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Petitioner: MIR HASSAN and others. VS Respondent: STATE and others
Court Name: Supreme Court of Pakistan Judge(s): Mamoon Kazi, Saeeduzzaman Siddiqui, Sh. Ijaz Nisar Title: MIR HASSAN and others. vs STATE and others Case No.:Criminal Appeals Nos. 20 to 25 of 1994 and Criminal Review Petition No,8 of
JUDGMENT
Reported As: 1999 SCMR 1418 Result: Order accordingly Judgment JUDGMENT ' SAIDUZZAMAN SIDDIQUI, J.---We propose to dispose of above-mentioned 5 criminal appeals and Criminal Review Petition No,8 of 1994 by a consolidated judgment, as they arise out of a common judgment of a learned Division Bench of the High Court of Sindh dated 7-9-1993. Leave was granted by this Court in the above appeals as follows:-- "Leave is prayed for in these petitions against the consolidated judgment and order dated 7-9- 1993 passed by the High Court of Sindh, Karachi in connected Criminal Appeals Nos.185 of 1990, 189, 190 and 193 of 1990; and Criminal Revisions Nos.95 of 1990 and 28 of 1991; whereby the appeals filed by the respondents Nos.2 to 7 have been allowed and sentences of life imprisonment etc. Passed against them under section 302 read with sections 149 and 148, P.P.C. Have been set aside and they have been set at liberty and the revision petitions filed by the petitioner in Criminal Petition No,84 of 1993 seeking enhancement of sentences etc. Have been dismissed. ' We have heard the learned counsel for the petitioner and have been led through the relevant record on the points which prevailed with the learned High Court in accepting the respondents Nos.2 to 7 appeals. Leave is granted for reappraisal of evidence and to consider; whether, the judgment of the trial Court convicting the accused/respondents on a charge of murder could be reversed by the learned High Court of Sindh at Karachi, when such conviction was based on reasonable and manifestly sound grounds supported by the evidence on record. And as to
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whether the reasons for acquittal given by the High Court for upsetting the same are arbitrary, contrary to the record and are based on conjectures and surmises. ' Non available warrants shall issue against the respondents." 2. The case has a very chequered history and it has been brought before this Court through the present appeals for the third time. The case is also a classical example of Court delays on account of negligence or indifferent approach on the part of prosecution agency at the behest of influential parties involved in a criminal case. 3. The incident took place on 6-9-1974 at 1-30 p.m. Near Qadri Hotel, Jackson Bazar, Kemari, Karachi. The F.I.R. In the cases was lodged with the Police Station Jackson, Karachi at 1-45 p.m., within 15 minutes of the occurrence, by the eye-witness, Bakhtiar Khan (P.W. 10) under section 302/ 307/148/149 P.P.C. According to allegations in the F.I.R., the incident took place at about 1-1/2 O'clock on' 6-9-1974 which was a Friday and a public holiday. Habibur Rehman accused allegedly came on the spot driving Jeep No,KAX-7626. Rustam Khan and Zabit Khan were sitting with him on the front seat of the Jeep while accused Zia Abbas, Tariq Saeed, Muhammad Akbar and Hussain Khan were occupying the back seat in the said Jeep. Mir Ajab, another accused, was said to be following the Jeep on a Scooter. The Jeep and the Scooter stopped in front of Qadri Hotel, Masjid Road and the occupants of the Jeep and the Scooter came down. At that time Abdul Hassan and Noor Hassan deceased, and injured Fazal Qayyum were standing outside the hotel and talking with each other. As soon as all the accused came down from their respective vehicles, Zia Abbas accused exhorted Habibur Rehman and others in the case, who were accompanying him, that they should take advantage of the opportunity and finish their enemies. No sooner Zia Abbas uttered these words, Habibur Rehman allegedly opened fire which hit the eye of Noor Hassan. Rustam Khan opened fire which hit the head of Abdul. Hassan. Zabit Khan also fired which hit the hip of Fazal Qayyum. After receiving the shot from Habibur Rehman, Rustam Khan and Zabit Khan, Noor Hassan, Abdul. Hassan and Fazal Qayyum respectively fell down on the ground. All the persons, who were armed with shot guns, revolver and pistols, fired at Abdul Hassan, Noor Hassan and Fazal Qayyum with intention to kill them. Noor Hassan died on the spot and leaving the 2 injured Abdul Hassan and Fazal Qayyum, the complainant Bakhtiar rushed to the Jackson Police Station, which was at a short distance from the scene of incidence and lodged the F.I.R. Police is said to have arrived at the scene of the offence within half an hour. The Investigating Officer (I.0.) on arrival at the scene, found several people gathered at the scene of the occurrence. He then enquired from the persons who had collected at the scene of offence, as to who are those persons who saw the incident. P.Ws. Abdul Qadir, Fazal Qadir, Munir, Muhammad Nawaz and Abdul Malik came forward and disclosed to the Investigating