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Petitioner: MUHAMMAD SIDDIQUE VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Iftikhar Muhammad Chaudhry, Raja Fayyaz Ahmed Title: MUHAMMAD SIDDIQUE vs THE STATE Case No.: Criminal Appeal No,92 and Criminal Revision No,34 of 1998 Date of Judgment:1998-07-15 Reported As: 1999 P Cr. L J 520 Result: Appeal partly accepted
JUDGMENT
JUDGMENT ' RAJA FAYYAZ AHMED, J.--- This appeal under section 410, Cr.P.C., has been preferred against judgment, dated 25-3-1998, passed by the Sessions Judge, Lasbella at Hub in Sessions Case No,39 of 1997 whereby the appellant has been convicted and sentenced under section 302, P.P.C. To fourteen years R.I. And under section 324, P.P.C., sentenced to five years R.I. Respectively for causing Qatal-e-Amd of deceased Syed Asghar Ali Shah and for committing murderous assault on Muhammad Siddique A.S.-I., directing that both the sentences to run concurrently with benefit of section 382-B, Cr.P.C., extended to the appellant. 2. Muhammad Siddique, A.S.-I. Victim of the alleged murderous assault has also filed Criminal Revision No,34 of 1998 seeking for enhancement of the sentence awarded to the appellant. As both the matters i,e,, criminal appeal and the criminal revision were heard together and as identical points of facts and law are involved which pertain to the same incident, therefore, we intend to decide the same together by this judgment. 3. Briefly, the stated facts' of the case are that on 11-12-1996, Ghulam Hussain, Constable Police Station Uthal (P.W.1) lodged a written report (Exh.P/1-A) with the S.H.O. Police Station Uthal to the effect that on 11-12-1996 at about 10-15 p.m. He along with A.S.-I. Muhammad Siddique its Official vehicle proceeded on 'Gasht' and for the checking of guards at duty and A.S.-I. Siraj Ahmed also boarded in the said vehicle. According to the informant Hawaldar Muhammad Ali and a sepoy Abdul Sattar also boarded in the said vehicle from Bazar Uthal because Muhammad Ali was the guard incharge. It has been alleged in the report that on their way A.S.-I. Siraj Ahmed got down from the vehicle and fetched-a 'Chadar' from his house situate near petrol pump and handed over the same to A.S.-I. Muhammad Siddique (P.W.4) and himself went back to his house where after
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they went to the bungalow of S.P. Where guard incharge Muhammad Ali and Abdul Sattar constable alighted from the vehicle and at that time (sic) Muhammad Siddique constable No,414 (convict) was found to be on duty in uniform equipped with service rifle and at that time the suspected person namely Ali Asghar Shah was also found to be sitting with the guard Muhammad Siddique and A.S.-I. Muhammad Siddique inquired from Muhammad Siddique guard, as to why on the mid of night an important guard duty a civil man has been allowed to sit along, which was felt badly by guard Muhammad Siddique who stated that he was on duty for three hours, so he can do whatever he likes and that nobody can check him and thereupon A.S.-I. Muhammad Siddique addressed to guard in charge Muhammad Ali as saying, to note such fact and that he would complain to the S.P. And thereupon constable Muhammad Siddique walked about 10/12 paces, loaded his rifle and fired an aerial shot, then fired second shot on A.S.-I. Muhammad Siddique which passed from his behind and he threw himself on the bush, whereas; third shot was fired at A.S.-I. Muhammad Siddique which hit Ali Asghar Shah who fell down on the ground and fourth bullet hit Muhammad Siddique A.S.-I. And thereafter, accused Muhammad Siddique ran towards R.C.D. Road by making aerial firing. On the basis of written report case Crime No,25 of 1996 was registered with Police Station Uthal under section 324 read with section 353, P.P.C., and consequent upon the death of injured Syed Ali Asghar Shah, section 302, P.P.C., was also added. On registration of the case Abdul Hameed S.-I. Police Station Uthal (P.W.14 (commenced with the investigation of the necessary investigation and challan for the trial of the aforementioned offences against accused Muhammad Siddique Constable was submitted in the Court of learned Sessions Judge, Labella at Hub. The learned Trial Court on 5-5-1997 indicted the accused for the commission of offence under sections 302, 324 and 353, P.P.C., to which the accused did not plead guilty and the prosecution to substantiate the accusation against accused, examined 14, prosecution witnesses namely Ghulam Hussain constable (P.W.1), who lodged the written report and an eye-witness of the incident, Muhammad Ali Head constable Police Station Uthal and guard in charge (P.W.2) being the ocular witness of the incident in whose presence blood-stained earth, sand and blood-stained gravel besides crime empties were secured from the place of incident, Siraj Ahmed A.S.-I. (P.W.3) who initially accompanied A.S.-I. Muhammad Siddique and arrested the accused and in his presence service - revolver of A.S.