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Petitioner: ALTAF and 2 others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Amanullah Abbasi, Ghous Muhammad Title: ALTAF and 2 others vs THE STATE Case No.: Criminal Appeal No,126 and Criminal Revision No,82 of 1994 Date of Judgment:1996-06-17 Reported As: 1999 MLD 996 Result: Appeal allowed
JUDGMENT
JUDGMENT ' AMANULLAH ABBASI, J.---The appeal has been filed against the judgment of Judge, Special Court for Speedy Trials-I, Karachi dated 17-6-1994, whereby each of the accused/appellant was convicted and awarded death sentence as Tazeer under section 3021(b), P.P.C. Death sentence was awarded to accused Altaf whereas accused Sujawal and Ayoub have been awarded sentence of imprisonment for life. The accused Altaf was also directed to pay compensation of Rs,50,000 to the legal heirs of deceased Shafqat. The facts reading to the present appeal are as under:-- ' It is the case of prosecution that the incident had taken place on 2-5-1993 at 10.30 a.m. And the report was lodged by Sarwar Sultan at 11.40 a.m. At Risala Police Station for offences under sections 302, 307, 34, P.P.C. And 337 Qisas and Diyat Ordinance and section 17(3), Enforcement of Hudood Ordinance Sarwar Sultan stated in his report that on that day i.e, 22-5-1993 they same to the Court of A.D.J.-II(East) at about 9-30 alongwith his two servants Mirza Khan and Jehangir Khan in connection with cancellation of bail of accused o.(1) Altaf No,(2) Babar,(3) Aamer (4) Sujawal. The bail was granted 20-5-1993. At that time Sujawal, Ayoub, Altaf and Rana were present in the Court of A.D.J-II (East), Karachi. Rana was armed with a big pistol. The Complainant Sarwar Sultan has further stated that his son Shafqat Sultan on seeing big pistol in the hand of Rana Asked him to get-up and took complainant to the Chamber of ADJ-II(East). His son told him that these accused persons wanted to kill them. The complainant alongwith his son Shafqat Sultan after entering the Chamber of A.D.J.-II(East) closed the door from inside. The four accused started firing indiscriminately on the Chamber from outside. Some of the bullets hit his son Shafqat Sultan on his ear and penetrated his head because of which Shafqat Sultan Started bleeding from his head and ear. He fell down on the ground. The complainant Servant Mirza Khan and Jehangir were also
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outside . The Chamber near the accused persons and saw that accused No,(1) Sujawal (2) Ayoub, (3) Altaf and (4) Rana fired together on the Chamber of A.D.J.-II(East) from the automatic weapons. His servants tried to catch-hold of the accused with the help of certain other persons but the accused continued firing indiscriminate on account of which a few other persons were also injured. The complainant further stated in the F.I.R. That his son Shafqat Sultan died at the spot. He also stated that he had previous enmity with the accused persons and he had lodged report against them at Jamshed Quarters Police Station and Risala Police Station where the cases are registered against them. These persons had threatened to kill him and his children. His servant Mirza Khan had licenced Revolver with him which the accused persons had snatched from him and have taken away with them. Mirza Khan had also received injuries on his head. The complainant Sarwar Sultan stated in his report that the four persons named by him had killed his son Shafqat Sultan with fire-arms and for snatching his licenced revolver from his servant Mirza Khan. ' On 22-5-1993 Malik Muhammad Nazir was posted as S.H.O. At Police Station Risala. On that day he had gone to K.D.A: Rest House on University Road in his official Mobile which was equipped with Wireless. He came to know through Wireless that a murder was committed in City Court building which was within the jurisdiction of Police Station Risala. He reached City Court building at about 11- 40 a.m. Prior to his arrival at City Court building, D.S.P. Eid Gah informed him that the dead body had already been sent to Civil Hospital Karachi and that the S.H.O. Eid Gah was busy with proceedings under section 174, Cr.P.C. At that time he received the F.I.R. Of