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Petitioner: MUHAMMAD AAMIR and others VS Respondent: THE STATE
Court Name: Sindh High Court Judge(s): Ghulam Rabbani Title: MUHAMMAD AAMIR and others vs THE STATE Case No.: Criminal Appeals Nos, 236, 239 and 251 of 1992 Date of Judgment:2002-02-04 Reported As: 2002 YLR 2376 Result: Appeal dismissed
JUDGMENT
JUDGMENT By way of three separate Appeals bearing Nos,236, 239 and 251 of 1992, the appellants have challenged the judgment dated 17-10-1992 passed by learned Judge, Special Court H, STA, Karachi whereby, they have been convicted under sections 302 and 324 read with section 34, P.P.C. and sentenced to death each by way of Ta'zir under section 302/34, P.P.C. and five years R.I. to each of them under section 324/34, P.P.C. with fine of Rs,5,000 each or in default in payment thereof to undergo further R.I. for six months each. Above appeals were heard by a Bench comprising of my learned brothers Wahid Bux Brohi and S.A. Rabbani, JJ. who have written separate judgments and have differed with each other, Wahid Bux Brohi, J., has maintained the judgment of trial Court, whereas S.A. Rabbani, J., has acquitted the appellants of all the charges. Honourable Chief Justice has appointed me as Third/Referee Judge. Accordingly the matter is being disposed of by this Judgment as follows. In nutshell, the prosecution story is that the incident took place on 31-5-1991 at about 8-30 p.m. near House N9.21404 Jhanda Chowk, Liaquatabad, Karachi in which the appellants Arshad Pandey, Sarfraz, Aamir, Noman and other assailants arrived at spot on motorcycles and opened fires on a Bus which was to carry a marriage party on the occasion of "Going Away" (Rukhsati) of sister of complainant, after her marriage. Five persons namely Mehboob, Sayed Zulfiqar Ali, Mst. Sharifan, Mustaqeem and baby Saira were wounded, 'succumbed to their injuries, and 10 other persons namely P.Ws. Anwar, Naseem, Muhammad Faisal and others namely Abdul Salam, Safdar, Mst. Sarnina, Mst. Hajira, Mst. Nasima, Mst. Rahila and Mst. Rabia were rendered injured. Details of the incident have been elaborately stated by my learned brother Wahid Bux Brohi, J., in his judgment and it is needless to repeat the same.
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It will be pertinent to note that initially, trial commenced before Mr. Justice Abdul Rehman (as then he was) Presiding Special Court (for Speedy Trial) who recorded evidence of almost all the witnesses but, subsequently: The case was sent to learned Judge, Special Court No,II, STA, Karachi, who conducted fresh trial of the appellant. Charge framed against the accused/appellants under sections 302, 324, 148 and 149,P.P.C. was read over to them, to which they pleaded not guilty. At trial prosecution examined 22 witnesses namely P.Ws. Nayyar Khan Muhammad Shafiq (Complainant) Muhammad Faisal, Muhammad Anwar, Rashid Zaheer, SIP, Abdul Razzaque, Naseem Ahmad, Dr. Muhammad Aslam, Muhammad Hussain, Slaeem, Muhammad Zahid Mehtab, Badaruddin, Dr. Ali Bux, S.H.O. Aslam Noor Khan, Rashid Jamal, Muhammad Wahid, Saleem Asif, Iftikhar Ahmed, Muhammad Shahid, SIP, Ahmed Hassan, and S.H.O. Muhammad Naseeruddin. Besides S.H.O. Sultan Mansoor Kiyani, H.C. and Ali Gohar were examined as court-witness Statements of appellants were recorded under section 342, Cr.P.C. whereafter, except appellant Aamir the other appellants examined themselves on the oath under section 340(2), Cr.P.C. The impugned; judgment was passed and the appellants were convicted and sentenced as above. Precisely, the reasons which found favour with my learned brother Wahid Bux Brohi, J. for giving credence to the testimony of the complainant, are that the complainant was present at the time when the marriage party was boarding the bus and he had seen the culprits, his statement under section 154, Cr.P.C. was recorded by the S.H.O. Alam Noor Khan on the spot within few minutes of the occurrence, his evidence is in line with his statement under section 154, Cr.P.C.; in that the complainant has narrated almost all the ambient circumstances except with difference that he has not described the name of appellant Naushad in the said statement but, at the trial, he has stated his name, explaining that he knew the culprits because they had been visiting their Muhallah previously and they were residents of Liaquatabad and that nothing has been elicited from the complainant to give slightest indication that he, motivated by circumstances, would exoperate the real culprits who killed as many as 5 persons of the marriage party, and injured 10 others; and would involve the appellants disclosing their names within few minutes of the occurrence. Except P.W. Muhammad Faisal, whose evidence in some material aspects has been ruled out of consideration, my learned brother has believed evidence in some material aspects has been ruled out of consideration, my learned brother has believed evidence of other P.Ws; He has observed that cumulative effect of their evidence is that they have seen the