Officer that they had seen the occurrence. The Investigating Officer then proceeded to the spot where incident took place and in presence of Musheers' Fazal Qadir' and Muhammad Nawaz, on the pointation of the complainant, Bakhtiar, prepared a site plan which was produced before the Court as Exh. 140. He secured from the place of occurrence two used bullets, one used cartridge, one live cartridge of black colour of :12 bore and an employ of the pistol. He also secured blood-stained earth from the spot and sealed the same in presence of 'Musheers'. As the dead bodies and the injured were in the meantime removed to the hospital, the Investigating Officer leaving behind the witnesses at the scene of offence, proceeded to the civil hospital where he requested the doctor to allow him to record the statement of injured Abdul Hassan and Fazal Qayyum. The doctor on duty certified that Abdul Hassan was not in a condition to make any statement but he allwoed the Investigating Officer to record statement of Fazal Qayyum. The letter on which doctor A.M. Qureshi certified that Abdul Hassan was not in a fit state to give statement while Fazal Qayyum was fit to give statement, was produced in evidence as Exh.174. The Investigating Officer prepared the inquest report of the dead body of Noor Hassan which was produced before the Court as Exh.118.
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While in the hospital, the Investigating Officer recorded statement of Haji Sher Hassan, who had brought the dead and the injured to the hospital. After completing these formalities at the hospital, the Investigating Officer returned to the scene of offence where he recorded the statements of P. Ws. Abdul Qadir, Fazal Qadir, Munir, Muhammad Nawaz and Abdul Malik under section 161, Cr.P.C. He then went back to Jackson Police Station, where he received information late in the night on telephone from civil hospital that injured Abdul Hassan also died. On receiving this information, the Investigating Officer once again went to civil hospital where he prepared the memo. Of dead body of Abdul Hassan and the inquest report. The inquest report and 'Musheemama' of the dead body were produced in Court as Exhs. 109 and 110 respectively. The Investigating Officer then made search for the accused person and at the same time addressed letters to the medico-legal incharge of civil hospital for post-mortem of the deceased Noor Hassan and Abdul Hassan. The letters addressed to the medico-legal incharge of the civil hopsital were produced as Exhs. 176 and 170 respectively. On 7-91974, the Investigating Officer searched for the accused and arrested accused Habibur Rehman, Rustam Khan, Zabit Khan, Hussain Khan and Muhammad Akbar from different places. He also seized Jeep No, KAX-7626. The Investigating Officer then interrogated the arrested accused in respect of their crime weapons, whereupon Habibur Rehman accused took him to his house and produced one shot gun .12 bore and 4 cartridges, which were secured by the Investigating Officer under a Masheernama witnessed by Muhammad Azam and Ghulam Ahmed. The seizure memo. Was produced in Court as Exh,. 197 and Gun No,814689 recovered at the instance of Habibur Rehman was produced as Article 97-A before the Court. Accused Zabit Khan then led the Investigating Officer to his house which was situated within the same compound, where accused Habibur Rehman lived and produced revolver of .32 bore with 12 bullets, which were also secured under a Musheernama in presence of Musheers Muhammad Azam and Ghulam Ahmed. Musheernama was produced in Court as Exh. 98 and revolver as Article 96-B. In the like manner, accused Hussain Khan also led the Investigating Officer to the house, which was within the same compound, and he produced rifle .32 bore bearing No,2473 with 10 live cartridges, which were seized under a Musheernama witnessed by the same witnesses Muhammad Azam and Ghulam Ahmed, and produced under memo. Exh. 99 and Article 96-C. Rustam Khan accused also led the Investigating Officer to his house and produced one pistol and a shot gun alongwith 2 Jive cartridges which were seized under Musheernamas in presence of Muhammad Azam and Ghulam Ahmed. Seizure memo. Was produced as Exh. 100 and pistol and gun were produced in Court as Articles 100 and 100-k respectively. The gun (Article 100-D) recovered at the instance of Rustam Khan was later found to be owned by accused Habibur Rehman. All the arms seized by the Investigating Officer were licensed arms. P.W. Mir Hassan was examined by the Investigating Officer on 7-9-1974 in the evening. Accused Zia Abbas and Tariq Saeed were arrested from Islamabad and their custody was handed over to the Investigating Officer on 11-9-1974. All the arms seized by the Investigating Officer alongwith 2 bullets, one extracted by the doctor from body of Noor Hassan and other from body of Fazal Qayyum, were sent to the ballistic expert for opinion. The receipt of the bullet issued by Dr. A.M. Qureshi on 20-9-1974 was produced as Exh.178 while the receipt dated 6-9-1974 issued by Dr. Abdul Hadi, was produced as Exh. 179. The letter of Investigating Officer forwarding the two bullets to the ballistic expert, was produced in evidence as Exh. 166. Accused Mir Ajab could not be arrested in the case and therefore, he was shown as an absconder. After completing all the formalities in the case, the accused were put to trial before the Sessions Judge, Karachi. As soon as the trial commenced before the trial Court, an application was moved on behalf of the State under section 494, Cr.P.C. For withdrawal of the case against Zia Abbas and Tariq Saeed on 2-7-1976. The trial Court rejected the application by order dated 27-7- 1976. A revision was filed against the order of the trial Court before the High Court of Sindh which