this case and inspected the scene of occurrence on the pointation by A.S.I. Wan Zaman it presence of Samad and Ramzan. He secured blood from Wardat and sealed. He had secured two crime empties of bullets. He had also secured lead of two bullets which was imbedded in the wall. He examined P.W Lateef and Bilal Shaikh under section 161, Cr.P.C. He went to his police station where P.Ws Jehangir and Mirza were available. They were examined. On the following day S.H.O. Malik Muhammad Nazir was suspended and he was sent to police lines Subsequently the investigation was transferred and Mr. Arif Siddiqui took over investigation. One of the accused Sujawal was granted bail by Court and the co-accused Ayoub and Altaf had surrendered themselves before D.C. South an they were sent to Jail custody. After completing the formalities Mr. Ayoub Siddiqui got the remand of Ayoub and Altaf and got their custody from Javed authorities on 17-8-1993. Subsequently he submitted challan against the accused before the Court. ' During the trial proceedings charge Exh. 4 was framed against the accused on 6-1-1994 but the accused did not plead guilty and claimed to be tried. Prosecution examined complainant Sarwar Sultan Exh. 5 P.W. Mirza Khan Exh. 6. P.W. Jehangir Khan Exh. 7. Roznamcha Moharrar Ghulam Mustufa Exh. 8. P.W. Zafar Sultan Exh. 9. Medical Officer Jay Ram Das Raja Exh. 10. S.H.O. Muhammad Alam Exh. 11. P.C. Jan Muhammad Exh. 12. P.W. Abdul Samad Exh. 13. S.H.O.M. Nawaz Rangha Exh. 14. Malik Muhammad Nazir, S.H.O. Exh. 15. Inspector Arif Siddiqui Exh. 16. The accused in their statement under section 342, Cr.P.0 denied the allegations of Prosecution and have claimed to be innocent. Accused Sujawal Khan further stated that he was innocent and he had been involved because his sister Shamim was wife of complainant's son Jawed who did not maintain her and their daughter Ani Kiran. Shamim got Khula through Court and there was litigation between his sister and Jawed over custody of their daughter Ani Kiran. Due to this enmity
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he had been involved. He wanted to examine in defence Secretary Karachi Bar Association, Mushtaq Ahmed, Advocate J.S. K.B.A., Salahuddin Khan Gandapur, Advocate, Abdul Azeem, Advocate, Muhammad Sadiq, Advocate and Ghulam Mustufa, Advocate. Accused Muhammad Ayoub also denied allegations of prosecution and stated that on 22-5-1993 he was on duty at Custom House, Karachi where he was posted as P.R.O. And the complainant had falsely involved him because he wanted the custody of grand daughter Ani Kiran. He desired to examine Collector of Customs (Preventive) Karachi with regard to show his presence on 22-5-1993 and he also desired to examine Mr. Mehmoodur Rehman, Chief Law Officer. The accused Altaf in his statement under section 342, Cr.P.C. Has denied allegations of prosecution and has claimed to be innocent. According to him on 22-5-1993 he was in the house of his sister Shahida Malik and he had not come to City Court on that day. He also wanted to examine defence witnesses. ' The learned counsel for appellant Ayoub submits that four accused are named in F.I.R. Three have been convicted and one is absconding. The place of incident is the Chamber of A.D.J.-II, Karachi East New City Building. The statement of complainant is Exh. 5 page 121. P.W. Mirza Khan Exh. 6 page 189. P.W. Jehangir Khan Exh. 7 page 197. They are the main prosecution witnesses. There are two medical officers who have been examine one is Doctor Jay Ram Das Exh. 8 page 215 and Dr. Ghulam Mustufa page 645. The date of incident is 22-5-1993 and the accused surrendered before D.C. South Karachi on 8-8-1993. The motive of the offence is dispute over custody of a girl named Ani Kiran who is grand daughter of complainant. There are three investigating officers, Malik Muhammad Nazeer Exh. 15. He was suspended. Nawaz Rangha, S.H.O. Garden and Arif Siddiqui, Inspector Crime Branch. Defence witnesses have been examined on the point of alibi raised by accused Ayoub. P.W. Falak Sher, Collector of Customs (preventive), has been examined as Exh. 24 page 381 and other witnesses have been examined on point of alibi. The F.I.R. Is at page 155. The