appellants firing at the marriage party causing death of 5 persons, and injuring 10 others, their evidence is corroborated by Medical evidence and the report of Chemical Examiner. He has further observed that the charge stood proved and learned trial Court rightly held that the appellants are guilty for offence of Qatl-eAmd and also of attempt to commit Qatl-eAmd. My learned brother S.A. Rabbi, J., while giving his reasons in his judgment, has, however, observed that in view of the evidence brought on record at trial; at least, a doubt about the false implication of appellants cannot totally be ruled out. Benefit of doubt is to go to the accused/appellants and being entitled to tne same they are entitled to acquittal. I have heard Mr. Abdul Hafeeq Lakho learned counsel for the appellants Arshad Ali, Mr. Abdul Qadir Halepota learned counsel for appellant Noman and Mr. Iqtidar Ali Hashmi for appellant* Naushad, Aamir, and Sarfaraz and Mr. Habib Ahmed learned A.A.-G. and with their assistance I have examined the material available before me. Mr. Lakho argued that complainant said in his evidence that when the assailant started firing they ran towards the house, P.W. Nayyar stated that he was attracted only on hearing shots; therefore, it cannot be said that in such state of panic, bewilderment and heated moments the complainant and others witnesses could have clear view of the assailants to identify them accurately. He
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expressed that their visual evidence is nothing but a suspect evidence and cannot be relied upon unless it is shown that the offenders are known to the witnesses, there was no obstructions in between him and the offenders; and also that there was sufficient light to enable the witness to have a clear view of the offender and the incident taking place. In support of his arguments he referred to the case of Muhammad Arshad v. The State (PLD 1995 SC 475) and the case of Sajjad Hussain v. The Sate (1997 SCMR 174). Mr. Habib. Ahmed learned A.A.-G., controverted the arguments of Mr. Lakho with great degree of force. He submitted that it was a marriage ceremony when incident is said to have taken place; as such there must be sufficient light, even otherwise the accused persons are already known to the witnesses, they can easily be identified, even on dim light. He, strengthened his submission by saying that there is nothing on the record to indicate that there was no sufficient and that there was any Obstruction enablings them .to witness the incident. Complainant Muhammad Shafique is brother of bride on whose marriage the marriage party available on the scene of occurrence was fired at when her "Going away" was to take place. According to him, on 31-5-1991 at about 8-30 p.m. he was near Islamia Masjid, Liquatabad No,3 whereas a tent was installed in connection with marriage of his sister and a bus brought by the party of bridegroom was parked near the tent when 5 or 6 persons came on motorcycle and started firing at bus causing death of 5 persons and injuring. Faisal, Nasim, Anwar and others; that he had seen the motorcycle riders before they had escaped and that they were Sarfraz Amir Naushad Noman and Arshad Pandey who are known to him because they have been visiting his Muhallah previously and are resident of Liaquatabad. He pointed out to the five accused in Court and said that they are same who had come on two motorcycles and fired at the marriage party. In his cross-examination, he has stated that he was 10-15 paces away from the Bus at the time of incident. Also, he stated, that he was not in the house at the time of firing attending to his mother and sister. Another eye-witnesses P.W. Nayyar has stated in his evidence that after visiting his father when he reached Masjid Chowk (Square), he heard 2 or 3 gun shots from Jhanda Chowk, a place five-seven paces away from first mentioned Chowk and saw all the five accused persons present in Court who had come on motorcycles and fired at bus with automatic and semiautomatic fired arms and that the tiring continued for 2 or 4 minutes. He also stated that fie resided in same Muhallah in which marriage ceremony Was taking place and that all the accused persons are residents of same Muhalla, therefore, are known to him. Mr. Lakho has placed reliance on case of Muhammad Arshad (supra), in which, in para. No,15 it has been observed: "15. The principle to be extracted from the decided case thus is that the evidence of visual identification is one of the categories of suspect evidence and that ordinarily it is not safe to convict on the basis of such evidence without corroboration. Indeed, in exceptional circumstances, that is, where the evidence of visual identification is of exceptionally good equality, such as, where the offender was known to the witness, there as sufficient light, the witness had an unobstructed view of the offender and there was a dialogue between the witness and the offender, the evidence may be acted upon." He has also referred to case of Sajjad Hussain (supra) in which the same principle has been followed. It may be noted that incident has taken place at 8-30 p.m. in Liaquatabad which place, as per arguments of learned counsel for the appellants, is a densely populated area. It cannot be said to be without light, yet the places where marriages take place are largely illuminated and enough light is made available. It, therefore, cannot be presumed that at the time of incident there was no light. The defence has also not ventured to ask any question about availability or non-availability of light, conscious of the fact that at such occasions enough arrangements are made for the purpose. There is also nothing avialable in the evidence of complainant and P.W. Nayyar that there
