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Petitioner: LIAQUAT ALI and others VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Mehta Kelash Nath Kohli, Muhammad Nadir Khan Title: LIAQUAT ALI and others vs THE STATE Case No.: Criminal Appeals (ATA) Nos.341 and 342 of 2004 Date of Judgment:2008-07-07 Reported As: 2008 MLD 1611 Result: Appeals allowed
JUDGMENT
JUDGMENT ' MEHTA KAILASH NATH KOHLI, J.---This judgment shall dispose of both these Criminal Appeals (ATA) 341 and 342 of 2004, directed against judgment, dated 18th December, 2004 passed by Special Judge, Anti-Terrorism Court-I, Quetta in Special case No.24 of 2003, whereby; appellants namely; Liaqat Ali Marri (in Appeal No. 341) and, Wadera Mitha Khan, Wadera Kareem Bakhsh and Ali Muhammad (in Appeal No.342) have been convicted and sentenced in the following manner:-- (i) under section 7(a) Anti-Terrorism Act, 1997 read with section 302(b), P.P.C. To suffer imprisonment for life for causing each murder, with fine/compensation of Rs.1,00,000 each, payable to legal heirs of deceased Nasrullah, Najam-udDin, Sakhi Dad, Mehrab Khan, Sher Muhammad and Sultan Jan, in default thereof to further undergo one year simple imprisonment, each. (ii) Under section 7(c) Anti-Terrorism Act, 1997 to suffer reigorous imprisonment for three years with fine/compensation of Rs.10,000 each, payable to injured Durrani Khan, Akhtar Muhammad and Baloch Khan, in default thereof; to further undergo two months simple imprisonment, each. (iii) Under section 365, P.P.C., to suffer three years rigorous imprisonment each for abduction of Rehmatullah and Qalandar Khan with fine of Rs.30,000 each, in default thereof; to further undergo three months simple imprisonment, each. ' Benefit of section 382-B, Cr.P.C. Has been awarded in favour of appellants Wadera Kareem Bakhsh and Ali Muhammad alias Lio, and their sentences were to run concurrently." ' Facts of the case, in brief, are that on 3rd July, 2002, at 1-00 p.m. F.I.R. No.9 of 2002, under sections 302/324, Qisas and Diyat Ordinance read with sections 147, 148, 149, 109, 365, P.P.C. Was registered by Levies Station Hadsari, District Loralai on the report of one Nasrullah son of Saifullah Khan, caste Samand-Looni, resident of Dukki, stating therein that complainant and his relatives being lease
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holders of Chamalang area were residing in Chamalang. It was further alleged that on 29th June, 2002 at about 5-00 p.m. Complainant along with his relatives namely Nasrullah alias Nasro son of Tajjak Looni, Sakhi Dad son of Allah Dad, caste Kattakhail-Looni, Najam-ud-Din son of Mulla Noor Muhammad, Caste Narzai-Looni, Mehrab Khan son of Akhtar Muhammad, caste Samand-Looni, Sher Muhammad son of Jan Muhammad caste Marzai-Looni, Sultan Muhammad son of Siddique Looni, Baloch Khan son of Fazil Khan, caste Samand-Looni, Akhtar Muhammad son of Mashai Looni, Raheem Dad son of Muhammad Kareem Looni, Durrani Khan son of Muhammad Yaqoob Looni, Qalandar Khan son of Nazar Muhammad were present on their lease area, in the meantime; some persons belonging to Marri, tribe namely Daulay son of Haibat Drani-Marri, Wazir Khan son of Nohak DraniMarri, Rozay Khan son of unknown Drani-Marri, Kaka son of Dada Drani-Marri, Mulla Rozay son of unknown Shahijo-Marri, Addo son of Naimat Drani-Marri, Liaquat son of Muhammad Nawaz QalandaraniMarri, Ghulam Bakhsh son of unknown Drani-Marri, Kareem son of Mubarak Shahijo-Marri, Wadera Paind. Khan Pawadi-Marri, Kaloo son of Nokha Bajrani-Marri, Syed Akbar son of Jhanda Khan Bajrani-Marri, Wadera Sher Baz son of Bangui Khan Pawadi-Marri, Jaffar Khan son of Wadera Kareem Dad Pawadi-Marri, Mitha son of Essa Khan Qalandarani-Marri, Lio son of Sawal Khan Siahozai-Marri, Haji Ameer Hamza son of Sawal Khan Siahozai-Marri, Miroo son of Sawal Khan Siahozai-Marri, wearing levies uniform came to their trench and asked them that they are levies personnel and had come to safeguard them, suddenly; they started firing upon them, on account of which Nasrullah alias Nasru, Sakhi Dad, Najam-ud-Din, Mehrab Khan, Sher Muhammad and Sultan Muhammad sustained injuries and died on the spot, while Baloch Khan, Akhtar Muhammad, Raheem