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Petitioner: SHABBIR HUSSAIN and others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Ahmed Ali M. Shaikh Title: SHABBIR HUSSAIN and others vs THE STATE Case No.: Criminal Appeals Nos.256, 258 and 260 of 2006 Date of Judgment:2010-07-28 Reported As: 2012 P Cr. L J 361 Result: Appeal allowed
JUDGMENT
JUDGMENT ' AHMAD ALI M. SHAIKH, J.---By this common Order I intend to dispose of above-noted Criminal Appeals as all the three appeals arise out of the same judgment dated 15-6-2006 passed by 1st Additional Sessions Judge, Karachi East whereby the appellants were convicted under sections 310 and 34, P.P.C. And sentenced to suffer R.I. For five years each as Taazir' and to pay jointly Diyar amount not less than the value of 30630 grams of silver declared by the Federal Government during the relevant fiscal year. 2. The facts giving rise to these appeals are that on 6-1-1998 deceased Sikandar Ali died while in police custody in Crime No,5 of 1998 of Police Station Jamshed Quarters, Karachi. On the protest of the legal heirs of the deceased a Judicial Enquiry was ordered by the Sindh Government. Consequently, Mr. Adnan Qadir, the then S.D.M. Of the area was appointed Enquiry Officer to conduct the judicial enquiry in respect of death/murder of deceased Sikandar Consequently upon the judicial enquiry conducted by the S.D.M., on the orders of D.I.-G. Police Karachi, a case under section 319, P.P.C. Was registered against Inspector Choudhry Nazir Ahmed and others. The contents of the said letter dated 18-1-2000 were incorporated in 154, Cr.P.C. Book which read as under:-- "The Senior Superintendent of Police District East Karachi. ' Subject: Registration of case under section 319, P.P.C. Against Inspector Ch. Nazeer Ahmed and others. ' I am directed to send herewith the papers of judicial inquiry conducted by Adnan Qadir Khan, Assistant Commissioner and S.D.M. Jamshed Quarter for the registration of case under section 319 (Q & D), P.P.C. Read with 34, P.P.C. Against Inspector Ch. Nazeer Ahmed, SI Fazil Khan, HC Tariq
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Mehmood and HC Shabbir Hussain for causing death of deceased Sikandar Ali through torture or criminal negligence at Police Station Jamshed Quarter. After registration of case thorough investigation should be conducted impartially and a Report under section 168, Cr.P.C. Be submitted for seeking legal opinion and guidance from respective PDS comments and submit a copy of the same to this office for perusal and record. Sd/- Muhammad Ashiq Hussain D.S.P. Legal" 3. After usual investigation the Appellants were sent up to face the charge. On 12-8-2000 a charge under section 319/34, P.P.C. Was framed to which the appellants pleaded not guilty and claimed trial. 4. To substantiate its case, prosecution examined following witnesses:-- (i) P.W.1 Mst. Khurshida Begum, (ii) P.W. 2 Muhammad Ali, (iii) P.W.3 Muhammad Aslam, (iv) P.W.4 Laiq Mian, (v) P.W.5 Adnan Qadir Khan, (vi) P.W. 6 Dr. Muhammad Munk, (vii) P.W. 7 Inspector Shahnawaz. (viii)P.W. 8 S.I. Muhammad Aslam ' Subsequently on the application of legal heirs of the deceased Sikandar, Ghulam Sarwar, Mst. Mehrunnisa and Abdul Karim were also examined as court witnesses. 5. Statements of the appellants under section 342, Cr.P.C. Were recorded in which they denied the allegations levelled against them and professed their innocence. 6. After hearing the learned counsel for the parties, the trial Court passed the judgment as stated above. 7. Messrs Mahmood A. Qureshi, Muhammad Akbar Khan and Naimat Ali Rindhawa, learned counsel for the appellants contended that the prosecution case is highly doubtful; none amongst the prosecution witnesses has claimed to be eye-witness of the alleged occurrence; the complainant Adnan Qadir also disowned the contents of the F.I.R.; P.Ws. 1 to 4 did not identify the appellants in court; the F.I.R. Was lodged in violation of provisions of section 154, Cr.P.C. As neither the signature of First Informant was obtained nor the contents of the same were read over to him. It is urged with vehemence that on the basis of judicial enquiry no one can be convicted. It is further contended that no sanctity can be attached to the judicial enquiry as neither the appellants were joined in the so-called enquiry nor their statements were recorded; First Enquiry Officer, Farhan Junejo, was not produced and examined in the trial court; during the enquiry or investigation not a single person amongst the members on duty at Police Station at the relevant time was examined. It is further contended that instead of original enquiry report, the Photostat copy of the enquiry report was submitted before the trial court but it was not claimed that the original report was lost or missing. Per learned counsel, the impugned judgment was passed without taking into consideration the important aspects of the case which emerged out from the cross-examination as the trial court has based the impugned judgment merely on the examination-in-chief of the prosecution . Witnesses and has totally ignored the glaring contradictions emerging from the cross- examination. It is lastly contended that P. Ws. Have made exaggerations and improvements with regard to the torture in order to fulfil the lacunas in the prosecution story. 8. Conversely, Mr. Muhammad Iqbal Awan, A.P.-G. Appearing for the State very candidly conceded to the contentions advanced by the learned counsel for the appellants and did not support the impugned judgment. 9. Heard learned counsel for the parties and perused the record. 10. Upon a perusal of the prosecution- case it appears that on 8-1-1998 some armed persons allegedly barged in House No,422-E of Patel Para, Jehangir Road, Karachi with intention to commit