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was any obstruction blocking their view and rendering them unable to witness the incident or for that matter they suffered from any infirmity disabling them to see as to what was happening during the course of incident. Complainant has stated in an unambiguous terms that he had seen the appellant firing at bus as a result whereof 5 persons died and 10 persons got injured. Complainant has stated that he knows the accused as they had been visiting their Mohallah previously and that they are residents of Liaquatabad. His statement was recorded on spot as confirmed by S.H.O. Aslam Noor Khan who has stated that apart from complainant he also recorded the statement of P.W. Nayyar. Therefore, presence of complainant cannot be doubted. In view of this discussion, I am clearly of the view that the complainant Muhammad Shafique had a clear view of the incident and in this he is supported by P.W. Nayyar, an independent witness whose presence on spot -has also been confirmed by the S.H.O. The case law referred by Mr. Lakho is therefore, of no assistance to the appellants. Mr. Lakho, next, argued that the complainant Muhammad Shafique's evidence is not trustworthy also for the reasons that he has not named appellant Naushad in F.I.R., but, has named him in his evidence; that in F.I.R., he not disclosed the name of eyewitnesses Nayyar, Faisal and Rashid Zaffar and has only given names of P. Ws. Nasim and Anwar to be present on the spot at the time of occurrence. Same arguments were also advanced by other learned counsel for appellants. Mr. Lakho also challenged the statement of complainant in which he has said that he knows the accused because they are residents of Liaquatabad. He reasoned that Liaquatabad is a vast, area, spread in miles with dense population in lacs; therefore, it is not possible for residents of such huge place to know each other, learned A.A.-G. replied that the. F.I.R. was lodged with promptitude; complainant has disclosed the name of appellant Naushad, has assigned role played by him, identified him in Court and that mere absence of names of some witnesses in the F.I.R. cannot eliminate his/their evidence or discredit their presence at the place of occurrence. There is no denial that the name of appellant Naushad does not appear in the F.I.R.; the fact, however, is that F.I.R. is not a substantive piece of evidence. In this opinion I am supported by the case of Imtiaz Hussain Phulpoto v. Returning Officer (1987 SCMR 468), wherein it has been held that: "The first information report and statements recorded under section 161, Cr.P.C. having served a subordinate purpose loses much importance insofar as the material considered for rendering the finding of guilty or otherwise is concerned. They are not treated as substantive evidence against the accused and no finding of guilty can be based on them. Whether it is criminal Court functioning under normal law or is a summary Military Court under Martial Law, there is no difference in this behalf." The complainant in his evidence has named Naushad as one of the assailants so also he has clearly identified him in Court. In first trial, also he named him as one of the offenders. Certified true copy of his deposition (Exh.4.B) has been produced by him in his evidence. It will be pertinent to note that in his cross-examination, neither his attention has been drawn to the omission that he did not disclose the name of accused Naushad in F.I.R., nor the statement of complainant naming the appellant Naushad in his examination-in-chief has been challenged. It is well-settled principle of law that when some fact is deposed in examination-in-chief which is not questioned in cross- examination, the presumption is that part of evidence is deemed to have been accepted by the party against whom that evidence has been given. In this, I am supported by the case of Iftikhar Ahmed alias Boby and another v. The State reported in 1991 PCr.LJ 488 (Federal Shariat Court). Also, no question has been asked from the complainant that his evidence disclosing the name of appellant Naushad is on account of ulterior motive or due to enmity. As regards non-mentioning the names of P.Ws. in F.I.R., it may be stated .that the complainant has clearly stated in the F.I.R. that this incident has been witnessed by Anwar,. Naseem- and other people (underlining is mine). His statement, therefore, does not exclude the presence of the eye-