Dad and Durrani Khan, sustained firearm injuries and, Qalandar Khan was abducted, as well as, one Labourer was also abducted by said people of Marri tribe, however; one Abdullah Jan son of Kotay caste Looni escaped from their hands. It has been stated that at the instance of Wadera Mir Hazar Bajarani-Marri, Muhabbat Khan son of Fateh Khan (Provincial Minister), Wadera Noor Muhammad Bajarani-Marri, Naseebullah son of Noor Muhammad (District Nazim, Kohlu), Wadera Muhammad Yagoob Marri, Wadera Kareem Dad Pawadi Marri, Wadera Falak Sher son of Wadera Bangul Khan Pawadi-Marri, Wadera Qatal Bajarani-Marri, alleged commission of offence was committed. Motive behind the incident was stated to be dispute over coal lease in Chamalang since long, and accused party forcibly wanted to occupy their lease area, which has been allotted to Looni tribe in revenue record. After completion of investigation, challan to the extent of present accused-appellants was submitted in the Court of competent jurisdiction. Learned Special Judge, Anti-Terrorism Court-I, Quetta took cognizance in the matter; charge was framed, which was denied by the present accused-appellants, while remaining co-accused persons were declared absconders. ' To substantiate accusation, prosecution produced following evidence:-- ' P.W.1. Muhammad Yar son of Niaz Muhammad appeared and deposed that few days before 29th June, 2002, he was present on his lease at Chamalang, one person belonging to Marri tribe came to him and asked him that Muhabbat Khan had called him, one Jamal-ud-Din was also present with him; he and Jamal-ud-Din went along with said person to Muhabbat Khan Marri, where Wadera Kareem Bakhsh and Liaquat were already sitting. Muhabbat Khan asked him to vacate the area i.e. Kharghundi, as the people of Gizaini-Marri tribe had come in that area and they have fear, upon which he agreed on the swear of Qur'an and he along with Liaqat Marri and had handed over vacant possession of Kharghundi to him. It was further deposed that on 29th June, 2002 at 5/6:00 p.m. He along with Jamal-ud-Din were on routine patrolling of their area, when they reached near Sardar trench where they saw about 18 persons appeared, who were wearing levies uniform, who suddenly threw a grenade in the said trench and soon thereafter started firing upon their (witnesses) men, in result whereof they were falling down. It was stated that firing was made by Kareem Bakhsh son of Mubarak, Liaquat Marri, Lio, Mitha Marri, Daulay, Mulla Rozay, while; witness
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and Jamal-ud-Din hided themselves in a channel known as Shila. It has been further stated that on account of alleged firing Nasrullah alias Nasru son of Tajjak, Najam-ud-Din son of Mula Noor Muhammad Looni, Sakhi Dad son of Allah Dad Looni, Sher Muhammad son of Jan Muhammad, Sultan Muhammad and son of Akhtar Muhammad whose name was not recognized by the witness had died. It was also stated that on account of firing made by above said persons, injuries were caused to Raheem Dad son of Muhammad Kareem, Akhtar Muhammad son of Niaz Muhammad and Durrani Khan son of Yaqoob Khan. Witness had identified accused present in Court namely Liaquat Marri, Wadera Kareem Bakhsh, Lio and Mitha Khan to be the same, while he can identify the other accused persons who had made firing. ' In cross-examination, he stated that he was present on the spot for the purposes of looking after his lease; further stated that they also remained present on their lease during night time. It was stated that he had remained present for one hour with Muhabbat Khan Marri and Muhabbat Khan Marri had introduced Liaquat Marri to him. It was further stated that his lease is situated at a distance of one kilometer from Kharghundi. He denied that his lease was situated at some distance of Muhabbat Khan Marri's lease, further stated that his lease is situated at a distance of two kilometers from the lease of Muhabbat Khan Marri. It was admitted that in between their lease there are mountains. It was admitted that there exists enmity between the tribe of Muhabbat Khan and Gizaini-Marri tribe. It was stated that there is no trench except at Kharghundi and Sardar