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Petitioner: MUHAMMAD ISMAIL VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Raja Fayyaz Ahmed, Fazal-ur-Rahman Title: MUHAMMAD ISMAIL vs THE STATE Case No.: Criminal Appeal No,155 of 1999 Date of Judgment:2000-07-17 Reported As: 2001 YLR 3323 Result: Appeal accepted
JUDGMENT
JUDGMENT ' RAJA FAYYAZ AHMED, C.J.--This appeal under section 410, Cr.P.C. Has been directed against judgment, dated 30-6-1999 passed by the learned Additional Sessions Judge-V, Quetta in Sessions Case No,33 of 1998 whereby the appellant has been found guilty for the offence under section 302(b), P.P.C. And sentenced to death penalty. Murder Reference No,5 of 1995 has also been made to this Court for confirmation of death sentence awarded to the appellant vide abovementioned judgment, accordingly; we intend to dispose of the appeal and the murder reference by this common judgment. 2. The brief facts of the case are that pursuant to Fard-e-Bayan of P.W.1 'Haji Khudai Nazar (Exh.P/1- A) Case Crime No,1 of 1998 was registered with Police Station Pashtoon Abad, District Quetta on 5-1- 1998 at 11-30 p.m. Wherein Haji Khudai Nazar has alleged that on the aforementioned date the family members and children of his relative namely Ahmed Shah Khilji had come to their house and at about 9-30 p.m. His son namely Ahmed Shah alias Gulai took the children of his said relative to their house at Tareen Road and; after about half an hour son of Ahmed Khan Khilji namely Mehmood informed to him in his house that his son after leaving the children to their house left back for his home who after some time returned to their house (Mehmood's house) and told to them in injured condition that he (Ahmed Shah alias Gulai) was injured at the crossing of Kachra and Tareen Road by 3/4 unknown persons by means of Revolver or Pistol firing and have run away from the spot. It has been further disclosed in the Fard-e-Bayan by Haji Khudai Nazar that Mehmood also told to him that his father has removed Ahmed Shah Khilji for treatment to the Civil Hospital. So P.W. Khudai Nazar statedly rushed to the hospital on receipt of the information given to
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him by Mehmood and found his son Ahmed Shah alias Gulai lying unconscious having suffered a bullet wound on left side of his ribs. ' P.W. Khan Gul S.-I./Police Station Pashtoonabad conducted investigation in the case, who inspected the place of Wardat, prepared memos. And recorded statements of P.Ws. Under section 161, Cr.P.C. And also conducted the identification parade of the accused and in his presence statement of injured produced as Exh.P7-A was statedly recorded, subsequently; investigation of the case was entrusted to S.-I./S.H.O. Of the same police station who prepared challan produced by P.W. Khan Gul as Exh.P/8-B. The learned Sessions Judge, Quetta on submission of challan and papers of the case, sent the same to file of the learned Additional Sessions Judge-V, Quetta. The learned trial Court indicted the appellant for the commission of the abovementioned offence under section 302/34, P.P.C. On 5-5-1998 to which he pleaded not guilty and the prosecution to substantiate the accusation produced eight witnesses namely Haji Khudai Nazar (P.W.1), Bor Muhammad, Police Constable (P.W.2), Mangal (P.W.3), Muhammad Aslam E. A .0 . -VIII/M .F.0 . (P.W.4), Dr.Muhammad Murad Marri, Medico-legal Officer, Sandeman Provincial Hospital, Quetta (P.W.5), Mir Hussain (P.W.6), Muhammad Umar (P.W.7) and Khan Gul S.I.P./Investigating Officer (P.W.8). After close of the prosecution case the accused was examined by the learned trial Court under section 342, Cr.P.C. In the light of the incriminating pieces of prosecution evidence who denied the same in toto. The accused did not opt to record his statement on oath within the purview of section 340(2), Cr.P.C. Nor produced any defence evidence. After close of the parties' case, the learned trial Court vide judgment impugned herein convicted and sentenced the appllant as herein abovementioned. 3. Substance of the prosecution evidence is given hereinbelow:-- ' Haji Khudai Nazar son of Haji Muhammad Din Caste Achakzai (P.W.1) ' He is the father of deceased Ahmed Shah Gulai. According to him on 1-5-1998 the family members of Ahmed Shah Khilji had come to their house and at 9-30 p.m. His son deceased Ahmed Shah took the family members of Ahmed Shah Khilji to their house and after half an hour son of Ahmed Shah Khilji namely Mehmood came to him and informed that Ahmed Shah alias Gulai returned back to their house in injured condition and told to them that 3/4 persons attacked on him. According to P.W. Khudai Naiar, he was also informed by Mehmood that they had removed his injured son to the hospital and that his son was injured by means of firing. The witness added that he alongwith Mehmood went to the hospital and found that his son had received a bullet wound below his left ribs and thereafter police came there and recorded his statement which he produced as