report was received at 1-40 hours. P.W. Mirza Khan and P.W. Jehangir Khan are employees of complainant and the learned Judge of trial Court did not believe P.W. Mirza Khan. The learned Advocate for the appellant further submitted that the incident is dated 22-5-1993 whereas challan was submitted on 26-8-1993 which means challan was submitted after three months. ' The learned Advocate for appellants Altaf and Sujwal submits that the medical officer says that he received dead body at 11-00 a.m. And Roznamcha entry is at 11-30. At the time it was not known who had caused the injuries. The injuries were the result of one shot and nowhere it is mentioned by medical officer that P.W. Mirza was injured. Trial Judge disbelieved his evidence. The circumstances belie the presence of complainant and P.W. Zafar Sultan had come with the dead body. The entry in Roznamcha and evidence of medical officer show as to who had come which will also show as to who were present. These witnesses belie presence of complainant and P.Ws. At the time of incident. P.W. Mirza is stated to be injured but the medical officer does not mention his name. Statement of Zafar Sultan was not recorded at Hospital where A.S.I. Was also present. None of these witnesses were present at the time of incident. The two injured mentioned by the medical officer were important witnesses but none of them have been examined and they could have deposed as to who caused the injuries. Even at the time of delivery of dead body none of these witnesses were present. He further submitted that in order to take into account the evidence the relationship of P.Ws. Interse and with deceased has to be examined. The enmity and the nature of enmity has also to be examined. According to F.I.R. Rana Sarwar was armed with big pistol but Rana Sarwar is absconding. Accused Ayoub is an old man serving in Custom as Preventive Officer. The quality of evidence does not inspire confidence. There is allegation of firing by all accused. Role attributed to Ayub is of Lalkara. The F.I.R and statement in Court are conflicted. In statement accused Altaf is mentioned with Kalashnikov. The learned Advocate for the appellant pointed out the contradiction in the evidence. He also submitted that in F.I.R. Part of Lalkara is not assigned to
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Ayoub. He relied on decision reported in 1972 PCr. U page 229. P.W. Mirza claims to have received injury which is belied by evidence on record. He is wholly unreliable. The question is as to from where accused Altaf fired. He is alleged to have fired from outside but empties were found from inside Chamber. This is another circumstance which belies evidence. The statement of P.W. Jehangir in Court was altogether different from his 161 statement. He is unreliable witness. The learned Advocate referred to admission of Malik Muhammad Nazir during cross-examination (page 259) where he is stated that he recorded the statements of injured Bilal Shaikh and Latif in hospital. The learned Advocate for the appellant referred to statement of accused Sujawal Khan on page 311 and submitted that he wanted to examine Secretary and Joint Secretary and some other Advocates named by him to prove his alibi. He relied on decisions reported in 1995 SCMR page 1730 and submitted that one single infirmity and reason is sufficient to create doubt. He also relied on decision reported in 1987 PCr.LJ 2173. He submitted that the accused examining themselves on oath and he referred to statement of Mr. Mushtaq Ahmed on page 601 (Exh. 33) as he stated before Court that accused Sujawal was with them at the time of incident. Reliance was placed on decisions reported in 1995 SCMR page 1372 and 1981 SCMR page 959. ' Mr. Ashiq Raza for State supported the conviction stating that the F.I.R. Was promptly lodged. Names of the accused and witnesses are mentioned. There is ocular evidence, medical evidence and recovery. He submitted that 19 witnesses were examined in defence but none is specific. He placed reliance on decision reported in PLD 1977 SC page 529. Mr. Raja Qureshi, Advocate for the complainant also supported the conviction. At the time of hearing he was absent. ' It is admittedly