-I. Muhammad Siddique was taken into possession vide inventory and he is also witness to Exh.P/3-B whereby the blood-stained clothes of deceased etc., were taken into possession, Muhammad Siddique A.S.-1. P.S. Uthal (P.W.4) is also the ocular witness of the incident, who sustained bullet injury, Dr. Muhammad Amin, (P.W.5) Medical Officer District Headquarter Hospital Uthal examined the injured Ali Asghar Shah and Muhammad Siddique A.S.-I. On 12-12-1996 and respectively issued M.L.Cs. Exh.P/5-A and Exh.P/5-B, Hizbullah, Qanoongo Tehsil Uthal (P.W.6) prepared sketch of the place of incident on the potation of Abdul Hameed SI/S.H.O. P.S. Uthal, Dr. M.A. Qureshi, Professor Civil Hospital/Dow Medical College, Karachi (P.W.7) treated the injured Muhammad Siddique S.-I. In Anklesaria (Pvt.) Hospital, Karachi who produced the M.L.C. Issued by him as Exh.P/7-A and the other relevant documents pertaining to the treatment of the injured, Abdul Sattar constable Police Station Uthal (P.W.8) and Muhammad Ayub constable Police Station Uthal (P.W.9), are the cited ocular witnesses of the incident; Sanaullah head constable (P.W.10) is the witness to the taking into possession of the revolver and the service rifle respectively from Muhammad Siddique A.S.-r and accused Muhammad Siddique constable, Muhammad Din constable (P.W.11) produced the blood-stained clothes of the deceased to the S.H.O. Which were taken into possession vide Exh.P/10-B, Abdul Rasheed (P.W.12) deposed about the motive and the mishap taken place between A.S.-I. Muhammad Siddique and accused Muhammad Siddique earlier to the incident, Allah Bakhsh (P.W.13) in whose presence the dead body of deceased Ali Asghar Shah was taken into possession by the S.H.O. Police Station Uthal and the articles recovered from the search of the dead body and (P.W.14) is the Investigating Officer of the crime.
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' After close of the prosecution case the appellant/accused was examined by learned Trial Court under section 342, Cr.P.C., in the light of the incriminating pieces of evidence brought on record during the course of trial wherein the accused denied the case of prosecution as a whole, and in disproof of the charge opted to make statement on oath under section 340(2), Cr.P.C. The accused in his statement on oath deposed that he performed guard duty at the residence of S.P. Lasbella at Uthal at 3-00 a.m. To 6-00 a.m. According to him on the next day of the alleged occurrence he had to perform guard duty from 3-00 p.m. To 6-00 p.m. During the day and stated that he used to inscribe his signature on a register lying at the guard duty room of the S.P. Bungalow and thereafter, the guard in charge used to issue him the official gun. He further deposed that after finishing his duty again he used to put his signature before handing over the official gun to the guard in charge and that on the night of the alleged occurrence when he came on his guard duty at 3-00 a.m. In the night, he was informed by the guard recharge that murder has been committed in front of the house of S.P. And he was directed by the guard in charge to go to the Police Station for lodging report. According to the accused on such direction when he reached to the Police station, S.H.O. Police Station Uthal, Abdul Hameed directed him to stay at Police Station and on the next morning he was informed that he has been arrested in the instant case. Accused pleaded to be innocent and stated that he had no connection with the murder of deceased Ali Asghar Shah who has been done to death by A.S -I. Muhammad Siddique and such fact had been conveyed to him by the real brother of the deceased. The accused in defiance produced only one witness namely Amin Shah son of Syed Latif Shah, who is the real brother of the deceased Ali Asghar Shah and deposed that he was no resent at the time of the incident but stated that the accused Muhammad Sidique did not kill his brother but he (Muhammad Siddique Constable) has been wrongly implicated in the case. ' After close of the parties case the learned Sessions Judge convicted and sentenced the appellant as hereinbefore mentioned. 4. Ghulam Hussain constable Police Station Uthal (P.W.1) deposed that on 12-11-1996 he along with Siddique and Siraj A.S.-Is. Left the Police station and reached to Uthal Bazar where Muhammad Ali head constable (P.W.2) and Abdul Sattar, Constable boarded in the vehicle and thereafter, A.S.-I. Siraj was dropped at his quarter situate near Uthal petrol pump and thereupon at about 10-15 p.m. They reached to the bungalow of S.P. Uthal where A.S.-I. Siddique (P.W.4) inquired from accused Muhammad Siddique that as to why he has allowed civilian to sit with him during the guard duty hours, on which the accused responded that the civilian sitting with him is his guest and after finishing his duty at 12-00 M./N. Will take him along. According to the witness the accused further stated to Muhammad Siddique A.S.-I. That he being on duty can allow anybody to sit with him and thus, Siddique A.S.