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Petitioner: MUHAMMAD SHAHID HANIF VS Respondent: StateHonorable Justice Imam Bux BalochIlyas Khan and M. Farooq Ahmed
2011 Y L R 655
2011 Y L R 655
[Karachi]
Before Gulzar Ahmed and Imam Bux Baloch, JJ
MUHAMMAD SHAHID HANIF and 2 others---Appellants
Versus
THE STATE---Respondent
Special Criminal ATAs Nos. 43, 44 and 26 of 2002, decided on 14th January, 2011.
Penal Code (XLV of 1860)---
----S. 302(a)/34---Anti-Terrorism Act(XXVII of 1997), Ss.6(1)(c), 6(2)(a) & 7(a)---West Pakistan Arms Ordinance (XX of 1965), S.13(d)---Qatl-e-amd, terrorism and possession of arms---Appreciation of evidence---Benefit of doubt---Confessional statements of accused persons were recorded after a delay of more than 10 days and prosecution had failed to explain said inordinate delay in recording the same---Confessional statements were not corroborated by any independent evidence---Confessional statements of accused were recorded after 8 days of the Identification Parade, which appeared to be not voluntary and true and also generated doubt in the prosecution case---Witnesses had not assigned any role to any of accused at the time of identification parade, which had created doubt in the prosecution case---Recoveries as alleged were effected in presence of two persons, but the prosecution had failed to examine the said two persons---Non-examination of the private witnesses also had created serious doubt in the prosecution case---Recoveries, in circumstances were doubtful---Two prosecution witnesses were chance witnesses and no person from the locality was examined by the prosecution, while they were available---Complainant had not given the names of two prosecution witnesses in his statement under S.154, Cr. P. C. ---Evidence of said witnesses could not be taken into consideration, in circumstances---Evidence on record did not satisfy accepted requirements of safe administration of criminal justice---Accused, in circum stances, were entitled to benefit of doubt--Impugned judgment of court below was set aside, accused were acquitted of the charge and were released, in circumstances.
Muhammad Bashir alias Pervaiz and another v. The State 2005 PCr.LJ 1135; Syed Azeem Shah v. The State PLD 1987 Quetta 96; Khalid Javed v. The State 2003 SCMR 1419; Mehboob Ahmed v. The State 1995 SCMR 127; Lal Pasand v. The State 1971 SCMR 569; Khadim fIussain v. The State 1985 SCMR 721; Muhammad Irshad v. The State 1992 PCr.LJ 756; Muhammad Gul and others v. The State 1991 SCMR 942; Shaukat Saeed v. The State PLD 1978 Quetta 1; Syed Sharifuddin Prizada v. Sohbat Khan and 3 others PLD 1972 SC 363; Zafar Hayat v. The State 1995 SCMR 896; Noor Muhammad and 3 others v. The State 1973 PCr.LJ 891; Mumtaz Khan v. The State 1984 PCr.LJ 407; Lal Singh v. Crown ILR 51 Lah. 396 and Sher Zaman alias Shero v. The State 1983 PCr.LJ 2519 ref.
Ilyas Khan and M. Farooq Ahmed for Appellants.
Abdul Rehman Kolachi, A.P.-G. for the State.
Dates of hearing: 2nd, 10th, 15th, 22nd November and 7th and 8th December, 2010.