Exh.P/1-A bearing his signature. The witness further deposed that for two days his son remained hospitalized and on 7-1-1998 in his presence the police recorded statement of his son and at that time according to the witness Haji Abdul Razzak, Haji Abdul Jalil and Muhammad Umar were also present. P.W. Khudai Nazar further stated that his son disclosed in the statement recorded by the police that out of four one of them spoke in Pashto that " I, i,e, Gulai turn your face' and when he turned his face he identified Ismail who had fired on him and a bullet hit him while the remaining bullets did not hit him. According to the witness, his deceased son in his statement further stated that he had identified Ismail son of Juma Khan as the culprit. The witness added that his deceased son made the statement three hours before his death and he died at 1-00 a.m. On night between 7th and 8th. ' Bor Muhammad son of Mandai Police Constable (P.W.2) ' According to him on 5-1-1998 he reached the place of Wardat being the crossing of Tareen and Kachra Road and in the street at the brink of drain three empties of pistol were found lying and the same were secured by A.S.-I. Khan Gul vide memo. Prepared by the Police Officer and sealed into a parcel. The witness produced the memo. As Exh.P/2-A and identified the parcel prepared in his presence which he produced as Article-I containing three empties which he produced as articles.
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The witness further stated that on 10-1-1998 he was present in the office of S.H.O. And Haji Khudai Nazar produced a pair of bloodstained clothes to A.S.-I. Khan Gul by stating that the same belonged to his son Ahmed Shah Gulai accordingly; the blood-stained clothes were taken into possession by the A.S.-I. And sealed into a parcel prepared in his presence. He produced the memo. Of clothes as Exh.P/2-A and the parcel which contained the blood-stained shirt and Shalwar produced by the witness as articles. ' Maneol son of Nazar Muhammad R/o Chaman (P.W.3) ' He deposed that on 5th day of Ramzan he alongwith Mir Hassan (P.W.6) reached Quetta from Chaman and they both left to the house of a friend of Mir Hassan from Taro Chowk and heard fire reports. According to the witness at about 10/10-15 p.m., he added that in front of them there was a firing and they saw 2/3 persons standing in front of them who went into a narrow lane and accused present in Court remained at spot who had a pistol in his hand and they proceeded ahead and the accused also entered into the aforesaid lane. The witness further stated that the injured went towards Tareen Road and; they stayed for a night in the house of and in the morning, when they left the house, people told to them that in the evening at 10/10:15 p.m. On the same place a person was fired upon and; according to the witness, thereafter they went to the hospital and he told to the father of the injured that at the time of occurrence they were present at the place of Wardat and in the evening the father of the injured, according to the witness took them to the police station and they made statement whereafter they left for Chaman. This witness stated that after 7/8 days they again went to the police station at about 12-00 noon/1-00 p.m. And sat outside and in the meantime a Magistrate came to the police station and he was asked whether he can identify the accused from amongst the 8/9 persons standing in a queue to which he answered in affirmative. The witness stated that he identified the accused and also by pointing out towards the accused in Court identified him. According. To the witness for the second time he again identified the accused and similarly.Also for the third time he identified the accused in identification parade. ' Muhammad Aslam son of Muhammad Yusuf E.A.C.-VIII/M.F.C., Quetta (P.W.4) ' According to him on 14-1-1998 on the written request of the Investigating Officer of Police Station Pashtoonabad under his supervision identification parade of accused Muhammad Ismail was carried out in the Police Station Pashtoonabad. He stated that eight persons having similar features as that of accused Muhammad Ismail were arranged for carrying out the identification parade and the witness Mangol was kept outside the police station and before identification parade accused was allowed to stand in the queue of eight persons, wherever he liked and after that, witness Mangol was called on to identify 'accused who identified, the accused Muhammad Ismail from amongst the persons standing in the queue and twice again the process was repeated. According to the witness, thrice the witness identified accused Muhammad Ismail whereafter identification memo. Was prepared which he produced as Exh.P/4-A bearing his signature. He also identified the accused in Court. ' Dr. Muhammad Murad Marri, Police Surgeon, Sandeman (Provincial Hospital, Quetta (P.W.5) ' According to the Medical Officer on 5-11998 at about 10-55 p.m. S.H.O. Muhammad Arif of Police Station Gawalmandi brought Ahmed Shah alias Gul son of Haji Khudai Nazar to the Casualty Department of the hospital with the history of gunshot wound. He examined the injured and found the following injuries on his person:-- "Lacerated wound (entrance wound) oval in shape size 2 c.m. x 1 c.m. Cavity deep on lateral part of right side of abdomen. Tattooing on inner margins. No exit found. Patient referred to Surgical Unit-II after X-rays of abdomen from Casualty Department. Patient was admitted in M.S.U.-II on 5-1-1998 as case of gunshot abdomen. Operation = ' Laproctmy (repair of liver laceration + Nephrectomy right side. ' Surgeon = Dr.Abdul Qayyum, Associate Prof. (Assisted-Dr.Shafiq + Dr.Iqbal +