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was accepted by the learned Chief Justice of that Court by order dated 25-10-1976. The learned Chief Justice set aside the order of the trial Court rejecting the application under section 494, Cr.P.C. And allowed withdrawal of the case against Zia Abbas and Tariq Saeed. The judgment of High Court of Sindh is reported as Tariq Sayed v, State (PLD 1977 Karachi 235). Against the order of the High Court, the complainant filed an appeal before this Court which was allowed and the judgment of the High Court was set aside, with the result the order passed by the trial Court rejecting application filed under section 494, Cr.P.C. Was restored. The judgment of this Court is reported as Muhammad Hassan v. Tariq Saeed (PLD 1977 SC 451). This Court while discussing the principles governing withdrawal from the prosecution under section 494, Cr.P.C. Made the following observations in, respect of the desirability of withdrawal of the case against 2 accused, Zia Abbas and Tariq Saeed:-- "The application for withdrawal from prosecution has not been made in this case on any ground of public policy or public peace and interest, but merely. On grounds which are directly related to the detailed appreciation of evidence, namely, that the only role assigned to respondent Zia Abbas is one of instigation while no overt act has been alleged against Tariq Saeed, that the incident having occurred owing to enmity between the parties, it was not shown whether Zia Abbas and Tariq Saeed were in any manner connected with the two opposing factions, that the number of the jeep in which the assailants are said to have arrived at the spot showed that the vehicle was not a jeep but a Toyota Car, that there was political rivalry between the two respondents and the appellant Mir Hassan; that respectable witnesses in the locality have supported the alibi of the two respondents, and that one person by the name of Muhammad Idrees had categorically stated that the two respondents were not member of the unlawful assembly which had assaulted the deceased. The learned Chief Justice has observed, after a fairly detailed analysis of the evidence, that 'it cannot be said that benefit of these facts and circumstances is not admissible to the applicants', if in the ultimate analysis there is no scope for the prosecution to achieve their convictions.' ' While Mr. Muhammad Hayat Juneo, the learned counsel for the respondents, sought to support these conclusions of the High Court by a detailed analysis of the available evidence, Mr. Abdul Wahab Khan, learned counsel for the appellant, rightly submitted that this is precisely the kind of exercise which is not to be undertaken for the purpose of deciding whether consent to the withdrawal application should be accorded or not on the ground that there was insufficient or meagre evidence to sustain the prosecution. He submitted that in this case the first information report was lodged promptly within fifteen minutes of the occurrence, that the two respondents were positively named as being among the assailants, and that the leading role of instigator was assigned to respondent Zia Abbas. He also pointed out that during the investigation of the case seven eye-witnesses had supported the prosecution version, and accordingly this was eminently a case in which it should have been left to the trial Court to decide whether the prosecution evidence was worthy of credit or not. Having considered the submissions made by the learned counsel for the parties, we are of the view that in the facts and circumstances of the case the application made by the public prosecutor for his withdrawal from the prosecution of the two respondents did amount to an attempt to throttle the prosecution and to interfere with the ordinary course of justice. This is not at all a case where there is no evidence against these respondents such as could sustain a conviction. The real question in the case is whether the prosecution witnesses are worthy of credit and whether there are circumstances the benefit of which should go to respondents. These are questions which can only be determined by a proper trial, and this function of the trial Court cannot be permitted to be pre-empted at a preliminary stage by an application of the kind made in this case by the public prosecutor."