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dacoity, however during the course of dacoity the inmates of the house offered resistance following which the culprits opened fire upon them, resultantly one Fazal Rabbi and Mst. Gul Naba, inmates of the house, received fire arm injuries. On commotion neighbourers came there who apprehended the culprits namely Ghulam Sarwar and Sikandar Ali on the spot. The culprits were beaten by the mohalla people and ultimately they were handed over to the police in injured condition. Thereafter a case bearing Crime No,5 of 1998 under sections 398 and 34, P.P.C. Was registered against them at Police Station Jamshed Quarters. Two separate cases under Arms Ordinance were also registered against Ghulam Sarwar and deceased Sikandar Ali. 11. The case of prosecution is that while -C.W. Ghulam Sarwar and deceased Sikandar Ali were in police custody, Sikandar Ali died as a result of torture at the hands of the appellants. 12. P.W.1 is mother and father of deceased Sikandar Ali. Her deposition reveals that on 8th January, 1998 her son deceased Sikandar Ali had gone to bring Paratha' at about 4-00 to 4-15 a.m. As it was the month of Ramadan but he did not return till the end of Sehri and subsequently her husband came to know that the deceased Sikandar Ali has been arrested by the police. Later on her husband went to P.W. Muhammad Aslam and appraised him about the above facts. Said Muhammad Aslam on the intervention of Mehmood Ali, the then Federal Minister went to police station and met with deceased Sikandar Ali. Thereafter he informed her that Sikandar Ali will come tomorrow and ultimately on the next day they received his dead body at 1-30 p.m. Her deposition reveals that neither she is an eye-witness of the occurrence nor she had any information with regard to the death of the deceased. In other words, her evidence is mere 'hearsay evidence'. In her cross-examination she admitted, It is correct to suggest that the accused was arrested in a dacoity case by the area Police". It is pertinent to mention here that in her deposition she did not state that her brother Muhammad Aslam informed her that the deceased Sikandar Ali informed him about any torture to him at the hands of the police. It is further evident that neither she narrated the story to any police officer, nor her statement under section 161, Cr.P.C. Or any other statement was recorded. 13. P.W.2 Muhammad Ali, father of deceased Sikandar Ali, in his evidence has also stated the same facts like P.W. Khursheed Begum. However, he further stated that on next day on receiving a phone call from police station he along with- P.W. Muhammad Aslam went to Civil Hospital and received the dead body of deceased Sikandar Ali. The dead body was not in a good condition, perhaps it was a case of maltreatment by the police. In his cross-examination while reply to a suggestion with regard to torture he admitted that he did not state to the police about torture on the deceased Sikandar Ali by the police. In reply to another suggestion, he contradicted his statement in chief in following words:- "It is correct to suggest that I did not inform the police that I received a telephone from police station, about collection of dead body of the deceased from Civil Hospital but it was informed to the S.D.M." ' He further admitted that deceased was arrested in a dacoity case by the police. However, he denied the suggestion that it was in his knowledge that deceased Sikandar Ali and Ghulam Sarwar entered in the house of Fazal Rabbi for committing dacoity and on the resistance of the said Fazal Rabbi, the deceased's companion Ghulam Sarwar started firing whereby said Fazal Rabbi and Gul Naba received bullet and dagger injuries at the hands of Ghulam Sarwar and Sikandar Ali. While replying to another suggesting, he stated that he did not know whether both the accused i,e, deceased Sikandar Ali and Ghulam Sarwar were caught by mohalla people and were beaten severely. He also did not deny that at the time of his arrest at the hands of Police, the deceased was in injured condition. ' In his cross-examination, he further admitted that he cannot say whether the deceased Sikandar was beaten by the mohallah people and handed over to the police. However, from the perusal of
