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Petitioner: MUHAMMAD SHAHID HANIF and others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Rehmat Hussain Jaffery, Muhammad Afzal Soomro Title: MUHAMMAD SHAHID HANIF and others vs THE STATE Case No.:Special Anti-Terrorism Appeals Nos.39 to 42, 28 of 2002 and Confirmation
JUDGMENT
Reported As: 2006 MLD 834 Result: Order accordingly Judgment JUDGMENT ' RAHMAT HUSSAIN JAFFERI, J---This judgment will dispose Spl. Anti-Terrorism Appeals Nos.39 to 42 of 2002, 28 of 2002 and Confirmation Case No,2 of 2002 as they arise out of a common judgment. 2. The present appeals have been directed against the judgment dated 15-4-2002 passed by the learned Judge Anti-Terrorism Court No,III, Karachi in Special Case No,205/2001 arising out of Crime No,57/2001 for offences punishable under sections 302, 34 P.P.C., read with section 7 (a) of Anti- Terrorism Act, 1997 of Police Station Gul Bahar; Special Cases Nos.242 to 244 of 2001, F,I,R.s Nos.85,84 and 83 of 2001 Tor offences punishable under section 7 (1) (c) of Illicit Arms Ordinance, 1965 read with section 13(d) of Pakistan Arms Ordiannce, 1965 by which the learned Judge convicted and sentenced the appellants. The operative part of the judgment reads as under:-- "(1) Convict the accused Muhammad Talha Hussain alias Noman son of Ishrat Hussain and accused Khalil Ahmed alias Hassan Jan son of Nawabuddin under section 302(a), 34, P.P.C. Read with section 6(1)(c), 6(2)(a) and section 7 (a) of A.T.A. 1997 and sentence them to death sentence. They shall be hanged by neck till their death. The sentence of death shall not be executed unless confirmed by the Hon'ble High Court in view of section 374, Cr.P.C. An amount of Rs,1,75,000 is also imposed on each of them being diyat, which should be paid to the legal heirs of the deceased. (2) Convict the accused Muhammad Shahid Hanif alias Mufti Shahid son of Qazi Muhammad Hanif under section 302(a)/34, P.P.C. Read with section 6(1)(c), 6(2)(a) and section 7(a) of A.T.A. 1997 and sentenced him to suffer life imprisonment. An amount of Rs,1,75,000 is also imposed on him being Diyat, which should be paid to the legal heirs of the deceased.
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(3) Convict all the accused under section 13-D of Arms Ordinance 1965 and sentence them to suffer 7 years' R.I. And a fine of ' Rs,50,000 each. In case of default in payment of fine, they shall suffer further R.I. For one year each. They shall be entitled to the benefit of section 382-B, Cr.P.C." 3. Brief facts of the prosecution case are that deceased Syed Zafar Hussain Shah was serving as Director Laboratory, Ministry of Defence. On 30-7-2001, at about 7-40 a.m. The deceased left his house to go to office in his official Suzuki FX Car which was being driven by P.W.4 Syed Safdar Shah. After 2 or 3 minutes of leaving the house, the complainant P.W.1 Mst. Nasreen, wife of deceased, heard fire-arm reports, therefore, she ran towards the main gate of her house. In the meantime, driver P.W.4 Safdar Shah came running and informed the complainant that the deceased was attacked who had received fire-arm injuries. P.W.2 Sayed Murtaza Hussain, son of the deceased, already reached there. Then they went towards the car which was parked near the house in which the deceased was lying on the rear seat of the car in injured condition. The deceased was taken to Abbasi Shaheed Hospital in the same car where the doctor pronounced him dead. Such intimation was sent to the police. Thereafter, the police arrived in the hospital. The P.W.6 SIP Muhammad Ameer also reached the Abbasi Shaheed Hospital where he completed the formalities. 4. P.W.8 Muhammad Arif Khan, the S.H.O. Police Station Gul Bahar, also arrived in the hospital who tried to record the statement of the complainant but she was not in her full senses. P.W.8, along with P.W.4 driver Sayed Safdar Shah, went to the place of the incident where they found three empty cartridges lying there, which were secured and sealed by the police. Thereafter the S.H.O. Returned to the hospital where at about 12 noon he recorded the statement of complainant, which was sent to police station to incorporate it in 154, Cr.P.C. Book for registration of case. The car was parked in the hospital. The S.H.O. Found blood lying on the rear seat and foot mat of the car. The blood was secured. He recorded the statements of witnesses. On 31-7-2001, P.W.8 was transferred. On 28-9-2001 P.W.11, SIP Saeed Ahmed Rind arrested the appellants near Delhi Pakwan House, Rahman Market, Nazimabad-I, Karachi. One Kalashnikov was secured from the possession of appellant Mufti Muhammad Shahid, TT Pistols were secured from the possession of appellants Muhammad Talha Hussain and Khalil Ahmed. The articles were sealed in presence of two private witnesses namely Majid Gul and Akram. The accused were brought to the police station where the SIP registered the F.I.Rs, Nos.83, 84 and 85 of 2001 against the appellants for offence punishable under section 13(d), Pakistan Arms Ordinance, 