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(The underlining is by us). ' The above underlined portion of the observations of this Court sufficiently bear out the dubious role of prosecution in the case from the very beginning, perhaps for the reason that some influential were also involved in the case. 4. The case was thereafter taken up by the learned trial Court and after recording evidence of the parties, all the accused were acquitted by judgment dated 24-4-1978. The State filed an acquittal appeal before the High Court being No,232/78 while the complainant also preferred a revision application against acquittal of the accused. During pendency of the acquittal appeal before the High Court, ballistic expert was examined in the case and thereafter, by judgment dated 4-6-1981 acquittal appeal was dismissed. The matter was once again brought before this Court in an appeal filed by the State. This Court set aside the judgment of the High Court and remanded the case to the trial Court for a de novo trial. The judgment of this Court is reported as State v. Habibur Rahman (PLD 1983 SC 286). This Court while remanding the case to the trial Court once again noticed that because of influence of the parties in the case how the relevant evidence was made to disappear and incorrect material was produced before the Court to cause miscarriage of justice. This Court also noticed some invisible arrangement between the parties to exclude one of the accused from the case and realising its effect on the case of remaining accused provided that this circumstance will not be used in favour of other accused in the case. These were the observations of this Court:- "It is most painful to see very close relations pitched against each other in this case. No doubt both sides, it seems from record and admissions, are highly influential parties. It might have been due to this that attempts seem to have been made to divert the smooth flow of stream of justice, at the initial stage before the trial. There is sufficient guidelines in the governing precedent and the law, that the Courts would not be deterred by reaching their own correct conclusions notwithstanding the in competences of- stories, statements, and records from either side--private or public, individual or otherwise. It is also natural (besides danger of aforementioned influences) that in cases involving deep enmity or even strong adversary/partisan positions that each side would be interested in withholding that part of the case which goes against it." "In this case it is admitted that the defence complained about authenticity of the police statements recorded under section 161, Cr.P.C., of which copies were initially supplied to them. Thereafter, without enquiry and any finding, the Court supplied to them (on their asking) copies described as Khalasas (summary) of the said statements copied from the Diaries, with caption "under section 161, Cr.P.C." Then the prosecution protested strongly stating that the second supply was of-non- genuine record. Moreover, Faza1 Qayyum's (injured P.W.) statement under section 161, Cr.P.C. Was even then stated to be missing though its 'Khalasa' did exist and was supplied. ' It was not difficult to discover the correct Police statements. We procured one full set carbon copies thereof, from a Higher Police Office. If this did not then occur to anybody, the missing record could be reconstructed. For some aspects of reconstruction no doubt a distussion is available in paras. 6 and 7 of the judgment in Mst. Khudija Begum v. The State and others ( PLD 1971 BJ 19); but observation in para. 8 thereof would need modification with reference to the definition of 'proved' in addition to that of 'evidence' and what is being held in this case. If an elaborate enquiry was not considered necessary or advisable, the Court could give a reasoned finding about which set of copies was 'proved' on the 'probabilities' in pursuance of the definition of the word 'proved' in section 3 of the Evidence Act. ' Next, it has been discovered that the Investigating Officer (it seems under some invisible pressure or at least under badgering of the worst type which the Courts should never allow the counsel for either side to do) made blunders in reading the copies of 'statements' when the defence tried to prove them through his deposition. The only explanation by Mr. Muzaffar, who was then one of the