JUDGMENT
IMAM BUX BALOCH, J.---By this judgment we propose to dispose of Spl. Anti-Terrorism Appeal No.43 of 2002 filed by appellants Muhammad Shahid Hanif, Muhammad Talha Hussain and Haider Ali against the judgment dated 15-4-2002 of Anti-Terrorism Court No.III at Karachi, Criminal Reference No.4 of 2002 for confirmation of death sentence of appellant Muhammad Talha, Spl. Anti-Terrorism Appeal No.44 of 2002 filed by appellant Haider Ali against Judgment dated 15-4-2002, whereby, he has been awarded sentence to suffer 7 years' R.I and a fine of Rs.50,000 and Special Anti-Terrorism Appeal No.26 of 2002 filed by the State for enhancement of the sentence of accused Muhammad Shahid Hanif and Haider Ali. Through Special Cr. ATA No.43 of 2002, the appellants Muhammad Shahid Hanif, Muhammad Talha Hussain and Haider Ali have been convicted as under:
(i) Convict the accused Muhammad Talha Hussain alias Noman son of. Ishrat Hussain under section 302(a)/34, P.P.C. read with sections 6(1)(c), 6(2)(a) and section 7(a) of A.T.A 1997 and sentenced him to death sentence. He shall be hanged by neck till his death. The sentence of death shall not be executed unless confirmed by the Hon'ble High Court in view of section 374 Cr.P.C. An amount of Rs.175,000 is also imposed on him being Diyat which should be paid to the legal heirs of the deceased.
(ii) Convict the accused Muhammad Shahid Hanif son of Muhammad Hanif, and accused Haider Ali son of Sabir Hussain under section 302(a)/34, P.P.C. read with sections 6(1)(c), 6(2)(a) and section 7(a) of A.T.A 1997 and sentenced them to suffer life imprisonment. An amount of Rs.175,000 is also imposed on each of them being Diyat, which should be paid to the legal heirs of the deceased.
(iii) Convict accused Haider Ali son of Sabir Hussain under section 13-D of Arms Ordinance 1965 and sentence him to suffer 7 years' R.I and a fine of Rs.50,000. In case of default in payment of fine, he shall suffer further R.I for one year. He shall be entitled to the benefit of section 382-B., Cr.P.C. The remaining accused have also been convicted under section 13-D of Arms Ordinance, 1965 in Special Case No.205 of 2001 as such double punishment could not be awarded to them for a single offence as such there is no need to convict them in the present case under section 13-D of Arms Ordinance 1965.
2. The prosecution case in brief is that Dr. Ishrat Hussain was brother of the complainant, who was running his private clinic in the name of De Silva Clinic at De Silva Town, North Nazimabad, Karachi. On 8-7-2001, Dr. Ishrat Hussain (brother of the complainant) had proceeded his clinic as usual in his Car bearing Registration No.C-9010 and when he reached near House No.B-52, Block-P, North Nazimabad, he was intercepted by 3 unknown persons, who were riding on motorcycle, killed him by inflicting firearm injuries. On 8-7-2001 the complainant received information on telephone that his brother Dr. Ishrat Hussain has been killed by some unknown persons by inflicting firearm injuries. As such he reached at the spot where he was informed that his brother has been removed to Abbasi Shaheed Hospital. He immediately went to Abbasi Shaheed Hospital where he found that his brother was dead. The accused were arrested on 29-9-2001.
3. During trial, prosecution has examined Ejaz Rasheed as P.W.1 at Exh.No.20, he produced Mashirnama of place of Wardat and Recovery at Exh.21, Rough Sketch of place of Wardat as Exh.22, Riaz Ahmed as P.W.2 at Exh.23. He produced Mashirnama of Inspection of Dead Body at Ex.24, Inquest Report at Exh.25, Complainant Yousaf Hussain as P.W.3 at Exh.27. He produced statement under section 164, Cr.P.C. at Exh.28, Dr. Syed Sajid Ali as P.W.4 at Exh.29. He produced Post Mortem Report of deceased Dr. Ishrat Hussain at Exh.30, Police Letter at Exh.31, Zulfiqar Ali P.W.5 at Exh.32. He has produced F.I.R. in Crime No.105 of 2001 of Police Station Shahrah-e-Noor Jehan at Exh.33, Javaid Akhter, Judicial Magistrate as P.W.6 at Exh.34. He produced Letter along with photocopy of NIC of Saeed Ahmed Khan at Exh.35, two memos of Identification Parade at Exhs.36 and 37, Saeed Ahmed Khan as P.W.7 at Exh.38, Kashif Rizvi as P.W.8 at Exh.39, Inspector Muhammad Aamir as P.W.9 at Exh.40. He produced Mashirnama of Arrest and Recovery at Exh.41, F.I.R. in Crime No.86 of 2001 of Police Station ATW/CID, Karachi at Exh.42, photocopy of F.I.R. No.85 of 2001 of P.S ATW/CID at Exh.43, photocopy of F.I.R. in Crime No.83 of 2001 of P.S ATW/CID at Exh.44, photocopy of Entry at Exh.45, Inspector Saeed Rind P. W.10 at Exh.46. He produced Blastic Expert Report at Exh.47, Judicial