trench; voluntarily stated that there was a trench wherein two persons were sitting only having telescopes. It was denied that lease of Muhabbat Khan was situated near Kharghundi. It was stated that with regard to the incident, he himself had gone to Tehsildar Dukki and got recorded his statement under section 161, Cr.P.C. On 23rd August, 2003. It was denied that he along with complainant Nasrullah had gone to Tehsildar Dukki; voluntarily stated that he had gone along with Jamal-ud-Din. He denied that Nasrullah was his relative; voluntarily stated that he also belongs to Looni tribe. He denied that before the occurrence of incident, he was called by Muhabbat Khan Marri. It was denied that neither accused persons were wearing uniform nor they had made firing. He denied that in his statement under section 161, Cr.P.C., he had not stated that accused persons after their arrival had thrown grenade in the trench (Confronted, not so recorded). He denied that accused Liaquat Marri and Mitha Khan were not present on the spot nor they had made firing on account of which above said persons died and injured: It was denied that at the instance of Nasrullalt he had made false statement. In further cross-examination, witness stated that he is a school teacher. It was further stated that distance between Killi Bhagat and Chamalang is about 24 kilometers. It was admitted that few days before the incident and on the day of incident there was no vacation in the school; voluntarily stated that he had obtained leave from the school, however; he did not produce any document before Tehsildar in this regard. It was admitted that he had no work in his lease; voluntarily stated that he had visited his lease and returned back. It was admitted that he had not produced any document before Tehsildar with regard to ownership of alleged lease; voluntarily stated that he can produce the same. It was stated that alleged lease was inherited by them. It was further stated that at the time of incident he was present at a distance of 25 yards from Sardar trench, wherein; 12 persons were present; further stated that the persons died were armed with weapons, while the persons who sustained injuries were empty handed. It was admitted that accused Mir Muhabbat Khan Marri, was tribe head of accused persons. It was admitted that on the direction of Muhabbat Khan Marri, he had handed over possession of Kharghundi to them. It was stated that from the date of incident till the date of recording of his statement, he had not gone to Tehsildar. It was denied that he had not given the names of deceased persons, as well as, names of injured persons in his statement (Confronted, not so recorded). It was further admitted that identification parade of accused persons was not made by him. It was denied that accused Ali Muhammad was in Dera Ghazi Khan and Multan from 25th
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June to 30th June, 2002 and was not present on the spot; further denied that accused Wadera Kareem Bakhsh was also not present on the spot. It was denied that on the day of incident, accused persons had not made firing upon complainant party and the accused persons were falsely involved in the commission of offence. It has been stated that complainant Nasrullah is his tribesman, while he has no relationship with him. He showed his ignorance that some civil litigations are pending between Marri and Looni tribes before civil Courts. Suggestions were made were replied. ' P.W.2. Durrani Khan son of Yaqoob Khan (injured) deposed that he was deputed for watching the coal lease of their tribe situated in Chamalang. He further deposed that on 26th June, 2002 he was present on one of the mountain of their lease area, he was having a telescope, through which he saw that from lease area of Marri tribe some levies personnel came and started claiming their big mountain, while his companions present on the mountain did not make firing upon said persons. It was stated that thereafter firing was started indiscriminately. It has been stated that he had identified four persons wearing levies uniform namely Wader% Kareem, Daulay, Wazir Khan and Ameer Hamza, who had made firing, while he did not identify