-I. Told to the guard in charge namely Muhammad Ali that he to take note of such fact and to bring the same into the notice of S.P. Tomorrow, which annoyed the accused who stepped back about ten paces loaded his official gun and fired in the air and second shot was fired by accused on Siddique A.S.-I. (P.W.4) and on his third fire the witness jumped and concealed himself behind 'kiker' tree but on such fire, he heard voice of said civilian .Person and also heard three more gunshot reports. The witness further deposed that thereafter, another Police guard reached to the place of incident but he did not see him, howler he heard so that such guard had pushed the vehicle started the same and took the injured A.S.-I. Siddique to the Police Station and he also went to the Police station, thereafter, before his arrival to the Police Station they had left for hospital. He stated that report of the alleged occurrence was made by him to the Police and stated that civilian Ali Asghar Shah was shifted to the hospital in Edhi Ambulance which he had seen at the main R.C.D. Road. He produced his written report as Exh.P/1-A and identified the accused in Court who had fired.
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' Muhammad Ali, Head Constable Police Station Uthal (P.W.2) deposed that he was performing his duty as guard incharge of the guards deployed at the S.P's. Bungalow for a week's time when on 11- 12-1996, constable Muhammad Siddique was performing his guard duty with service gun from 9- 00 a.m. To 12-00 p.m. And on the same night of 11-12-1996 at about 10-00 p.m. He along with Abdul Sattar constable went to bus stop Uthal, where they had taken tea in a hotel and at that time he found Muhammad Siddique A.S.-I., Siraj A.S.-I. And Ghulam Hussain constable coming out of the hotel after having dinner and on the request of constable Sattar, Muhammad Siddique A.S.-I. Agreed to drop them in his vehicle at the bungalow of S.P. And according to the witness, when they in the said vehicle stopped at the bungalow of S.P. Where they got down from the vehicle and noticed that the civilian person was sitting with Muhammad Siddique guard, on which Muhammad Siddique A.S.-I. Inquired from accused constable, as to why he has allowed civilian person is sitting with him during guard duty; to which the accused replied that the said person is his guest, so he allowed him to sit with him and thereupon Muhammad Siddique A.S.-I. Told to the accused that he is performing guard duty as such should not allow any civilian to sit with him during guard duty hours, to which the accused replied to Muhammad Siddique A.S.-I. That he is on guard duty and it is for him to allow any person to sit with him during his duty hours. Thereupon; according to the witness, A.S.-I. Muhammad Siddique alighted from the vehicle and told to the guard Muhammad Siddique constable that previously he has also done so; which was not good on his. Part, on which the accused loudly spoke that 'not to abuse' who stepped back 10/12 paces and loaded his official gun and started firing. According to this witness accused Muhammad Siddique fired six shots which hit the said civilian person who fell down on the ground and a bullet also hit Muhammad Siddique, A.S.-I. (P.W.4) thereupon; A.S.-I. Muhammad Siddique went to the Police station on his vehicle and the accused along with the official gun proceeded towards the main R.C.D. Highway and in the meanwhile; Edhi Ambulance reached to the place of occurrence wherein the injured civilian was taken to the civil hospital. The witness deposed that afterwards he, on telephone from the S.P's. Office informed about the incident to the Police Headquarter. The witness further deposed that after occurrence, S.H.O. Police Station Uthal came to the place of occurrence who took into possession cap, Chadar, six empties, blood-stained earth and gravel vide separate memos. Exh.P/2-A and Exh.P./2-B. He stated that empties were taken into possession vide inventory Exh.P/2- B. The witness identified articles in Court taken into possession vide abovementioned memos. The witness identified accused in Court who having resorted to firing. ' Siraj Ahmed, A.S.-I. (P.W.3) deposed that on 11-12-1996 Muhammad Siddique A.S.-I. Along with Ghulam Hussain constable was on 'gasht' duty on which date Ali Asghar Shah was killed and A.S.-1. Muhammad Siddique was injured in the incident, S.H.O. Police Station Uthal deputed him and Sanaullah head moharar for the arrest of accused Muhammad Siddique, who was arrested by them in front of the house of Deputy Commissioner. According to the witness at the time of arrest the accused had the service rifle and a bandolier with him who was shifted to Police station and thereafter, he proceeded to the hospital in order to see the injured A.S.-I. Muhammad Siddique. He further deposed that S.H.O., took into possession, the official revolver of A.S.-I. Muhammad Siddique vide recovery memo prepared in the hospital on which he and Sanaullah head Moharar put their signatures and attesting witnesses. According to the witness the S.H.O. Also took into possession the blood-stained concrete and earth besides six empties were also secured from the place of occurrence. The witness stated that the clothes, cap and Chadar of the deceased were also taken into possession by the S.H.O., and recovery memos in respect of the abovementioned articles were prepared in his presence, which he. Produced in Court as Exh.P.2-A and Exh.P/2-B. He produced the parcel of the revolver as Article P.13 and identified revolver as Article P.14 and the bullets as articles P.16 to P.21 and the empty as Article P.23. He also produced the parcel of blood-stained clothes of the deceased and identified the articles thereto in Court. The parcel of the empties secured from