1965. On 29-9-2001, P.W.13 S.H.O. Who received the investigation papers made formal arrest of the appellants as they were arrested in the cases of offence punishable under section 13 (d), Pakistan Arms Ordinance, 1965. On 2-10-2001, the appellants were produced before the Magistrate for holding identification test through P.W. Sayed Safdar Shah who identified the appellants to be the culprits of the crime. The appellants were involved in other cases, therefore, the S.H.O. Of Police Station Gul Bahar brought the appellants to Judicial Magistrate for recording their judicial confessions where their confessions were recorded in which they confessed the guilt of the present case. The P.W.13 sent the crime empties to the Ballistic Expert for examination and report as the arms secured from the possession of appellants were already sent to Ballistic Expert. The report shows that the crime empties matched with the pistol secured from the possession of appellant Muhammad Talha. 5. After completing usual investigation, the appellants were challaned before the administrative Judge of Anti-Terrorism Courts Karachi in F.I.R. No,57 of 2001 of Police Station Gul Bahar of this incident whereas the appellants were challaned before the Magistrate for offences punishable under section 13(d), Pakistan Arms Ordinance, 1965. The case pertaining to F.I.R. No,57 of 2001 was assigned to the Anti-Terrorism Court No,III. The Magistrate sent the cases of abovementioned three F.I.Rs, of offence punishable under section 13(d), Pakistan Arms Ordinance to the Anti-Terrorism Court No,III. With the consent of the Prosecution and defence counsel all the cases were
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consolidated with each other and case pertaining to F.I.R. No,57 of 2001 was made the leading case in which the evidence was recorded. The learned trial Judge also found that the Magistrate had framed the charge in the cases, therefore, he started the proceedings from the stage of recording the evidence as per order dated 21-2-2002, appearing at page No,26 of the paper book. 6. On the same date the trial Court framed the charge against the appellants. In support of the case the prosecution examined 13 witnesses. The appellants in their statements recorded under section 342, Cr.P.C. Denied all the allegations of the prosecution. The appellant Muhammad Shahid Hanif in his further statement stated as under:-- "I am Pesh Imam of mosque situated at Malir City, I belong from Fiqah Hanfia and is follower of Dev Bandi Maslak. I have given statement and prayer for all the parties and alliances who belong from Dev Bandi Maslak and also pray for them, who belong from Dev Bandi Maslak and also pray for them. I am not worker of any Tanzeem of Sipah-e-Sahaba including Lashkar-eJhangvi. I am innocent and have been implicated falsely. Presently the Government is taking action against the religious parties and Madaris and oftenly the leaders of religious parties and Madaris are behind the bar and I have been arrested because of the said Anti-Muslim Policies of Government in Juma congregations and on every available stage therefore, the Government is against me. I was called from my house and when I came out I was blind-folded and took in the mobile van and was brought at police station to admit the murder of case of Shokat Hussain of PSO who was already killed because of sectarian violence. I was severally tortured by the police during the course of my confinement with them. My two teeth were also broken in custody because of torture of police. I was also shown the vicinity where, I was kept by the police after my arrest which was an isolated type of Jungle and I was threatened by police either to admit the guilt of the present case including murder case of Shokat Hussain or prepare to die because according to them I had no alternate to accept anyone of their conditions thereafter they had obtained my signatures on blank papers on 28-9-2001. I am innocent and have been implicated falsely." 6. The appellants did not examine themselves on oath or lead any evidence in their defence. 7. The learned trial Judge after considering the material available on the record and hearing the parties counsel convicted and sentenced the appellants, as mentioned above under the impugned judgment. The appellants were dissatisfied with the said judgment, therefore, they have preferred the present appeals. The State was also dissatisfied with the sentence, passed against appellant Muhammad Shahid Hanif, therefore, they also filed Appeal No,28 of 2002 for enhancement of sentence. The learned trial Judge has sent the reference under section 374, Cr.P.C. For confirmation of death sentence. 8. We have heard the Advocates for the appellants, A.A.-G. For the State and perused the record of this case very carefully. 