Magistrate S.M. Naqi as P.W.11 at Exh.48. He produced attested photocopy of the Police Letter at Exh.49, Judicial Confession of Haider Ali at Exh.50, photocopy of Judicial Confession of Muhammad Shahid Hanif at Exh.51, photocopy of Judicial Confession of Muhammad Talha at Exh.52, Remand Letter and order of accused Hadier passed by the Judicial Magistrate-V, Karachi West at Exh.53, photocopy of Remand and Order of accused Mufti Muhammad Shahid Hanif at Exh.54, photocopy of Police Letter and Order passed by Judicial Magistrate for remand of accused Muhammad Talha at Exh.55, photocopy of Letter of Judicial Magistrate remanding accused Haider Ali to the jail custody at Exh.56, Inspector Ejazuddin as P.W.12 at Exh.57. He produced Mashirnama of Arrest of accused at Exh.58, Mashirnama of Pointation of place of Wardat by accused at Exh.59, Chemical Report at Exh.60, another Blastic Report at Exh.61, Carbon copy of Roznamacha of Police Station ATW CID, Karachi at Exh.62, copy of Roznamcha Entry of Police Station Shahrah-e-Noor Jehan at Exh.63. After completing the prosecution evidence, its was closed through statement at Exh.64.
4. Statements of appellants were recorded under section 342, Cr.P.C. Appellant Haider Ali examined Rehan Wasi as D.W. 1 at Exh.68, Adnan as D. W-2 at Exh.69, Defence closed its side vide statement dated 4-4-2002 at Exh.70. After hearing the parties the impugned judgment was passed.
5. We have heard Mr. Ilyas Khan, learned counsel for the appellants and Mr. Abdul Rehman Kolachi, learned A.P.-G and have perused the available record.
6. Mr. Muhammad Ilyas Khan, learned counsel for the appellants mainly contended that the prosecution case is doubtful as there is no eye-witness of the incident. The alleged two eye-witnesses P.Ws. Saeed Ahmed Khan and Kashif Rizvi are chance witnesses and set-up by the police. None from the locality was cited as witness. Identification of the appellant through P.Ws. Saeed Ahmed Khan and Kashif Rizvi loses its value as during Identification Parade no role was assigned by the witnesses against the appellants. He further argued that confessional statements of the appellants are not voluntary and not recorded under the provisions of sections 164 and 364, Cr.P.C. and no independent corroboration is sought by the prosecution to base conviction of the appellants on the retracted judicial confession. The confessional statements have been recorded in other crimes and photocopies have been produced which is a secondary evidence and could not be relied upon in like a case where capital punishment has been awarded against the appellants. Learned counsel further argued that according to the prosecution P.Ws. Saeed Ahmed Khan and Kashif Rizvi were present at the place of Wardat and police has also reached at the place of incident within 15/20 minutes of the occurrence but their statements were not recorded at the spot instead of their statements were recorded at 11-30 p.m. Learned counsel further argued that so many people gathered at the place of Wardat but none could made witness out of them. The names of P.Ws. Saeed Ahmed Khan and Kashif Rizvi, who posed themselves as eye-witnesses, their names have not been mentioned in the F.I.R. by the complainant. He further argued that the police has not informed the complainant about the presence of P.Ws. Saeed Ahmed Khan and Kashif Rizvi. Learned counsel further argued that the Rough Sketch of place of Wardat prepared by the police is silent about the presence of witnesses at the time of incident and there is a bakery near the place of Wardat by name and style of Shakeel Bakers but the Investigating Officer has not shown Shakeel Bakers in the Rough Sketch. Learned counsel further argued that according to the prosecution case, one person, who was sitting on the motorcycle was empty-handed but during investigation police foisted a Kalashinkov upon appellant Muhammad Shahid Hanif. The prosecution has failed to establish the motive against the appellants and once the motive is set up by the prosecution in case of failure thereof' adverse inference can be drawn and prosecution has to suffer. In the last learned counsel argued that the prosecution has miserably failed to establish its case beyond reasonable shadow of doubt against the appellants and the defence has succeeded to create doubt in the prosecution case, even a slighted doubt is extended in favour of the appellants/accused. Learned counsel has relied upon the following case-laws:-
(i) Muhammad Bashir alias Pervaiz and another v. The State (2005 PCr.LJ 1135)
(ii) Syed Azeem Shah v. The State (PLD 1987 Quetta 96).