a day time incident and the place of incident is the Chamber of A.D.J-II Karachi East. The relevant portions of statements of material witnesses are as under:- ' "The complainant Sarwar Sultan Exh. 5 has stated that his son victim of this case had seen accused Ayoub, Altaf, Sujawal and Malik Rana available there. Altaf was having Kalashnikove. Rana was having a big pistol. I had myself seen them with the said arms. My servant Mirza Khan was then having my licence pistol. My son Shafqat Sultan the victim of this case told me that the accused person had reached there to take our lives. My son took me inside the Chamber of Mr. All Nawaz Channa the IInd Additional Sessions Judge, Karachi East. While my son after placing me inside the Chamber was trying to bolt the door of the Chamber from inside, the accused persons fired from outside the Chamber inside where we available. The persons who fired at us were Malik Rana and Altaf." ' In cross-examination he has stated as under:- ' "My servant Mirza Khan was the first to open the door of the Chamber with the help of my servant Jehangir. Voluntarily says that at that time Ayoub was given Lalkara. It is incorrect to suggest that the accused had already left the scene of occurrence when my servant had opened the door." ' P.W Mirza Khan Exh. 6 at page 189 has stated as under:- ' "We had seen Ayoub, Rana, Altaf and Sujawal available there. Ayoub gave Lalkara that Sarwar Sultan and his son Shafqat Sultan should not be spared and be killed. Shafqat Sultan took his father Sarwar Sultan inside the Chamber of the Judge Sahib. We remained near the stair-case at a distance of 5 or 6 feets from the door of the Chamber. The door of Chamber was closed from inside. Only God knows who closed the door from inside. He started firing from a Kalashnikove at the door of the Chamber from outside. Rana continued firing in air with a big pistol. After firing Altaf came towards the main gate. Accused Sujawal gave a blow of iron pipe on may head. I receive bleeding injury on my head. Sujawal snatched the licence pistol of Sarwar which then was with me. I resisted. Ayoub gave me a kick blow. Rana threatened to kill me with his pistol that in case I do not part with the pistol he would kill me. Due to fear I stopped resistance. I pushed the door of the Chamber out of which blood was coming/flowing. I observed on opening the door that Shafqat
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with bleeding injury was lying on ground of Chamber. Sarwar Sultan was weeping that his son was killed. Jehangir the servant of Sarwar Sultan also entered inside the Chamber." ' In cross-examination he has stated as under:- ' "It is incorrect to suggest that Risala Police had not found any injury on my head. It is incorrect to suggest that I had not stated before police regarding causing pipe injury to me by the accused." ' P.W. Jehangir Exh. Page 197 has stated as under:- ' "At some distance from the place where we had parked our vehicle another vehicle of the accused was standing. Accused Ayoub, Altaf, Sujawal and Rana were standing by the side of their vehicle. They brought their vehicle on seeing us dropping from the vehicle near us. Altaf was having Kalashnikove, Rana was having a big pistol. They alighted from their car. Ayoub gave Lalkara to kill both father and son. Shafqat said that Baba these people would kill us today. Shafqat took Sarwar Sultan in his lap and entered inside the Chamber. There was Afra Tafri and firing. I and Mirza reached under the stair-case. Again says near the stair-case to hide ourselves. Altaf had fired from his kalashnikove from outside the door of the Chamber inside. The accused Sujawal who is now present in the dock of this Hon'ble Court had given blow of the pipe at the head of Mirza. Sujawal placed his hand on the pistol of Sarwar Sultan which then was with Mirza and there was Jutham Jutha between them. From behind Rana directed Mirza to part with the pistol otherwise he would be killed." ' In cross-examination he has stated as under:- ' "It is incorrect to suggest that the accused had started firing after Shafqat and his father had already entered inside the Chamber (Voluntarily says that accused Rana had