9. The learned Advocates for the appellants have stated that the prosecution has relied upon four pieces of evidence (1) Ocular testimony,(2) identification test, (3) Confession, and; (4) Recoveries. They have stated that the ocular testimony consists of one witness viz. P.W.4 drivers Sayed Safdar Shah who was not present at the scene of the incident or saw the incident, because, he had not received any injury and the culprits who were allegedly terrorists would have not left the driver to identify them subsequently and that the evidence of sole witness is not enough to convict the appellants unless he is a truthful witness as held in Gulistan v. State (1995 SCM R 1789). They have further stated that the evidence is full of infirmities and discrepancies which is not supported and corroborated by other pieces of evidence; that the statement of the P.W.4 was recorded after delay of 10 hours without any explanation though he was with police throughout the period which creates doubt in his evidence. As regards the identification test, they have stated that the Magistrate had not changed the dummies, as in all identification test, the dummies were same, but only the accused persons were changed, therefore, such identification test carries no weight. They have
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relied upon the case of Taha v. State (2003 YLR 166). As regards Confessions they have stated that the appellants were arrested on 30-9-2001; that their confessions were recorded on 10-10-2001 as such there is delay of 10 days in recording the confessions which has affected the truthfulness of the confessions; that the confessions were recorded after Court hours and the custody was handed over to DSP; that the Magistrate did not mention in the remand order that their confessions were recorded, which violates the rules of Federal Capital and Sindh Courts Criminal Circulars, therefore, the confessions carry no weight. As regards the recoveries, they have stated that only pistol of appellant Muhammad Talha Hussain, matched with the crime empties, whereas the weapons of other appellants did not match with the crime empties, hence, they cannot be relied upon. They have further stated that the charge was defective, as such, the trial has vitiated. They have relied upon Dur Muhammad v. State (1994 M LD 1493). 10. Conversely the learned A.A.-G. Has stated that the defect in the charge is curable under section 535, Cr.P.C. As regards the ocular testimony, he has stated that it is quality and not quantity which can determine the fate of the case; that the sole eye-witness has fully supported the prosecution case and implicated the appellants in the commission of the crime; that there are no infirmities in the evidence of P.W.4 and the infirmities pointed out by the learned Advocates for the appellants are minor in nature which are in respect of the facts after commission of the crime, therefore, the same have not affected the evidentiary value of the witness. As regards the identification test, he has stated that in all the three identification tests, the dummies were changed, as clear from the evidence of P.W.4 and P.W.7; that in the cross-examination the P.W.7 admitted that she had arranged 10 dummies in each identification parade; that the appellants were correctly identified by P.W.4 who had assigned them the role which they had played at the time of incident. As regards the confessions, he has stated that the Magistrate (P.W.12) had performed all the legal formalities and then recorded their confessions; that the confessions are voluntary and true, which have been supported and corroborated by other pieces of evidence available on the record and that the confessions are sufficient to convict the appellants. As regards the recovery, he has stated that the appellants were arrested; that Kalashnikovs and pistols were recovered from their possession; that three crime empty bullets were secured from the place of incident; that the said bullets matched with the pistol secured from the possession of appellant Muhammad Talha Hussain, therefore, the prosecution has proved the recoveries, only, against the appellant Muhammad Talha Hussain; and that the above circumstance supports the confessions in which it has been stated that pistol of appellant Talha was used as the pistol of appellant Khalil was jammed, whereas appellant Muhammad Shahid had not used the pistol. He has supported the impugned judgment and further added that the sentence of appellant Muhammad Shahid Hanif may be enhanced, as the offence would fall under the then section 7(a)(i) of Anti-Terrorism Act, 1997, because, the offence was committed on 30-7-2001 and the sentence provided thereunder is only death. 11. We have given due consideration to the arguments, gone through the evidence with the help of learned Advocates for the appellants and found that the prosecution case rests upon four pieces of evidence; (1) Ocular testimony, (2) Identification test, (3) Confessions, and; (4) Recoveries. 12. First of all, we will deal with the ocular testimony, which consists of P.W.4 Sayed Safdar Shah. His evidence reveals that he was serving as driver in the Ministry of Defence for the last 16 years.The deceased was Director Laboratory, Ministry of Science and Technology Organization, Karachi. He used to drive his official Suzuki FX Car, bearing Registration No,GP-3427. On 3-7-2001, at about 7-45 a.m., he went to the residence of the deceased, situated in Nazimabad No,2, to take him to the office. After parking the car, he went to the house of the deceased and informed him about his arrival. Thereafter, the deceased came and occupied the rear seat on the left side of the car. He started the car and covered few paces, when two persons came in front of the car. They came towards the side, where the deceased was sitting and started firing on the deceased. Thereafter,