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Dr.Lal anasthesit Dr.Sajan + Dr.Shah Muhammad. ' Ward Notes: According to expiry note: on 8-1-1998 his condition became serious. Doctor on duty provided life saving treatment but patient expired at 1-05 a.m. On 8-1-1998. ' Cause of death: Probable cause is injury to abdominal viscera caused by fire-arm. ' Mir Hassan son of Nazar Muhammad R/o Chaman (P.W.6) ' He deposed that on 5th of Ramzan, also being the 5th of the month, murder was committed and at 5-15 p.m. He left for Quetta from Chaman and reached Quetta at 7/7-30 p.m. Alongwith Mangol. He further stated that they were coming from old Adda and after crossing of Taro Chowk at 10/10- 15 p.m. They came towards Tareen Chowk where he saw 3/4 persons who allegedly made firing out of whom according to the witness, he identified one person and the remaining persons went into the narrow lane. He added that he had identified the person who made firing and he is the accused, present in Court. P.W. Mir Hassan further stated that the bullet fired by accused, hit the deceased who tried to stand on and fell down. The witness explained in his examination-in-chief that there was a shop with an electric bulb on, and also there was a street-light in which he identified the accused. ' Muhammad Umar son of Sadar Din R/o Chaman (P.W.7) ' According to him he visited the patient in the hospital when police reached there and Ahmed Shah made statement to the police that murderous assault was made on him by Muhammad Ismail son of Juma Khan of Pashtoonabad with a pistol, The witness added that such statement was made in his presence and also he affixed his thumb-impression on a paper which he isclentified and produced the same as Exh.PM-A. Dying declaration of the accused .Exh.P/7-A recorded in vernacular (Urdu) is reproduced hereinbelow:-- {{URDU TEXT}} ' Khan Gul son of. Hail. Mir Gul S . I . P: /Investigating Officer (P.W . 8) ' On 5-1-1998 he was appointed as Investigating Officer in the case and according to him during investigation lie prepared sketch map of Wardat and inventories and also recorded statement of P. Ws. And arranged for the identification parade of the accused. The witness stated that on 7-1-1998 statement of the injured was recorded and on 30-1-1998 under the orders of the police department, investigation of the case was entrusted to S.-I./S.H.O. He further deposed that challan was prepared by the S.H.O. He produced the sketch of Wardat and the memos. Prepared by him respectively as Exh.P/8-A, Exh.P/2-A and Exh.P/2-B. He also produced dying declaration of the accused recorded in his presence, bearing his signature as Exh.P/7-A and the challan as Exh P/8-B . 4. After close of the prosecution case the appellant was examined by the learned trial Court under section 342, Cr.P.C. Wherein he denied the case of the prosecution in into in the light of incriminating pieces of evidence. The accused did not opt to record his statement on oath within the purview of section 340(2), Cr.P.C. The learned trial Court after close of the parties case vide impugned judgment awarded death penalty to the appellant under section 302(b), P.P.C. And also forwarded reference for confirmation of death sentence, to this Court. 5. We have heard the learned counsel for the appellant and Mr.Ghulam Mustafa Mengal, the learned Assistant Advocate-General besides Mr. Muhammad Aslam Chishti who appeared for the complainant (father of the deceased). Mr. Akhtar Zaman contended that:-- (a) The ocular cited witness i,e, P.W. Mangol does not appear to be a natural witness of the alleged incident who also made material improvements in his evidence, besides his version coupled with his stated conduct cannot be believed who also appear to be an interested witness hence no reliance can be placed on his evidence. Also it was contended by the learned counsel that statement of this witness was recorded after one day under section 161, Cr.P.C. And no explanation in such behalf was furnished by the witness and even by the Investigating Officer. The learned counsel strenuously argued that in the given facts and circumstances of the case it abundantly