started firing is air due to which there was Baghdar as a result whereof Shafqat had taken his father inside the Chamber where firing from Kalashnikove had taken place from outside). I had stated before police regarding firing by Rana in air. I had stated before Risala Police regarding firing two bullets from Kalashnikove. It is incorrect to suggest that I had not stated so." ' The nature of allegations against the accused are very serious as they are alleged to have fired at persons who were inside the Chamber of a Judge, IInd Additional Sessions Judge Karachi East. The prosecution case is based on evidence of complainant Sarwar Sultan, P.W. Mirza Khan and P.W. Jehangir Khan. The learned Advocate for appellants have pointed out the contradictions and inconsistencies in the statements of these witnesses to show that they were not present at the spot at the time of incident. They have insisted that the incident may have taken place in some other manner because the crime empties were found inside the Chamber but according to P.Ws. The accused fired from outside the Chamber and in that case the empties should have been outside the Chamber. They have also submitted that P.Ws. Had tried to rope in innocent persons namely appellant Ayoub and appellant Sujawal both of whom had examined reliable defence witnesses to show their presence at another place and if defence witnesses are believed then it can show that the witnesses were not truthful and they were unreliable. P.W. Mirza Khan Exh.6 has stated that accused Sujawal gave a blow of iron pipe on his head. This statement of P.W Mirza is not supported by any other evidence as neither the Investigating Officer nor medical officer has stated that P.W. Mirza Khan had any injury on his person. P.W. Mirza Khan has specifically attributed this injury to accused Sujawal. There are three circumstances which clearly show that P.W. Mirza is speaking a deliberate lie. The third Investigating officer Mr. Arif Siddique Exh. 16 in cross-examination had stated that he had seen statement of Mirza and he had not stated before him regarding causing of pipe injury by Sujawal to him. This is first factor which belies statement of P.W. Mirza. The second factor is that the medical officer has also not stated about any injury to P.W. Mirza. The third factor is that accused Sujawal had raised plea of alibi to show that he was not present at the time of incident. He examined Mr. Salahudin Khan Gandapur, Advocate in his defence who has stated as under:-
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' "Since 1983 I am member of K.B.A. I know the accused Sujawal now present in dock of this Court. Because he is also a member of K.B.A. On 22-5-1993 round about 9-45 a.m. I was proceeding from the building of the 1st A.D.J., East toward K.B.A. Building, I observed on reaching near the K.B.A. Building Mr. Mushtaq, Advocate the then J.S. Of K.B.A. Alongwith Mustufa, Advocate, accused Sujawal, Azim and two three other Advocates near the tree. Sujawal had told us that some gundah element were after him. We all decided to report the matter at the police post. Near Malkhana we came in contact with Mr. Sadiq, Advocate. We narrated the facts to Mr. Sadiq. Then we all including Sadiq reached police post. There we observed at the police post Incharge i.e, A.S.I. Irfan and A.S.I. Riaz. Sujawal narrated the facts to Irfan. Riaz, A.S.I. Told that those were his men and he would call them back. In the meantime we heard fire-arm reports from the side of new building housing the Court of IInd Additional Sessions Judge, Karachi East. Then we directly proceeded towards K.B.A office." ' Accused Sujawal had also examined Muhammad Amin Lakhani, Advocate whose statement is Exh. 37. He has stated as under:-- ' "In May 1993 I was president of K.B.A. I see the accused Sujawal now present in the dock of this Hon'ble Court. He then was a member of K.B.A. I know him because he was practising at Karachi. Even today I am president of K.B.A. Mehamoodul Hassan was my General Secretary in May 1993. Mushtaq Advocate was the joint Secretary. General Secretary deals with the correspondence of K.B.A. I am not an eyewitness of the occurrence subject-matter of this case. On 