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his deposition it appears that he did not identify the appellants who present in the trial Court. With regard to torture upon the deceased Sikandar Ali at the hands of the police he did not state a single word which prima facie shows that the deceased Sikandar Ali was beaten or tortured by the appellants and he also did not deny that deceased Sikandar Ali was beaten by the mohalla people and handed over to the police but he merely stated that, "I cannot say whether the deceased was beaten by mohalla people and handed over to the police." 14. P.W.3 Muhammad Aslam in his examination-in-chief stated that on 8-1-1998 his sister and brother came to his house and informed that Sikandar Ali had gone to bring Paratha' from the 'bazar' but did not come back and further informed that he was arrested by the police. His deposition further reveals that he along with Muhammad Laiq Mian and Ali Nazim went to the police station to see deceased Sikandar Ali but could not succeed, however on the intervention of the then Federal Minister Mr. Mehmood Ali, they approached the S.H.O. And met deceased Sikandar Ali who was in normal condition, however he showed his apprehension of torture. However, on the next day they received a telephonic call from Police Station with direction to receive the dead body of deceased Sikandar Ali from Civil Hospital. They saw the marks of torture on the deadbody and blood wis oozing from his neck. ' In his cross-examination he admitted that his 161, Cr.P.C. Statement was recorded after about 8/9 months from the incident.. While replying to a suggestion, he admitted that, "It is correct to suggest that I did not inform the police about the complaint of torture made by the police." While replying to another suggestion, he admitted in the following words:-- "It is correct to suggest that I did not state before the police in my statement under section 161, Cr.P.C. That when I reached at the hospital I saw the mark of torturing on the body of Sikandar deceased and survival cot was also broken and blood was oozing from his neck." ' He further admitted that he did not know whether the deceased Sikandar Ali along with Ghulam Sarwar was apprehended by mohallah people who gave them severe beatings. He showed his ignorance to the fact that the deceased Sikandar Ali and Ghulam Sarwar were injured due to beatings of mohallah people and were arrested by the police. 15. Deposition of P.W.4 Lack Mina reveals that on 8-1-1998 Muhammad Aslam came to him at about 7-45 a.m. And informed him that deceased Sikandar Ali has been arrested by the police and requested him to accompany him to police station. Thereafter they went to the police station and enquired about -the S.H.O. Who was present at that time. ' He further stated that later on they approached Muhammad Ilyas who made contact with Mr. Muhammad Ali, the then Federal Minister and on his intervention they went to police and met deceased Sikandar Ali who was in normal condition. However, he apprehended that he might be tortured by the police. Ultimately, on 9-1-1998 he received telephonic message from the house of the deceased with regard to his death. ' In his cross-examination he stated that police recorded his statement under section 161 Cr.P.C. After one month from the date of the incident. While replying to a suggestion, he gave admission in the following words:-- "It is correct to suggest that when we went to the police station on 8-1-1998 we were informed by the police that the deceased Sikandar Ali is arrested in a case of dacoity and Arms." However, he also failed to identify the appellants who were present in the trial Court. 16. P.W.5 Adnan Qadir Khan, the then S.D.M., who conducted the judicial enquiry is an important prosecution witness. His deposition reveals that on 27-1-1998 he was posted as Judicial Magistrate, Jamshed Quarters, Karachi East. This incident took place before his posting and the then S.D.M. Jamshed Quarters Mr.Farhan Junejo conducting the enquiry proceedings under section 176, Cr.P.C. Which was subsequently entrusted to him. He recorded the statements of some witnesses and some statements were already recorded by earlier Enquiry Officer and after completion of the
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enquiry, findings were given by him and the enquiry report was sent to Home Department, Government of Sindh. He further deposed that he arrived at the conclusion that the police appeared to be responsible for the death of Sikandar Ali either through torture applied while the deceased was in police custody or through criminal negligence. The police officials namely Inspector Choudhry Nazeer Ahmed, the then S.H.O. Of Police Station Jamshed Quarters, S.I. Fazil Khan, I.O. Case which was registered against the deceased, HC Tariq, HC Shabbir and HC Hameed are responsible for the death of the deceased Sikandar Ali. Moreover, the M.L.O. Dr. Nawaz and Dr. Munir Pitafi who conducted the postmortem of the deceased are also guilty of gross negligence. ' Though during