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witnesses who include Nayyar Muhammad Faisal and Rashid Zaffar. Amongst them P.W. Muhammad Faisal is himself an injured person and P.W. Rashid Zaffar runs a pan shop at Islamia Chowk. P.W. Nayyar has also stated in his evidence that he is resident of same locality in which the appellants resided and where the incident took place, therefore, their evidence cannot be ruled out of consideration for the simple reason that their names do not appear in the F . I. R . Mr. Halepota, in his arguments referred to the words the Ivestigating Officer recorded his 154, Cr.P.C. statement of his own (Underlines are mine) which the complainant has said in his evidence. Criticizing this piece of evidence, he interpreted that the said statement of complainant sufficiently indicates that 154, Cr.P.C. statement is not of the complainant but that the Investigating Officer, therefore, according to him entire basis of prosecution case becomes doubtful. I, however, do no agree with Mr. Halepota in his interpretation for the reasons that the words "of his own", in my view, refer to manual exercise of the S. H .0. in writing the F.I.R. and not the facts supposedly conjured up by him and/or written by him of his own accord' or wish. The other reasons for my disagreement are that the effect of these words is to be appreciated keeping in view the entire evidence of complainant Muhammad Shafique to assess that his other evidence militates or is in harmony with the interpretation of Mr. Halepota. On perusal of deposition of complainant, recorded before the Judges Special Court., STA, what I find is that the complainant, has clearly stated ' that his statement under section 154, Cr.P.C. produced as Exh.4-A was recorded by the Investigating Officer and it bears his signature. It was read over to him in Court and he stated that it is correctly recorded; more so he has furnished explanation in his re-examination by the saying that during his earlier trial he had stated that the Police Officer took down "his" F.I.R. on plain paper and obtained his signature on it. Thus, it is quite clear that the complainant consciously own his statement recorded under section 154, Cr.P.C. He has, in his evidence, fully supported it in clear terms in all material details. Mr. Halepota, then, argued that P.W. Nayyar has stated in his evidence that his statement was recorded on spot so also the statement of complainant Muhammad Shafique was recorded in his presence; but the complainant has contradicted him by saying in his evidence that police had not recorded statement of any other person, in his presence. He added that another glaring discrepancy is that the complainant has even not named P.W. Nayyar as a witness. He urged that aforementioned contradictory statements and the discrepancy creates doubts on the evidence of both of these two witnesses. In order to appreciate above contentions of Mr. Halepota, properly, I have gone through evidence of both the complainant and P.W. Nayyar. The complainant has stated that the incident took place at 8-30 p.m. police arrived at the spot after about 10-15 minutes and immediately the S.H.O. recorded his statement, soon whereafter, he returned to his house therefore, his statement in his evidence that police had not recorded statement of any witness in his presence does not seem to be incorrect or improbable. As far nondisclosure of the names of P.Ws. in 154, Cr.P.C. statement of complainant, which includes eye-witness Nayyar, is concerned, this point has already been sufficiently discussed in detail and explained, in foregoing paras. Mr. Halepota further argued that complainant Muhammad Shafique while recording his evidence in previous trial had not identified accused Noman so also P.W. Naseem during later trial has not identified accused Noman from whom no recovery has been effected, therefore, prosecution case against him becomes doubtful. I have gone through evidence of complainant Muhammad Shafique who has disclosed in his previous statement the name of appellant Noman as one of the assailants. Also, in his statement in examination-in chief, he has stated in unequivocal terms that, "the accused present in the Court are the same" meaning thereby that all the appellants were identified as the culprits. He has, of course, stated in that statement in another place that, "I see accused Sarfraz, Naushad, Amir and