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they both crossed the car. Their another companion came on a scooter/motorcycle in front of his car. Thereafter both the culprits sat on the motorcycle on the rear seat and went away from there. After the departure of the culprits, he rushed to the house of the deceased and informed the matter to the wife of the deceased. Thereafter, the wife P.W.1 and son P.W.2 of the deceased came with him. They took the deceased to Abbasi Shaheed Hospital in the same car. He remained present near the side of the car, whereas the wife and son of the deceased took the deceased to Emergency Ward. Thereafter, the police arrived in the hospital. 13. He further stated that fire-arm shots were fired from the left side of the car where the deceased was sitting. The seat of the injuries on the person of the deceased shows that the deceased had received one injury on the forehead, two fire-arm injuries on the right side of the chest, one injury on the right forearm and a lacerated injury on the right eyeball. This clearly indicates that when the deceased saw somebody coming from his left side, he must had turned himself to see the said persons, therefore, his right side and front side were exposed to the persons who were standing on the left side of the door of the car. In such a position, the deceased had received one injury on the forehead; two injuries on the right chest; one injury on the right forearm and one injury on the right eyeball. Thus his statement is fully supported and corroborated by the medical evidence. His statement is further supported from the fact that the car had a bullet hole on the rear right door. The bullet had entered from inside the car and came out from outside the car, as clear from the Expert report, Exh.P.72. The Investigating Officer also found the said marks on the car. The said marks must have been caused when the bullet was fired from the left window, entering from the inner side of the right door of the car and coming out from the said door from its outer side. As such the circumstantial evidence also supports and corroborates the ocular testimony of P.W.4. 14. The evidence of P.W.4 is further supported and corroborated by P.Ws.1 and 2 viz. Complainant Nasreen Zafar, wife of deceased and Murtaza Hussain, son of the deceased. Their evidence reveals that on the date of the incident at about 7-45 a.m. They were present in the house. The deceased left the house to go to office in his official Suzuki FX Car, which was being driven by P.W.4. After some time, they heard fire-arm reports, therefore, they rushed towards the main gate. In the meantime, P.W.4 also reached the house and informed them about the incident. Thereafter, they went to the car, where they found the deceased lying injured on the rear seat of the car. They took the injured in the same car to hospital where the doctor informed them that the deceased had died. From the above evidence it is clear that the presence of the P.W.4 at the scene of incident has been established from the evidence of P.Ws.1 and 2. The presence of the deceased on the rear seat of the car further establishes that the driver P.W.4 was present; otherwise, there was no occasion for the deceased to have sat on the rear seat of the car. Thus, there is no doubt with regard to the presence of P.W.4, at the place of incident. He categorically stated that two persons came, who fired at the deceased and then their third companion came on a motorcycle. Thereafter, they left the scene of the incident. From the evidence, it is clear that the culprits were unknown to the P.W.4. The P.W.4 was a natural and independent witness whose presence at the scene of the incident cannot be doubted in the circumstances of the present case. Thus the prosecution has proved the ocular testimony. 15. The learned Advocates for the appellants have attacked the evidence of P.W.4 on the ,ground that his statement was recorded after 8 hours and such delay has not been explained, therefore, it casts doubt upon his evidence. It is pertinent to point out that his presence at the scene of incident has been established from the evidence of P.Ws.1 and 2. His name appears in the F.I.R. As a witness. He was with the police showing the place of incident and other places and then his statement was recorded at about 11-00 p.m. As per statement of Investigating Officer. Whereas P.W.4 stated that his statement was recorded at 1-00 p.m. However, this discrepancy in the evidence is minor in nature which cannot affect the veracity of this witness whose evidence is supported and