remaining assailants. It was stated that firing was also made on his mountain and when he climbed down from the mountain and was going towards his lease, he sustained firearm injury on his buttock. It was further stated that when he came down from the mountain, people of Looni tribe had gone, while only two/three persons were present on the spot. He had identified accused Wadera Kareem Bakhsh, while he can identify the remaining accused persons, if produced before him. ' In cross-examination, he stated that at about 5-00 p.m. Incident took place. He did not remember the exact distance between the place of incident and the place where he was present; voluntarily stated that voice can be heard. It was stated that the place where he was standing was situated at a distance of twenty minutes from Levies Station. He has stated that he was not having any weapon with him. It was stated that he was present on a mountain of twenty yards of height. It was stated that his statement under section 161, Cr.P.C. Was recorded by Tehsildar on 13th July, 2002. It was stated that his village was situated at a distance of fifty miles from the place of incident. It was further stated that he used to visit his lease after every five/six days, while on remaining days other paity used to watch the area. It has been stated that being injured on account of alleged incident, he had gone to his house and remained under medical treatment for ,seven days, during which none of he Government officials met with him, however; on 13th July, 2002, Tehsildar came to his house and had recorded his statement, while he himself had not gone to Tehsildar for recording his statement. Various suggestions were made to the witness were denied. It was stated that firing was continuously made for about 2-1/2 hours, in the meantime; he remained sitting in a ditch. It was further stated that after close of firing it was dark, as such; he went to his house and remained under medical treatment of one doctor Hayat. He denied that the assailants were not wearing levies uniform. It was denied that Wadera Kareem Bakhsh was not present on the spot. He showed his ignorance about any settlement between Looni and Marri tribes and there was no dispute between both the tribes. He showed his ignorance about severe enmity between Gizaini and Bajarani sub-tribes of Marri tribe. He denied that people of GizainiMarri tribe had made firing upon his tribesmen and had killed and injured them. He admitted that he is permanent resident of LotiChamalang and complainant Nasrullah is his relative. He did not know the names of fathers of accused Daulay, Wazir Khan and Ameer Hamza. It was stated that at the time of recording his statement, his uncles Muhammad Hussain and Muhammad Hassan were also present with him. ' P.W.3 Haider Khan son of Sardar Hassan Khan appeared and deposed that on 25th May, 2000, on the invitation of Muhabbat Khan Marri he along with other notables of Looni tribe went to MarriChamalang where Muhabbat Khan told them that Hazar Khan, Noor Muhammad, Naseebullah, Falak Sher, Wadera Kareem and Wadera Qatal are demanding 200 feet land each in
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the coal lease area of LooniChamalang and on refusal, they were threatened for clash, upon which, Sardar Asmatullah replied that they will not give an inch to Marri tribe; thereafter, on 29th June, 2000 six persons of Looni tribe were murdered by people of Marri tribe. It has been stated that in the gathering on 25th May, 2000 Mir Taj Muhammad Mari had disclosed that one person of Nasar tribe and the other man of Looni tribe were murdered by Daulay and Mulla Rozay, in the meantime Muhabbat Khan Marri remained silent; further stated that accused Wadera Kareem Bakhsh, Muhabbat Khan and Mir Taj Muhammad Marri were present in the meeting of 25th May, 2000. He had identified accused Wadera Kareem Bakhsh and Muhabbat Khan Marri present in the trial Court. ' In cross-examination, it was stated that his statement under section 161, Cr.P.C. Was recorded on 14th September, 2002. It was stated that several times people of Looni and Marri tribes had fought over coal lease. It was admitted that Wadera Yaqoob and Naseebullah are notables