(iii) Khalid Javed v. The State (2003 SCMR 1419)
(iv) Mehboob Ahmed v. The State (1995 SCMR 127)
(v) Lal Pasand v. The State (1971 SCMR 569)
(vi) (vii) Khadim Hussain v. The State (1985 SCMR 721)
7. Conversely, Mr. Abdul Rehman Kolachi, learned Assistant Prosecutor-General Sindh argued that Saeed Ahmed Khan and Kashif Rizvi are natural eye-witnesses of the incident. They could not be termed as chance witnesses as they were present at the time of incident. He further argued that the witnesses have identified the appellant in an Identification Parade held before the Magistrate. He further argued that during investigation, the appellants have voluntarily confessed their guilt and their judicial confessional statements were recorded after observing all the legal formalities. The weapons have been recovered from the possession of the appellants. He further argued that confessional statements of the appellants have been corroborated by independent evidence produced in shape of recovery of weapons and identification parade. Learned Prosecutor further argued that the sentence awarded to the appellants Mufti Muhammad Shahid and Haider Ali may be enhanced and penalty of death sentence may be awarded to them. Learned Additional Prosecutor General has relied upon Muhammad Irshad v. The State (1992 PCr.LJ.756) and Muhammad Gul and others v. The State (1991 SCMR 942).
8. With the assistance of the learned counsel for the parties, we have scanned the entire evidence. P.W.1. Ejaz Rasheed is Mashir of place of Wardat and recovery of empty cartridge and magazine and two bullets. He stated in his evidence that on firearm shots, he came out from his house and found that the incident took place 5/7 houses ahead from his house and the people were collected around a Blue Datsun Car No.120-Y and found that its driver was lying in the said car and blood was collecting on the seat of the car. After 15 minutes police reached at the place of incident. Other people were also available. The police removed the dead body of the victim. At about 10-30 p.m. he was called by police where Inspector Ejaz Inspected the place of incident as well as the Car. The police also secured two empty cartridges near the Car and one empty cartridge was also secured from the left side of the Car. A magazine lying near the Car with two alive bullets was also secured by the police. Such memo was prepared and his signatures were obtained. In cross-examination he stated that his statement was also recorded at Police Station on the same night at 11-00 p.m. He has returned to his home at 1-00 a.m. in the same night. He admitted that no identification marks were put on magazine or alive cartridges by the police at the time of these recoveries.
9. P.W.2 Riaz Ahmed, who is brother-in-law of deceased Dr. Ishrat Hussain. He has produced Mashirnama of Inspection of Dead Body. He stated that in his presence Investigating Officer examined the Dead Body. P.W.3 Yousaf Hussain is brother of deceased Dr. Ishrat Hussain. His statement under section 154, Cr.P.C. was recorded at Abbasi Shaheed Hospital. He stated that he received telephone message that his brother Dr. Ishrat Hussain has been killed and dead body is lying in Abbasi Shaheed Hospital. On such information he firstly reached at the place of incident and then went to Abbasi Shaheed Hospital, where his statement was recorded. In cross-examination he stated that he belonged to Sunni Sect of Islam and his brother was also of Sunni Sect. He admitted that he reached at place of Wardat. He further stated that the police party was present at the place of Wardat.