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Arshad present in Court", but this statement, does not slightly demonstrate that he has denied to identify appellant Noman rather it tan safely be concluded that he has identified him when he say in the end of his examination-in-chief that, "the accused present in, the Court are same', moreso, having already named him as a culprit. It will also not-be out of place to mention here that the complainant has disclosed the name of appellant Noman in his 154, Cr.P.C. statement, which according to him was recorded on spot within minutes of the occurrence by S.H.O. He has also named-him in his evidence record in later trial. He has no enmity with appellant Noman. P.W. Naseem has identified--all the appellants, which include appellant Noman, by saying that, "I see the accused person in Court". Be that as it may, P.W. Nayyar an eye-witness, has corroborated complainant's evidence. He has clearly named appellant Noman as one of culprits and identified him in Court by pointing him by name. His evidence has not been shaken in cross-examination. Learned counsel for appellants have also taken the plea that all the eye-witnesses are chance witnesses and no independent and natural evidence is available to corroborate the evidence of the complainant. Reliance has been placed on case of Daud alias Dadan and another v. The State (PLD 1964 Kar. 428), the case Abdul Hamid v. The State (1985 PCr.LJ 1992) and the case of The State v. Muhammad Sharif and 3 others (1995 SCMR 635). Learned A.A.-G. controverting the above arguments expressed that all the eyewitnesses have justified their presence on the spot at the time of occurrence; besides, they are unanimous in their evidence while giving the names of culprits and role played by them. He submitted that they were subjected to lengthy cross- examination but barring few contradictions of simple nature nothing favourable to appellants could be extracted from them which also sufficiently establishes their presence. The 'appreciate the above point, it may be stated that complainant is brother of bride on whose marriage the incident took place. His evidence has been discussed above. His presence at the time of incident is natural. P.W. Nayyar has also stated that he is resident of same Locality. He has justified his presence on the spot. P.W. Naseem Ahmed, another eye-witness has received injury during the course of incident. He has stated that at the time of incident he was selling Bun and Kababs on his push-cart in Jhanda Chowk where a marriage ceremony in the house of complainant was being held. This statement has not been challenged in his cross-examination,' P.W. Faisal is yet another witness who, in the incident received bullet injuries, therefore, his presence also cannot be doubted. P.W. Rashid Zaffar runs a pan shop near the place of occurrence. P.W. Anwar is also an injured person. He has stated that he is resident of Liquatabad, a locality where the incident has taken place and at the time of incident he had gone to purchase pan from Panshop at Jhanda Chowk. Therefore, all these witnesses cannot be termed as chance witnesses. The case law cited by learned counsel for appellant as discussed below is distinguishable and of no assistance to the appellants. In the case of Daud (supra) the incident took place when the deceased (Abdul Aziz) was going to his village. P.Ws. Ali Nawaz and Nazar, his co-villagers, who joined him on the way to their village were considered as chance witnesses and their evidence was examined with care and caution and ultimately their evidence was not believed. In the case of Abdul Hameed, P.W., BakhsaL whose land was situated about two miles from the place of Vardat attempted to show his presence near the place of Vardat by stating that he had come to see the head of watercourse; that fact, however, was that there was not cultivation on his land as per his own admission, therefore, it was observed that there was no occasion for him to go and see the head of watercourse. Another P.W. Muhammad Chuttal in that case, who happened to be grazer by profession, deposed that he had taken his cattle for grazing and while he was returning he heard cries but as per his own admission there was no grazing field near the place of Vardat. Their evidence was therefore, not believed. In case of the State v. Muhammad Sharif and three others (supra) P.W. Sh. Muhammad Javed, an
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eye-witness in the case resided at the distance of two furlongs from the scene of offence and witnessed the incident while on way to the house of his brother-in-law. It was observed that he was accidentally present at the spot and his explanation with regard to his presence there was found far from satisfactory. Learned counsel for the appellants, beside the above, have contended that there is no circumstantial evidence to corroborate ocular evidence therefore no implicit reliance can be placed on their testimony and that the prosecution has failed to establish its case against the appellants beyond shadow of doubt. It may be pertinent to note that my learned brother Wahid Bux Brohi, J., has already held that ocular testimonies have been corroborated by medical evidence and the collection of blood samples from the place of occurrence. After going through the record I also do not feel inclined to disagree with him. Be that as it may, in a criminal case conviction of an accused can be based on evidence of sole…
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