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corroborated by other pieces of evidence. He is a natural witness. His presence at the scene of incident cannot be doubted. He has no motive or cause to falsely implicate the appellants in this heinuous crime. There is no enmity between the P.W.4 and appellants nor any enmity has been suggested against him. Therefore, mere delay of few hours in recording the evidence per se is not fatal to his evidence. Reliance is placed in the case of Hamid Javed v. State (PLD 1988 SCM R 39). 16. As regards the identification test, the prosecution examined P.W.7, Mrs. Fazana Mushtaq, Judicial Magistrate. Her evidence reveals that on 2-10-2001 at 9-30 a.m. P.W.4 Safdar Shah attended her Court and she made him sit in a room of Bailiff Branch, situated adjacent to her Court. Thereafter, the appellants were produced with muffled faces. Their handcuffs were removed. Then she arranged 10 dummies of similar height, feature and nature of the accused through staff of the Court. First the identification test of Muhammad Shahid Hanif was conducted through P.W. Safdar Shah who identified the appellant. Then the identification test of accused Talha was conducted. He was also mixed up with 10 dummies. The P.W.4 also identified him. Thereafter the appellant Khalil Ahmed was called. He was also mixed up with dummies to whom the P.W.4 also identified. P.W.4 in his statement stated that on 2-10-2001, he had gone to the Court of Judicial Magistrate-VIII Karachi, Central. He was produced before the Magistrate, who after satisfying his identification, asked him to sit at the back of the Court room. At about 9-45 a.m., he was called inside the Court Room, where he saw 12/13 persons standing in a row and the lady Magistrate asked him to identify the accused, to which he identified one accused person. Thereafter, he was sent back. Again, he was called. He identified one accused person from 12/13 dummies. Then, he was again sent out of the Court. After 10 or 15 minutes, he was again called and he identified the third accused from the dummies. He further stated that in all the three identification tests, he identified different accused amongst the dummies. He further stated that appellant Shahid was on the scooter/motorcycle and the remaining two accused persons had opened fire-arm shots at the deceased. 17. In the cross-examination, P.W.4 further stated that the accused who was having beard was mixed up with the dummies who were with beard and the other accused who were without beard, were mixed with the dummies with no beard. From the above statement, it is clear that the dummies were different in all the three identification tests. P.W.7 Judicial Magistrate also stated in the cross-examination that she had arranged 10 dummies in each identification parade in toto. If this statement is read along with the statement of P.W.4, then there is no hesitation in holding that the dummies in each identification test were different. However, the learned Advocates for the appellants have interpreted, the word "toto", as total dummies 10 in all the identification tests and the accused were mixed-up with the said dummies. The relevant portion of the statement of the Magistrate reads as under:-- "I then arranged 10 dummies in each identification test in toto". 18. The word "each" mentioned in the above sentence, clearly indicates that 10 dummies were in each identification parade. The word "toto", does not mean that in all there were 10 dummies for all the three identification tests. As already observed that this point has been clarified by the P.W.4 who categorically stated that the accused who was with beard was mixed up with the dummies who were with beard and the other accused were mixed up with the dummies who were without beard. It clearly demonstrates that the dummies were different in each test, therefore, the alleged confusion created in the evidence of the Magistrate has been clarified by P.W.4. As such, there is no, illegality in the identification tests. P.W.4 has assigned the role to each appellant in his statement recorded in the Court. Therefore, such role fulfils the requirements of law as held in the case of Solat Ali Khan v. State (PLD 2002 SCM R 820). 19. Now we will deal with the confessions. In order to prove the confessions of the appellants, the prosecution examined P. W.12, Judicial Magistrate, S.M. Naqi. He stated that on 10-10-2001, the appellants were produced before him for recording judicial confessions. He gave all the warnings
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to the accused separately and specifically informed them that they were not required to make confessions, and; in case they gave confessions, the same would be used against them as evidence; that they would be remanded to judicial custody if they made confessions or otherwise. All…
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