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the place of incident containing empties was also produced by this witness besides the parcel of the blood-stained concrete and earth was produced by this witness and identified the contents thereof. ' Muhammad Siddique son of Ghulam Muhammad A.S.-I. Police Station Uthal (P.W.4) is the ocular witness of the incident wherein he sustained bullet injury. According to him on 11-12-1996 at about 10-00 or 10-15 p.m. He along with Siraj A.S.-I. And Ghulam Hussain constable (P.W.1) was on 'Gasht' duty and checking of guards. He deposed that after leaving the Police Station they went to the bus stop where they took tea and on the meanwhile Head Constable Muhammad Ali (P.W.2) and Constable Abdul Sattar reached there and asked him to drop them at S.P.'s house. The witness stated that he took them along to the residence of S.P., Lasbella at Uthal and on his way A.S.-I. Siraj Ahmed was dropped and he reached to the destination where also the Head Constable Muhammad Ali and Constable Abdul Sattar got down. According to the witness at that time accused Muhammad Siddique was on guard duty at the residence of S.P., Lasbella and found a civilian person sitting with the accused, so he alighted from the vehicle and asked the accused that he was not supposed to allow any civilian to sit with him during the duty hours and the accused replied to him that since he is on duty, therefore, he is free to allow any person to sit with him, who further asked the witness that he is nobody to ask from him and thereupon he directed the guard in charge Muhammad Ali Head Constable to note such fact and to bring the same in the notice of S.P. Tomorrow; thus, the accused, according to the witness got annoyed who stepped back ten paces and in the meanwhile; the witness took the seat in his vehicle and was about to start the vehicle but the accused fired six shots, out of which one of the bullet fired by accused hit him on his leg and the other bullets crossed in front of his chest and right arm and he concealed himself under the dashboard of vehicle. The witness further stated that he also heard the voice of civilian sitting with the accused saying 'not to fire' addressing to the accused but thereafter, this voice turned feeble. According to P.W.4 who was in semi-conscious condition, asked Ayub constable to apprehend the accused. Further according to the witness the said constable pushed their vehicle which as such started and they went to the Police Station where he became unconscious. According to the witness he was shifted to the hospital at Uthal and from there to Karachi for further treatment. ' Describing about the motive of the occurrence he stated that on 31-10-1996 one Umer constable was chased by him, having a stolen motorcycle who made good his escape in the wild and such matter was reported by him to the S.H.O. Police Station Uthal, who suspended constable Umer but after about 20, days of the aforementioned incident, the accused along with Umer constable came to him and told that being a local person of the area he has, done no good and the accused threatened him that he will see to the witness. The witness stated that for such reason in order to take revenge, he was attacked upon by the accused. The witness further stated that prior to the incident Sardar Abdul Rasheed Jamot (P.W.12) alongwith his brother namely Akram met with the accused and asked him to refrain from extending threats to the witness but the accused did not pay any heed to such request and left the place. The witness stated that due to the intervention of the above said persons he did not report the matter to the S.P. And kept quiet but has been attacked. ' Dr. Muhammad Amin, Medical Officer District Headquarter Hospital Uthal (P.W.5) on 11-12-1996 at bout 11-30 p.m. Examined the injured Ali Asghar Shah who was in serious condition and A.S.-I. Muhammad. Siddique who was brought to the hospital by the S.H.O., Police Station Uthal. The injured Muhammad Siddique A.S.-I. Was provided first aid by P.W.5 and was referred to the civil hospital, Karachi for treatment. After examination of the injured the Medical Officer issued M.L.Cs. In respect of Syed Ali Asghar Shah deceased and Muhammad Siddique respectively as Exh.P/5-A and Exh.P/5-B under his signatures. P.W.4 A.S.-I. Muhammad Siddique got treatment at Karachi from Dr.