10. P.W.4 Dr. Syed Sajid Ali, who has conducted postmortem of dead body of Dr. Ishrat Hussain, who received following injuries:
(i) Fire-arm wound entry 0.5 cm in diameter margins are inverted. No blackening and singering are seen. On lateral aspect of right side of chest, with corresponding wound of exit 0.75 cm in diameter margins are averted from mid chest.
(ii) Fire-arm wound of Entry 0.5 cm. in diameter margins are inverted on lateral aspect of right shoulder no blackening and singering seen with corresponding wound of exit 0.75 cm in diameter, margins are averted from front of right " shoulder.
(iii) Fire-arm wound of Entry 0.5 cm. in diameter margins are inverted, no blackening and singering are seen on right upper arm with corresponding wound of exit 0.75 cm in diameter margins are averted from left side lower lateral chest.
(iv) Fire-arm wound of Entry 0.5 cm. in diameter margins are inverted, no blackening and singering are seen over right upper arm with corresponding wound of exit 0.75 in diameter from right axilla.
(v) Fire-arm wound of Entry 0.5 cm. in diameter margins are inverted, no blackening and singering are seen, on anterior aspect of left forearm. Middle 1/3rd with corresponding wound of exit 0.75 cm in diameter from lower 1/3rd anterior aspect of left forearm.
(vi) Clinical fracture of right humerus seen Clinical fracture of left radius and ulna is seen.
This witness has stated in cross-examination that no charring was noted by him on the injuries mentioned in Colomn-13.
11. P.W.5 S.I.P. Zulfiqar Ali Arain has incorporated statement of complainant under section 154 Cr.P.C. produced by S.I.P. Muhammad Azam. P.W.6. Javaid Akhtar, Judicial Magistrate, stated that on 1-10-2001, he was posted as Judicial Magistrate IV, Karachi Central. On the same day S.H.O. Police Station Sharah-e-Noor Jehan submitted an application for holding Identification Parade of accused and he has allowed the said application and fixed the time for holding the Identification Parade on 2-10-2001. On 2-10-2001 at 1-00 p.m. accused Mufti Muhammad Shahid Hanif, Muhammad. Talha and Haider Ali were produced before him with muffled faces, he made them sit behind chamber and arranged 12 dummies and removed handcuffs of the appellants and got their muffles removed. He further stated that P.Ws. Saeed Ahmed Khan and Kashif Rizvi have identified the accused. In cross-examination this P.W. admitted that he has not prepared the list of dummies and their particulars and both P.Ws. have not stated the specific role of each accused during the commission of the crime. He admitted that in the Corridor, the identification parade was held, official of the prosecution branch used to sit there. P.W. Saeed Ahmed Khan, who is said to be eye-witness of the incident, has stated that on 8-7-2001 at about 7-00 p.m he along with P.W. Kashif Rizvi were going to De Silva Town to a hotel, for purchasing fried meat. He further stated that they were on motorcycle when they reached at main road towards P Block De Silva Town, North Nazimabad. He saw a blue colour car while crossing his motorcycle and speed of the car was slow down due to speed breaker. A boy was standing on left side of foot path near the speed breaker, who fired two shots on the occupant of the Car when the car stopped, the said boy then crossed them and came towards right side of the car and then fired 4 shots on the driver of the car. He further stated that a person was standing just prior to speed breaker and was armed with pistoland on the left side of the speed breaker a person with beard was trying to start a motorcycle but motorcycle could not be started by him, the boy pushed the motorcycle and all decamped from the scene of the offence. After the incident he along with Kashif Rizvi went near said Car and so many other people of locality gathered there. Muhallah people identified victim as Doctor Ishrat Hussain running Clinic in De Silva Town. After 15 minutes police reached at the place of Wardat. He and Kashif informed the police about the incident. The police after noting their particulars asked them to attend the police station at 11-30 p.m. on the same night. After 4/3 days police called them at Police Station and shown them photographs of the culprits. On 1-10-2001 he received notice, for identification parade, which would be held on 2-10-2001. Kashif also informed him about the notice received to him. On the next day he along with Kashif reached at City Court and they informed the Reader of the Court about their arrival and Magistrate asked them to sit to the adjoining court. At 1-15 p.m. he was called by the Magistrate where 12/13 persons were standing in a row and Magistrate asked him to identify the accused where he identified one accused having beard at the time of incident, who was driver of the Motorcycle. After the identification, his name was disclosed to him as Mufti Muhammad Shahid. Simultaneously he had identified Muhammad Talha and Haider Ali. He further stated that Kashif also identified the accused in identification Parade. In cross-examination he admitted that he has not stated about the role of the accused before the Judicial Magistrate when he had identified the accused/appellants. He further admitted that some dummies were different and some were same at the time of identification parade. He denied that prior to the identification parade, the accused were shown to him.