his deposition the learned counsel for the appellants seriously raised objections with regard to the opinion of the learned S.D.M. Given in his judicial enquiry, however the trial Court observed that such objections will be decided at the time of judgment. The above P.W. In his cross- examination has admitted that police did not record his statement under section 154, Cr.P.C. Nor he himself sent his statement to the police station. While replying to a suggestion, he admitted that, "It is a fact that I am not the complainant/first informant of this case." He further admitted that he did not remember that when the enquiry was entrusted to me." He further admitted that no notification or any order was issued by any authority whereby enquiry was entrusted to him. He further admitted that Exh.12-A i,e, the Enquiry Report is a Photostat copy whereas its original would be lying in the Home Department. He also admitted that he did not serve any notice upon public or given any process in the newspaper regarding the said incident. While replying to another suggestion, he admitted in the following words:-- "It is correct to suggest that deceased Sikandar Ali was already arrested in F.I.R. No,5 of 1998, under sections 394, 398, 34, P.P.C. By the Police of Jamshed Quarters. It is correct to suggest that the complainant of F.I.R. No,5 of 1998 was lodged by Idrees. It is a fact that the deceased Sikandar and Ghulam Sarwar were entered into the house of one Fazal Rabbi duly armed with deadly weapons i,e, pistol and dagger and caused injury to Gul Nibah and Fazal-e-Rabbi, in which both the dacoits were beaten by Mohalla people at spot and thereafter they were handed over to police with weapons. Thereafter police brought the deceased to hospital, where he was examined and MLO reported two minor head injuries along with the other, vide MLO No,110 of 1998 dated 8th January, 1998 which is annexed with the judicial enquiry report." ' In his cross-examination he further stated:-- "I have mentioned in my enquiry report vide Exh.12/A on the Page. No,2 that 'The fact that there was a dacoity, committed by anyone, in which Fazal and his mother were injured is not denied by anyone, (ii) No reasonable explanation has been offered by anyone as to who other than the accused had committed the said dacoity; (iii) Both the accused are identified by Fazl and by a large number of residents of the mohalla as the ones who were apprehended while committing the said dacoity, (iv) There is no evidence of any altercation that night between two groups of Pathans, as claimed by the co-accused (v) There is no paratha shop in the vicinity of Fazl's house where the accused could possibly have gone for eating parathas." ' He also admitted that he was informed by the public just after the incident of F.I.R. No,5 of 1998 the police of the area reached there. He also admitted did not enquire about the strength of police but he saw the entries in the Roznamcha of the said Police Station. He further admitted that he did not summon the witnesses/police official of that incident,- for recording their statements in enquiry, therefore the statements could not be recorded. He further admitted that he had recorded the statements of M.L.O. Dr. Capt. Nawaz Ali and Dr. Muhammad Munir Pitafi but the said statements were not produced in the court nor it is mentioned in the enquiry report. While replying to a suggestion he denied that suppressed the facts and reports of M.L.O. Regarding the injuries of the deceased. However, he admitted that he did not mention in the enquiry report that how many police officials were on duty in between the 7th and 8th January, 1998 and their names were also
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not mentioned in it. He further admitted that he did not record the statements of anyone of the police officials performing their duties during the night of 7/8th January, 1998. He further admitted that he did not record the statement of any of the police officials who performed their duties during the night of 7/8th January, 1998. While replying to another question he said that he did not remember whether the accused persons namely Tariq, Shabbir and Hameed performed their duties at Police Station or at Islamia College and Dawood Engineering College. He further admitted that he did not go through the entries of Roznamcha of P.S. Jamshed Quarters pertaining to 7th, 8th and 9th January, 1998. He also admitted that he did not record statements mohallah people of Crime No,5 of 1998. He also admitted that he recorded statements' of Gul Nibah, Fazal Rabbi and Idrees during the course of the enquiry but did not produce the same in court. He also admitted that F.I.R. Was recorded, after two years from the incident, in his absence. He denied that he has partially conducted the enquiry on public pressure. While re 1 in to another suggestion he stated that during the course of enuiry none re ported about the torture b the accused Fazil to the deceased Sikandar Ali. ' Upon a bare perusal of his deposition, it