25-5-1993 K.B.A. Held a press conference in respect of the occurrence of the subject matter to this case. I see the photostat of the press conference annexed to Exh. 16/E. It bears my signature. We had distributed the material to the Press. There is mention about the accused Sujawal in this Exh. Also. We had specifically asserted in this Exh. Regarding false implication of Sujawal in this case." Thus, the plea of alibi raised by accused Sujawal is supported by reliable witnesses. Mr. Lakhani Exh. 37 has stated that they had specifically asserted regarding false implication of Sujawal. We accept the plea of alibi raised by accused Sujawal and hold that the prosecution witnesses have attempted to rope in innocent person. Another appellant namely Ayoub has also raised plea of alibi and has examined Mehmoodur Rehman Exh. 27 Chief Law Officer of Customs Department who has stated as under:-- ' "On 20th and 22nd May, 1993 I and Ayoub were both in our respective office. Office hours were 9- 00 to 4-00 p.m. The aforesaid members of the staff were also present in office on those days." ' The other witness Muhammad Akbar Ali Exh. 28 has also said so that Ayoub remained in office on both the days from 9-00 to 4-00 p.m. D.W. Fayyaz Ahmad Exh.29 has made similar statement. Rashid Ahmed Senior Preventive Officer Exh. 30 has also stated that Ayoub remained present from 9-00 to 4-00 p.m. On both the days. These witnesses have been cross-examined but we have reasonable grounds to believe that appellant Ayoub has also been roped in. He is a Government servant and is stated to be present on duty on the relevant date and time. Prosecution witnesses have assigned inconsistent roles to him. It is the statement of complainant in F.I.R. That accused Sujawal Ayoub, Altaf and Rana fired together on the Chamber of A.D.J-II. P.W. Jehangir has stated that Ayoub gave Lalkara to kill both father and son after they got down from the car. There are other inconsistencies in the statements of P.Ws. As regards part assigned to accused Ayoub. These Inconsistencies have been examined with the evidence of witnesses who support plea of alibi raised by appellant Ayoub. We are of the view that appellant Ayoub has been roped in because of enmity which already existed between the parties. Fatal injury is not attributed to appellant Ayoub as main allegation against him is that he raised Lalkara. The evidence of defence witnesses mentioned above shows that appellant Ayoub was not present at the time of incident. We, therefore, accept his appeal and accept his plea of alibi. Now there remains case of
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accused/appellant Altaf. We have not believed the prosecution witnesses because they involved innocent persons who had reliable evidence to show that they were not present at the time of incident. The accused/appellant Altaf in his statement under section 342 has stated that on 22-5- 1993 he was in the house of his sister Shahida Malik, wife of Malik Rana and he had not come to city Court on that day. The statement of Dr. Junaid Sarwar Exh. 38 is as under:- ' "I am running medical complex by the name of Karachi Medical Complex at Malir Hault Karachi. I am residing in Bungalow No,I, Model Colony, Karachi. I am running this hospital for the past about four years. Out of the three accused now present in the dock of this Court I know only accused Altaf. On 21-5-1993 I had applied him drip in my hospital. I had called him in the morning of 22-5-1993. I applied him drip on 22-5-1993 right from 9-00 a.m. To 11-30 a.m. Then I advised Altaf to go home. Thereafter, he did not turn up to me." ' Although in his statement under section 342 the appellant Altaf has not stated that on 22-5-1993 from 9.00 a.m to 11.30 a.m he was on drip but on the contrary he has stated that he was present in the house of his sister. This inconsistency cannot be treated as evidence as the Prosecution case has to stand on its own legs. According to complainant Sarwar Sultan Exh.5 his son had seen accused Ayoub, Altaf, Sujawal and Malik Rana there. Altaf was having Kalashnikove. Rana was having a big pistol and he had himself…
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