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apparent that he is a planted witness and the other cited ocular witness P.W. Mir Hassan has been disbelieved by the trial Court hence the prosecution case hinges on the remaining evidence. (b) For the abovementioned reasons the evidence of P.W. Mangol who alleged to have identified the accused in the identification parade needs be scrutinised with great care and caution, and; the identification parade is worthless for the reasons that no description of the features of the accused was earlier mentioned by P.W. Mangol in his statement recorded under section 161, Cr.P.C. And all the P.Ws. i,e, Mangol, Muhammad Aslam E.A.C.-VIII and the Investigating Officer contradict to each other on material particulars in respect of the conduct of the identification parade, and; even if to be believed that P.W. Mangol .Identified accused in the identification parade yet; for want of necessary description about the context in which the accused was allegedly identified by the witness, identification parade becomes inconsequential and the rule including the purpose for which an identification is held was completely frustrated due to the manner in which the same was statedly conducted. (c) No implicit reliance on the attributed dying declaration of the deceased statedly recorded on 7-1-1998 can be placed in the circumstances of the case and the entire facts relevant in the matter sufficiently indicate that the same cannot be believed rather; appears to have been fakely prepared/subsequently introduced in order to cover-up the lapses in the prosecution evidence, inasmuch as; Exh.P/2-B, was not initially filed and was subsequently managed and produced by the complainant's counsel through miscellaneous application and even the author of the alleged dying declaration was not produced by the prosecution in evidence. According to Mr. Akhtar Zaman in the overall facts and circumstances of the case the attributed 'Dying Declaration' of the deceased appears to be highly improbable and unconvincing in view of evidence of the prosecution witnesses on the point who made substantial improvements besides is contradictory on material particulars. P.W. Muhammad Umar also appears to be as an interested witness whose presence at the relevant time is also doubtful and thirdly; in view of the peculiar facts and circumstances of the case it was obligatory for the prosecution to have had produced medical evidence that at the relevant time deceased was in his senses and was capable to make statement. (d) The prosecution has failed to establish the charge against the accused beyond shadow of any reasonable doubt but the learned trial Court on wrong appraisal of evidence and by omitting to consider material aspects of the prosecution evidence improperly and illegally convicted the appellant, although; was entitled to earn acquittal. Mr. Akhtar Zaman in support of his contentions placed reliance on the reported judgments i,e, 1993 SCM R 585; 1992 SCMR 2008; 1987 PSC 717; 1997 SCM R 449; 1978 SCM R 38; 1995 SCMR 550; 1996 PCr.L.J. 130; 1999 SCM R 1138 and 1999 SCM R 52. The learned counsel in view of his contentions and arguments submitted that the murder reference is liable to be rejected and the appellant be acquitted of the charge. 6. Mr.Ghulam Mustafa Mengal, learned Assistant Advocate-General argued that the prosecution successfully established the charge against the accused through ocular witness believed by the learned trial Court; supported by the identification parade, dying declaration, medical evidence and recovery of empties from the place of Wardat and on all material particulars, evidence of P.Ws. Is consistent and credible. According to the learned Assistant A.-G. Presence of P.W. Mangol and P.W. Muhammad Umar respectively at the place of Wardat and at the time of making of the statement of deceased in hospital is quite natural and the evidence of P.W. Muhammad Umar cannot be brushed aside lightly because of his being related to the deceased. 7. Mr.Muhammad Aslam Chishti, contended that the evidence of P.W. Mangol does not suffer from any material inconsistency and is supported by the recovery of empties from the place of Wardat, medical evidence, dying declaration which if to be believed also discloses about the motive of crime besides securing of blood-stained shirt of deceased containing bullet hole further lends
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support to the prosecution case. According to Mr. Muhammad Aslam Chishti, P.W. Mangol also identified the accused during the identification parade which could not be dislodged by the defence hence the learned trial Court appropriately believed this piece of evidence as well. The learned counsel argued that the deceased only a few hours after making statement expired in the hospital and there was no reason for him to substitute an innocent person for the real culprit and mere relationship of P.W. Muhammad Umar would not be enough per se to discard his evidence. The learned counsel strenuously argued that P.W. Mangol was not even the relative of the deceased and his presence at the place of Wardat with P.W. Mir Hassan was quite natural and identification of the accused by the said witness stands substantially corroborated and proved