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M.A. Qureshi in the Anklesaria Hospital who was examined by the prosecution as P.W.7. Dr. M.A. Qureshi, Professor Dow Medical College, Karachi produced the M.L.C. Of the injured Muhammad Siddique besides treatment chart and other relevant documents pertaining to the treatment of the injured. The medical evidence brought on record by P.W.5 Dr. Muhammad Amin and Dr. M.A. Qureshi has been dealt with hereinafter in the relevant part of this judgment. ' Hizbullah, Qanoongo, Tehsil Durreji (P.W.6) has produced sketch of the place of the occurrence as Exh.P/6-A, who deposed that he was called by the S.H.O. Police Station Uthal namely Abdul Hameed (P.W.14) and visited to the place of occurrence alongwith P.W.14 and on his pointation he prepared sketch of the place of occurrence. ' Abdul Sattar constable Police line Uthal (P.W.8) deposed that on 11-12-1996 he alongwith Muhammad Ali head constable had gone to the bus stop Uthal for taking tea and A.S.-I. Muhammad Siddique also came there whereupon they both seated in the vehicle because A.S.-I. Siddique was going on 'Gasht' and they wanted to be dropped on his way. According to the witness from the bus stop A.S.-I. Siddique proceeded to the quarter of Siraj A.S.-I. Who had taken a Chadar from there and thereafter, they reached to the bungalow of S.P. Where on civilian Shah Jee was found sitting with the accused on which A.S.-I. Siddique asked to the accused, as to why he had allowed the civilian to sit with him during guard duty, to which the accused replied that during his three hours duty he is responsible and he can allow any person to sit with him and further stated to A.S.-I. Muhammad Siddique that he is nobody to ask him about and then A.S.-I. Siddique directed to Muhammad Ali Head Constable to take note of such matter and to bring the same to the notice of S.P. Tomorrow and thereafter, hot words were exchanged between the accused and A.S.-I. Muhammad Siddique whereupon, accused Muhammad Siddique constable stepped back and made a fire in the air and second fire was missed and on third shot fired by accused, he heard scream of said Shah Jee and he concealed himself in the guard room where he heard three more shots having been fired. According to the witness thereafter, the injured was taken to the hospital in Ambulance. ' Muhammad Ayub constable (P.W.9) stated that on 11-12-1996 he was performing guard duty at National Bank of Pakistan, Uthal Branch and suddenly he heard gun shot reports towards west, on which he asked the guard of bank to see as to who is firing and the bank guard came down and told to him that constable Muhammad Siddique is firing and he thereupon; reached near to the said guard of the bank. The witness stated that 3/4 shots were fired earlier and he had witnessed only two fires having been shot by the accused Muhammad Siddique constable. According to the witness one fire hit a glass and other to a vehicle but he did not see by himself that the bullet hit glass and vehicle. He further stated that he had heard constable Abdul Sattar saying that 'don't fire brother Siddique' and thereupon he asked constable Muhammad Siddique (accused) that on whom he is making fire, to which accused replied there is someone. The witness stated that thereafter, accused called him and told to him that All Shah has fallen down as injured and to shift him to the hospital and thus, the witness reached to the place of occurrence where he found Ali Shah lying on the ground screaming as 'Allah 0 Siddique, died'. According to the witness at such time, he saw A.S.-I. Siddique inside the vehicle in injured condition to whom he asked about the reason for the firing on which he directed him to apprehend accused Muhammad Siddique constable and no sooner he stepped ahead towards the accused he was asked by the accused not to go to him and in the meanwhile A.S.-I. Siddique asked him to push the vehicle and while he was pushing the same Muhammad Salim Operator came there on motorcycle (not examined) to whom the accused asked to shift the injured Ali Asghar Shah to the hospital and Muhammad Salim said that he would bring Edhi Ambulance, for which purpose Muhammad Salim left the place and A.S.-I. Muhammad Siddique in his vehicle left the place of occurrence and thereafter, accused called Muhammad Ali Head Constable and Abdul Sattar constable and stated that 'this person is
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dying here and you people are inside' on which Abdul Sattar constable stated that he would on telephone, convey the information to the Police station on the bungalow. Further, the witness stated that afterwards head constable hammed Ali directed. The accused to hand over the rifle to him but he refused d stated that he will not hand over the rifle to any one and in the meanwhile hi Ambulance reached to the site, from where the injured was shifted, while accused alongwith rifle also left the…
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