6 identified the photograph of P.O Abid Hussain Zardari. I.O. also collected the list of passengers who travelled from Islamabad to Karachi, through flight No,40103 of Aero Asia on 21.11.2015. This piece of evidence was collected, after the arrest of Abid Hussain Zardari and his disclosure before Police as a result of which appellant was arrested from Nawab Shah who during the course of investigation led to the recovery of crime weapon i,e, Churri on 08.01.2006. I.O. after seeking permission of Hon'ble Lahore High Court, collected the record of Standard Chartered Bank, Chandani Chowk Branch, including CCTV footage which revealed that on 21.11.2005, P.O Abid Hussain Zardari had encashed, cheque of the amount of Rs,4500,000/- from the account maintained by deceased Syed Muhammad Abdullah at said branch. From the evidence collected by I.O. it transpired that deceased Syed Muhammad Abdullah and P.O Abid Hussain Zardari were close friends and on the fateful night, later, appellant and remaining accused persons took signatures of deceased on the cheque Ex.PWW through show of force and same was got encashed, thereafter P.O Abid Hussain Zardari and appellant left Islamabad in the manner mentioned above. As per prosecution story, Abid Hussain Zardari and appellant went to the house of deceased Syed Muhammad Abdullah, as Abid Hussain Zardari (P.0) was his friend with visiting terms. Thereafter, they over powered the deceased and tied his hand and feet. Then Abid Hussain Zardari (P.0) and appellant went to the basement of house where, deceased servant of Syed Muhammad Abdullah namely Ayub Khan was living, they murdered him there by cutting his throat and then they forcibly obtained signatures of Syed Muhammad Abdullah on the cheque of
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Rs,45,00,000/- and murdered him with the intent illuminate traces/evidence of the occurrence. 8. It is observed that the principal accused Abid Hussain Zardari and Khalid Mehmood absconded during the trial and the learned trial court haphazardly declared them absconders but without undertaking coercive measures to ensure their arrest/presence into face the trial. It is also evident from the record that learned trial court has not initiated the proceedings under section 514, Cr.P.C. against the sureties of the proclaimed offenders. It would have been in the interest of justice that all the accused should have been tried jointly. 9. Perusal of the impugned judgment reveals that statements of the prosecution witnesses repeatedly been reproduced but without discussing the incriminating material to the extent of appellant, it concluded that the chain of the circumstances from the dead bodies to the neck of appellant was unbroken. To some extent, the incriminating material against appellant has surfaced in the statement of PW-2 Gulzar Ahmed, PW-13 Ghulam Rasool, PW-18 Muhammad Riaz, ASI and PW-23 Abdul Majeed, Inspector. In order to satisfy ourselves that whether the findings of the learned trial court are in consonance with the evidence available on the record, we have gone through the same and it is noted that appellant was arrested on the disclosure of the proclaimed offender Abid Hussain Zardari. The said disclosure of the proclaimed offender, cannot be considered in evidence and the only utility of the said disclosure is that it enabled the investigating officers to arrest appellant and to collect the evidence against him. The only incriminating evidence, brought forth by the prosecution against appellant is that, on the day of occurrence he travelled with the principal accused Abid Hussain Zardari on the flight of Aero Asia, from Islamabad to Karachi. In this regard the prosecution has submitted the boarding list of the Aero Asia, wherein the name of appellant is mentioned along with the name of proclaimed offender. 10.It is settled law that in the cases resting on the circumstantial evidence, accused may be convicted and should be convicted if the only conclusion of his guilt is drawn from the available circumstances and there should be no possibility of any other conclusion about the innocence of accused. There is no justification to hold that the only conclusion, even if appellant had travelled to Karachi on the flight of Aero Asia with principal accused Abid Hussain Zardari, would be that he had participated in the occurrence, and there may be the possibility of the conclusion that by coincidence he took the same flight which the principal accused had taken. PW-23 Abdul Majeed, arrested appellant from Nawab Shah and he also recovered a car and a motorcycle from him, with the allegation that appellant had purchased the same from his share of the looted amount. This is a mere allegation, without finding any…
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