appears that there are important admissions by this .Witness to the effect that deceased Sikandar Ali and Ghulam Sarwar entered into the house of one Fazal Rabbi duly armed with weapons and caused injuries to Gul Nibah and Fazal Rabbi and that both of them were caught by mohalla people on the spot who after beating handed over them to the police with weapons. It also appears that deceased was brought to Civil Hospital where he was examined and MLO reported two minor head injuries along with others, vide MLO No,110 of 1998 dated 8th January, 1998. Even there is admission that a dacoity committed by someone in which Fazle Rabbi and his mother were injured and that fact has not been denied by anyone and no reasonable explanation was offered that anyone else except accused (deceased Sikandar Ali and Ghulam Sarwar) committed the said. Dacoity. Both the accused were identified by Fazal Rabbi and a large number of residents of mohalla as culprits who were apprehended while committing said dacoity. There is also an important aspect of the case that in his evident he has admitted that there is no Paratha shop in the vicinity of Fazal Rabbi's house where the accused could possibly have gone for eating paratha. ' Apart from these admissions, he also admitted that he did not record statements of the police officials who performed their duties during the night of 7th and 8th January, 1998 and he did not remember that whether the accused Tariq Shabbir and Hameed performed their duties at Police Station or at Islamic College or Dawood Engineering College. It also reflects that S.D.M. Who conducted the enquiry did not verify the daily diaries of the concerned police station pertaining to 7th, 8th and 9th January, 1998. There is also admission that though the statements of Gul Niba, Fazal Rabbi and Idrees during the course of enquiry but the same were not produced. 17. Deposition of P.W.6 Dr. Muhammad Munir reveals that on 9-1-1998 he was posted as MLO at Civil Hospital Karachi. He received dead body of deceased Sikandar Ali son of Muhammad Ali through S.H.O. Police Station Jamshed Quarters Choudhry Nazir Ahmed for postmortem. Since the deceased died while in the custody of police, he called the then S.D.M. Farhan Junajo and in his presence he started the postmortem of the dead body and found following injuries on the body:-- (1) Lacerated sealed wound 3 cm in length on the right side of forehead with defuse swelling around it. (2) Abraded contusion 2 cm x 1 cm with defuse swelling over the vertex of scull. (3) Abraded contusion 2 x 1 cm with defuse swelling at, the left Mastoid region, behind left ear. (4) Abrasion 1 x 1 cm below right clavicle on the chest. (5) Abrasion dark colour 3 cm x 1 cm on the middle of left leg interiority. (6) Abrasion 1 cm x1 cm on the lower part of left leg interiorly. (7) Abrasion 1 cm x 1 cm on the dorsal the aspect of the foot.
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After completion of the postmortem samples from the body were obtained for chemical and histopathological examination and handed over to Investigating Officer. However, cause of death was reserved for opined that probable cause of death was cardio-respiratory failure due to acute head injury caused by hard and bluntsubstance ' In his cross-examination he admitted that the incident took place on 9-1-1998 whereas F.I.R. Was lodged after two years. He further admitted that he did not record the statement of S.D.M. Adnan Qadir Khan under section 154, Cr.P.C. He further admitted that there is no signature of Adrian Qadir Khan on the said. While replying to a suggestion, he admitted that he did not record statement of any of the witnesses. He further admitted that it came in evidence that Ghulam Sarwar and deceased Sikandar Ali were dangerous criminals. The legal heirs of deceased Sikandar Ali lodged this case in order to conceal their crime. He further admitted that present case is the outcome of F.I.R. No,5 of 1998 under sections 394/398/34, P.P.C. Registered at Police Station Jamshed, Quarters against Ghulam Sarwar and deceased Sikandar Ali. He also admitted that Ghulam Sarwar and deceased Sikandar Ali entered into the house of Gul Naba and Fazl-e-Rabbi where deceased Sikandar Ali and Ghulam Sarwar caused injury to the witnesses and they were arrested by the mohalla people at the spot. With regard to the injuries to the deceased he admitted that mohalla people gave beatings to them. There is also admission to the effect that accused Shabbir Hussain, Tariq Mehmood and Abdul Majeed were not on duty during the night of 7, 8 and 9th January, 1998 at the Police Station. While replying to an important suggestion, he admitted that, "it is a fact that I had mentioned in the challan sheet that there was no evidence against the accused persons". He further admitted that the case was registered on the orders of higher authorities. 19. Abdul Karim was examined as C.W.1. His deposition reveals that on the day and time of incident he was available at…
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