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defence counsel, that it was the duty of the public prosecutor to correct the witness, if something wrong was put to and, thus, elicited from the witness (because as has been represented from defence side, it was a practice to do so), is to say the least, not even worth consideration. It was the duty of the counsel of both sides that the witness read the record correctly. And above all the learned Presiding Judge should have supervised and checked it. Neither under the Criminal Procedure Code nor the Evidence Act, he to sit as a mere spectator. He is, even under the adversary system of law required to actively participate in the proceedings with full consciousness of what goes on record. Dependence on others can result into what happened in this case. Same comment would apply to feigning or real, turning of deaf ears, when the Investigating Officer protested that some documents being put to him, purporting to be under his signatures, were not so in reality. ' The third major argument regarding police statements is that even the disputed copies were not put to the witnesses is a proper manner so as to confront them in accordance with law, if at all there were noticable conflicts. The only explanation from defence is that it is a practice not to invite attention of the witness to properly marked/exhibited statements or parts thereof (e.g. 'portions marked A to A or B to B in copy of police statement Exh. D.A. Etc.) This, apart from being unfair to the witnesses, to the prosecution and the defence, is not in accord with the provisions of section 162, Criminal Procedure Code and section 145, Evidence Act. Same question having been raised earlier was adequately answered in Shah Nawaz and others v. The State (PLD 1959 Kar. 383)....We approve this authority and expect that no time would be lost in following the same. ' The foregoing serious irregularities resulted in a failure to afford opportunity to witnesses to explain their assumed previous, so-called contradictory, statements. All the foregoing circumstances and the reliance on the same, for deciding a case on a capital charge, has resulted in serious prejudice and miscarriage of justice." "It appears as if due to some arrangement, both the State and the complainant have not appealed against Tariq Saeed. This remand order even though otherwise an open one, would neither be used against that accused; nor, this circumstance shall be used in favour of the other accused. ' We accordingly accept these appeals, set aside the impugned judgments and remand the case for a fresh trial by a learned Judge other than who decided the case earlier." ' After remand of the case by this Court, as aforesaid, accused Tariq saeed was not proceeded against and, therefore, the post remand proceedings before the trial Court were only against the respondents herein. The learned trial court recorded fresh evidence in the case in accordance with the remand order of his Court dated 26-1-1983 and through a detailed judgment dated 10-11-1990, found accused Habibur Rehman, Rustam Khan, Zabit Khan, Hussain Khan, Muhammad Akbar and Mir Ajab Khan guilty of offence udue section 302/148/ 07/149, P.P.C. And convicted and sentenced them as follows: "(a) Under Section 148, P.P.C. To suffer R.I. For 3 months each. (b) Under section 302 read with section 149, P.P.C. Imprisonment for life each and a fine of Rs,50,000 (Rupees fifty thousand) each or in default to suffer R.I. For one year more. Out of the fine if realised half of the amount shall be paid to the heirs of the two deceased under section 544-A, Cr.P.C. As compensation. (c) Under section 307 read with section 149, P.P.C. To suffer R.I. For three years and to pay a fine of Rs,10,000 (Rupees Ten thousand) each or in default to suffer R.I. For three months more. Out of the fine if realised a sum of Rs,5,000 (Rupees five thousand) to be paid to injured Fazal Qayyum as compensation under section 544-A, Cr,P.C." ' Accused Zia Abbas was, however, acquitted in the case giving him benefit of doubt, From the judgment of the learned trial Court 4 appeals, being Criminal Appeals Nos.185, 189, 190 and 193 of 1990 were filed by Mir Ajab Khan, Muhammad Akbar, Rustam Khan, Hussain Khan, Habibur Rehman and Zabit Khan respectively, Mir Hassan, brother of the two deceased in the case, filed Criminal
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Revision No, 95 of 1990 and 28 of 1990 for enhancement of the sentence of the accused persons. The High Court through judgment dated 7-9-1993 allowed the appeals of the convicted persons and dismissed the 2 revision applications filed by Mir Hassan by judgment dated 7-9-1993. It may be mentioned here, at this stage, that Mir Hassan in his criminal revision application deleted the name of accused Zia Abbas, who was respondent in the revision application in compliance with the order of the High Court in Criminal Revision No,95 of 1990 dated 15-1-1991. The affect of this deletion is that before the High Court, there was neither any revision application nor an acquittal appeal against the acquittal of accused Zia Abbas in the case. The leave granted by this Court against the judgment of the High Court dated 7-9-1993, therefore, did not extend to the acquitted accused Zia Abbas. 5. At the hearing of these appeals, Mr. S.M. Zafar, the learned counsel for Zia Abbas, contended that the leave granting order does not extend to Zia Abbas as there was neither any appeal nor any revision against his acquittal by the trial Court, before the High Court.…
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