of Marri tribe, while Naseebullah is also Nazim of Kohlu District. It was denied that accused Muhabbat Khan had not stated in the alleged sitting that Hazar Khan, Noor Muhammad, Naseebullah, Falak Sher, Wadera Kareem Bakhsh and Wadera Qatal demanded 200 feet land each and on refusal to do so, they were threatened for fight. It was admitted by the witness that his father is Sardar of Looni tribe. He denied that he had falsely implicated the alleged persons of Marri tribe. In further cross- examination, he stated that his statement under section 161, Cr.P.C. Was recorded, wherein he had stated that on 25th May, 2000, accused Kareem Bakhsh and Taj Muhammad were present in the alleged sitting (Confronted, name of Kareem Bakhsh was not mentioned). He denied that the alleged sitting/meeting never took place on the date disclosed by him. He denied that after due deliberation with his tribesmen, he had falsely involved the accused persons in the commission of offence. ' P.W.4 Wali Muhammad son of Haji Abdullah Jan deposed that on 29th June, 2002 he along with Meharban and Raz Muhammad after fetching water was going on the mountain where their tribesmen were present in the trench, when they reached near the trench, some people wearing levies uniform appeared who were identified to be Mulla Rozay, Daulay, Wazir Khan, Ghulam Bakhsh, Addo, Ameer Hamza, Miroo, Lio, Liaquat, Sher Baz and Jaffar Khan. It was further stated that one hand grenade was thrown by said persons in the trench and thereafter; they started firing, upon which, they had thrown the water canes and hided them in a ditch; he presumed that Wadera Kareem Bakhsh was also present along with the assailant. He had identified accused Liaquat Marri, Lio (Ali Muhammad), and Ameer Hamza (Mitha Khan). ' In cross-examination, he stated that he had gone to inspect the lease and was present on the spot. He stated that he had not recorded his statement to Levies. It was stated that about seven/eight persons were sitting in the alleged trench. It was denied that all the persons present in the trench were armed with weapons; voluntarily stated the persons who died were in possession of weapons. It was stated that the alleged trench was located on height. It was further stated that there were four other trenches i.e. Two big and two small were located around the place of incident. It was denied that near to their lease, lease of Muhabbat Khan is situated; voluntarily stated that his coal lease is situated on a long distance. Witness stated that he is a school teacher in Killi Bhagat High School and his duty timing is from 7-00 a.m. To 12-30 p.m. It was stated that distance between Killi Bhagat and place of incident is about fifteen kilometers. It was further stated that on a rented vehicle he had come to the place of incident. It was stated that around the place of incident, about 300 persons were present and at the time of incident process of excavation of coal was going on. He admitted that there was enmity between Gizaini-Marri and Bajarani-Marri. He denied that there is dispute between Nasar tribe and Looni tribe. In further cross-examination, he admitted that after the incident he had not met with any Government official, while he himself had gone to Levies Station and had recorded his statement under section 161, Cr.P.C. Wherein he
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had mentioned about Jaffar Khan (confronted, not so recorded). Suggestions with regard to fathers' names of accused persons were made. He stated that he knows the alleged persons. It has been stated that alleged coal lease in not in his name. It has been further stated that alleged lease is consisted of five kilometers of area. It was stated that distance between camp and place of water was about three/four kilometers. It was stated that his relatives Sakhi Dad (cousin) and Akhtar were present in the trench. He had stated that his statement under section 161, Cr.P.C. Was recorded on 6th July, 2002. It was stated that he had received the knowledge of death of his relatives and tribesmen in the afternoon of second day of the incident. He denied that he was not present on the place of incident. Suggestions were made, were