even independently by P.W. Muhammad Aslam, Magistrate 1st Class who is not related to either of the parties and is an independent and impartial person. The learned counsel further argued that a particular conduct of a person in the given situation, varies from person to person and, therefore, P.W. Mangol cannot be treated or termed to be a planted witness, whose evidence also does not suffer from any material contradiction or omission. The 'evidence of the prosecution, according to the learned counsel has been appraised in its true perspective by the learned trial Court. To supplement his contentions that the prosecution evidence does not suffer from any material contradiction or omission, he cited reported judgment in the case of State v. Zulfiqar Ali Bhutto reported in PLD 1978 Lah. 532. 8. We have considered the contentions of the parties learned counsel and the learned Assistant A.- G. In the light of the record of the case which has been gone through carefully including the impugned judgment and have also re-appraised the entire evidence independently as well. The case-law cited by the learned counsel for the parties has also been gone through and considered. The case of the prosecution comprises of:-- (i) Circumstantial evidence i,e, medical evidence, recovery of empties, site plan and identification parade. (ii) Ocular account. (iii) Dying declaration. ' F.I.R. Was registered pursuant to the Fard-eBayan Exh.P/1-A of P.W. Haji Khudai Nazar (father of the deceased) who disclosed that he was informed by one Mehmood son of Ahmed Shah Khilji that his son Ahmed Shah alias Gulai has already been removed to the Civil Hospital, Quetta for treatment, so he immediately reached the Civil Hospital and found his son lying unconscious having suffered a bullet wound towards his right ribs. P.W. Khudai Nazar in his deposition stated that he alongwith Mehmood reached hospital on receipt of information as given to him by said Mehmood and found his son having suffered one bullet wound below his right rib and thereafter, police reached there and recorded his statement which he produced as Exh.P/l-A. In order to prove violent death of deceased, the prosecution has produced Dr.Muhammad Murad Marri as P.W.5 and according to him on 15-1-1999 at 10-55 p.m. Ahmed Shah alias Gul son of Haji Khudai Nazar was brought to the Casualty Department of Civil Hospital, Quetta by S.H.O./Police Station Gawalmandi with this history of a gun shot wound and he examined the injured and found that he had suffered a lacerated entrance wound oval in shape size 2-1/2 x 1/2 cavity deep on the lateral part of right side of the abdomen and the patient was referred by him to the Surgical Unit No,II after taking X-rays of the abdomen of the injured. The Medical Officer opined that the patient was referred to Male Surgical Unit as a case of gunshot wound of abdomen and according to him as per operation notes leproctomy was carried out by the Surgeon and as per ward notes, the injured expired on 8-1-1998 as his condition had become serious and the duty doctor provided to him life saving treatment. Probable cause of death according to the Medical Officer was the injury to the abdominal viscera caused by fire-arm.
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' From the medical evidence it transpires abundantly that deceased Ahmed Shah was brought to the hospital in injured condition with the history of gunshot wound and was examined by Dr.Muhammad Murad Marri and found that he had suffered a gun shot entrance wound cavity deep on the lateral part of right side of his abdomen and in order to repair the internal damage leproctomy was carried out by Surgeon Dr.Abdul Qayyum and on third day, condition of the injured became precarious, to whom life saving treatment was provided by the duty doctor in Male Surgical Unit No,II but he could not survive and expired at 1-05 a.m. On 8-1-1998. According to the medical officer the probable cause of the death of the deceased was due to the fire-arm injury suffered by the deceased on his abdominal viscera. This witness was cross-examined by the defence, but his evidence remained firm and consistent and thus; in our considered view the prosecution successfully established that the deceased died on account of the gunshot wound suffered by him on vital parts of his intra abdominal organs which in the ordinary course was sufficient to cause death and, therefore, the learned trial Court appropriately concluded that the deceased met with a violent death. OCULAR ACCOUNT 9. P.Ws. Mangol and Mir Hassan are the cited ocular witnesses produced by the prosecution, out of whom evidence of Mir Hassan has been discarded by the learned trial Court whereas; P.W. Mangol has been believed who deposed that on 5th day of 'Ramzan' he along with Mir Hassan (P.W.6) reached Quetta from Chaman and they both left to the house of a friend of Mir Hassan and heard fire reports, according to the witness at about 10-00/10-15 a.m. In front of them there was a…
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