12. P.W.8 Kashif Rizvi has stated the same facts as stated by P.W. Saeed Ahmed Khan. In his cross-examination, this witness has stated that he has not noted the registration number of the Motorcycle at the time of incident and he has got education up to matriculation. He admitted. that the place of incident is surrounded by houses and bungalows. He also admitted at some distance from place of incident some boys were playing cricket in the same Gall where the incident took place. He further admitted that dummies were entirely different. On first and second occasions of Identification Test and on third occasion some new dummies and some previous were mixed-up along with the accused. He admitted that he had not assigned the specific role of the appellants before the Magistrate at the time of identification parade. He denied the suggestion that prior the identification parade, the accused were shown to him.
13. P.W.9 Inspector Muhammad Aamir Arain has deposed that on 29-9-2001 he was posted as S.I.P. CID ATW Branch Napier Road Branch. At about 11-30 p.m. or 12-00 midnight he received spy information that some religious activists had assembled at Rehman Market, Nazimabad, on such information he proceeded to the pointed place. He picked up two mashirs of the locality namely Nazeer Gul and Muhammad Akram near from Qudsia Mosque situated on the back side of Rehman Market and informed the mashirs about his target. He further stated that they encircled the culprits and arrested them who on enquiry disclosed their names as Mufti Muhammad Shahid Hanif, who was armed with Kilashinkov loaded with .30 alive bullets, Khalil Ahmed armed with T.T. Pistol loaded with 6 alive bullets, Muhammad Talha armed with T.T. Pistol loaded with 5 alive bullets and Haider Ali armed with T.T. Pistol loaded with 5 alive bullets as the accused had no licence for the weapons, hence he registered separate F.I.Rs. under section 7(1)(c) Surrender of Illicit Arms Ordinance, 1991.
14. P. W.10 Saeed Ahmed Rind stated that on 28-9-2001 he accompanied S.I.P. Aamir for arrest of religious Activists. He has deposed same facts as deposed by Inspector Muhammad Aamir Arain. He has further stated that he has conducted investigation of 13-D cases registered against the appellants and got the appellants interrogated. He further stated that he got the judicial confessional statements of the appellants recorded on 10-10-2001 before the Judicial Magistrate and produced them on 11-10-2001 before the Superintendent Central Prison on the order of Judicial Magistrate. In cross-examination he admitted that after 29-9-2001 he has not submitted in his application before the Magistrate for recording confessional statements of accused till 10-10-2001. He denied the suggestion that after arrest of the accused, he, S.I.P. Aamir and DSP Farooq Awan were promoted and they were awarded prizes by the Government.
15. P.W-11 Judicial Magistrate S.M. Naqi stated that on 10-10-2001 he was posted as Judicial Magistrate-V, Karachi West. On the same day he was directed by Registrar High Court of Sindh through Sessions Judge West to record the confessional statements of accused persons arrested by ATW Police Station. After receiving the letter from S.H.O. ATW Inspector Qamar-uz-Zaman, such order was passed by him and accused were produced in handcuffs and sent them in the kitchen of his Court and deputed his Court peon to watch the accused. He further stated that he informed the accused that their confessional statements would be recorded one by one and asked that they are not bound to record their confessional statements and if they volunteer for the said purpose then the confessional statements would be used as evidence against them. He further stated that he has…
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