denied. ' P.W.5 Baloch Khan son of Fazil Khan (injured) deposed that on 29th June, 2002, he along with Khan Muhammad and Akhtar Muhammad were present in Chamalang; further stated that they were taking food towards big trench at 5-00 p.m., in the meantime 18/20 people in levies uniform climbed from western side of the trench and asked that they are levies officials and had come for their security. Witness disclosed the names of said persons to be Paind Khan, Jaffar Khan son of Kareem Dad, Sher Baz son of Bangul Khan, Liaquat son of Muhammad Nawaz, Daulay son of Haibat Khan, Wazir Khan son of Notak, Rozi Khan, Mulla Rozay, Kalo son of Noka, Syed Akbar son of Jhanda Khan, Kaka Marri son of Dada Marri, Addo son of Naimat, Kareem son of Mubarak, Ghulam Bakhsh, Lio son of Sawal, Haji Ameer Hamza son of Sawal Khan and Mitha Khan son of Essa. It was stated that firstly the above said persons had thrown a grenade in the trench and thereafter started firing, witness attempted to escape, who had received firearm injury on his left leg; Akhtar Muhammad had also sustained firearm injury on his foot. It has been stated that on account of injury he could not walk, and he was brought down by Khan Muhammad, while Khan Muhammad was able to walk, and thereafter he was shifted to his house. He had identified accused Wadera Kareem Bakhsh, Liaquat Marri and Lio (Ali Muhammad). ' In cross-examination, he stated that for the purposes of watching the lease he had come to Chamalang. It was stated that alleged mountain's height is about 300 yards. It was stated that six persons armed with weapons were present in the trench, apart from big trench, there were two other small trenches. It has been stated that at the time of incident, excavation work of coal was in progress, and; about 500/600 labourers were doing the said work. It was stated that his statement under section 161, Cr.P.C. Was recorded on 13th July, 2002. It was stated that he remained admitted in hospital at Quetta for two days, and thereafter; remained on bed for about 4-1/2 months. It was stated that initially he was taken to Loralai and thereafter, he was shifted to Quetta. He has stated that he is employee of Balochistan Reserve Police. He denied that in his statement recorded under section 161, Cr.P.C., he had stated that when he turned he received bullet injury on his left leg and Akhtar Muhammad sustained injury on his foot, thereafter; he was pulled out by Khan Muhammad and was brought down from the mountain, while Khan Muhammad came on his own foot (Confronted, not so recorded). It was stated that alleged lease was allotted in the name of their forefathers. In lengthy cross-examination, witness supported the prosecution version. ' P.W.6. Akhtar Muhammad son of Mashai (injured) appeared in witness-box and deposed that he along with Baloch Khan and Khan Muhammad were present in Loti-Chamalang, they went for walking and climbed over a mountain and saw that from western side some people, who were wearing levies dresses, climbed over big mountains and introduced themselves to be levies officials; the said persons had thrown a grenade in the trench and thereafter they had started firing. Witness had identified four assailants namely Wadera Kareem Bakhsh, Mitha Khan, Sher Baz and Paind Khan. He had also identified accused Wadera Kareem Bakhsh and Mitha Khan present before the trial Courf, while accused Sher Baz and Paind Khan were absconders. It was stated that on account of fear they returned back and came near to the camp, in the meantime, he sustained
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firearm injury on his leg, while Baloch Khan had also sustained injury on his leg on account of which his leg was fractured. ' In cross-examination, three days before the incident, he had come to the place of incident. He stated that he is a contractor by profession. It was stated that they have to perform their duties for five days in a month, and the duties are being fixed by one Malik Miroo, who is notable of their tribe. It was stated that about 5-00 p.m. They went out side the camp where about 300 persons/labourers were present and were busy in excavation…
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