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Petitioner: DHANI BAKHSH and another VS Respondent: THE STATE
Court Name: Balochistan High Court Judge(s): Mehta Kelash Nath Kohli, Muhammad Nadir Khan Title: DHANI BAKHSH and another vs THE STATE Case No.: Criminal (A.T.A.) Appeal No,(S)2 of 2006 Date of Judgment:2006-06-14 Reported As: 2006 P Cr. L J 1671 Result: Appeal allowed
JUDGMENT
JUDGMENT ' MEHTA KAILASH NATH KOHLI, J.--- This appeal is directed against judgment, dated 6th February, 2006, passed by the Judge, Anti-Terrorism Court, Sibi Nasirabad Division, Sibi at Dera Murad Jamali, in Anti-Terrorism Case No,12 of 2005, whereby; appellants Dhani Bakhsh son of Muhammad Ramzan and Abdul Sattar son of Ghaus Bakhsh along with absconding accused Ali Gut son of Lashar Khan, have been convicted under section 3 of Explosive Substances Act, 1908 read with section 7(b) of Anti-Terrorism Act, 1997 and sentenced to suffer imprisonment for life, in addition to above sentence, the properties belonging to convicts were also ordered to be forfeited to Government. ' Facts of the case, in brief, are that a Murasla for registration of case under sections 3/4/5 of Explosive Substances Act read with section 7 of the Anti-Terrorism Act, 1997, was sent by complainant Naseebullah Khosa, I.P./S.H.O., to Officer Incharge, Police Station Dera Allah Yar, wherein; it was alleged that on 26th April, 2005 at 5-30 p.m. D.P.O. Jaffarabad through wireless information ordered the authorities of Police Station Dera Allah Yar that Constable Faqir Muhammad posted in office of D.P.O. Has informed that in front of MMD Office, some one has fixed a bomb at Railway Track, as such, directions were made to immediately reach at the spot and stop the trains coming on that track, as well as, Assistant Station Master Dera Allah Yar be accordingly informed, not to leave the trains from railway station. On receipt of said information, complainant along with Sub-Inspector Abdul Ghani (duty Officer), Sub-Inspector Akbar Ali, Sub-Inspector Soomar Khan and other police constables namely Ali Gohar, Muhammad Punhal, Noor Ahmed, Abdul Ghani, Muhammad Aslam and Ghulam Sarwar, in official vehicle departed from police station and reached the spot at 5-40 p.m., in the meanwhile; Abdul Lateef Baloch S.D.P.O./D.S.P. And
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D.S.P. Along with protection team reached at the spot and found a bomb lying with the railway track. The bomb was removed by Head Constable Allah Rakhia and while keeping it on the ground, the same blasted, in result whereof; Sub-Inspector Abdul Ghani, Head Constable Allah Rakhia, Head Constable Munawar Shah, Head Constable Bakht Ali (driver) and a civilian namely Abdul Sattar Bhangar sustained simple injuries. It was further alleged that the blast had caused about 1- 1/2 feet hole in the ground, and; on account of blast the pieces of bomb were not available. Motive behind the incident was alleged that unknown accused persons are causing loss to the railway track, in case, the police had not reached the spot in time, there was apprehension of heavy casualties: Consequent upon said Murasla F.I.R. No,79 of 2005 dated 26th April, 2005 under above mentioned sections was registered with Police Station Dera Allah Yar District Jaffarabad. Record contemplates that some suspected persons including convicts-appellants were arrested, and; out of three accused persons, convicts-appellants were identified by constable Faqir Muhammad. After completion of investigation, challan of the case was filed in the competent Court of jurisdiction. Learned Judge Anti-Terrorism Court, Sibi took cognizance in the matter. On 5th September, 2005, charge was framed to which convicts-appellants pleaded not guilty and claimed trial. ' The prosecution in support of its case has produced following evidence:-- 'P.W.1 Inspector Naseebullah Khosa, S.H.O. Police Station Dera Allah Yar (complainant) appeared while reiterating the version of Murasla had further deposed that due to blast, 1-1/2 x 1-1/2 feet hole was made on the ground, as such; no piece of bomb was available. It was deposed that on the basis of Murasla (Exh.P.1/A), F.I.R. (Exh.P.1/B) was registered. Investigation of the case was handed over to Sub-Inspector Soomar Khan; during course of investigation on 4th July, 2005, accused persons having found suspected were brought to police station, where in presence of D.S.P./S.D.P.O. Dera Allah Yar Circle, identification parade was made by constable Faqir Muhammad, who identified accused persons responsible for the commission of offence, in this regard identification map (Exh.P.1/C) was prepared. It was deposed that on 17th July, 2005 during course of investigation, accused persons made disclosure with regard to the commission of offence; in presence of witness and D.S.P., disclosure memo. Was prepared. The accused persons also made disclosure of place of incident, which was the same, as such; disclosure memo. (Exh.P.1/D) and site inspection map (Exh.P.1/E) on the disclosure of accused persons was prepared. It was deposed that on 18th July, 2005, accused persons recorded their statements under section 164, Cr.P.C. Before D.P.O. And on the same day they were remanded to judicial lock-up. The Investigating Officer after completion of investigation handed over case file to the witness, thereafter; incomplete challan (Exh.P.1/F) was prepared. ' In cross-examination, witness stated that he and D.S.P. Along with D.P.O. Together had reached the spot. It was stated that neither fire-brigade nor ambulance were called. It was further stated that bomb was lying under the railway track; it was also stated that there was no population along both sides of the railway track. He denied the suggestion that in between MMD Office and railway track, old vehicles were parked; voluntarily stated that the vehicle was parked inside the boundary wall. Witness stated that he had not called Bomb Disposal Squad. It was admitted that neither witness nor any other police officials had taken into possession anything from the place of incident. It was stated that the bomb blasted at a distance of 3/4 yards from the railway track. It was further stated that civilians were present around the place of incident. Witness stated that accused Dhani Bakhsh was arrested from his house while accused Abdul Sattar was arrested by constable Sikandar from a place situated near Sohbat Pur Gate. It was stated that at the time of identification parade, witness was present in the police station. The identification parade was made three times and the accused persons were made to stand at different places. It was stated that including accused persons, eight persons i,e, police officials, civilians and accused persons detained in the police
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station were associated in identification parade. Witness denied the suggestion that no identification parade was made. It was stated that in presence of witness and D.S.P. As ' well as, Investigating Officer,. Accused persons had made disclosure in Police Station Cattle Farm. It was further stated that they along with accused persons and witnesses had reached the place of incident. It was stated that witness had not produced the accused persons before D.S.P. For recording their confessional statement. Witness did not know the house of accused Abdul Sattar. He denied the suggestion that house of accused Abdul Sattar situated behind the office of D.P.O. Was demolished; voluntarily stated that said place was occupied by way of boundary, which was removed by the witness. He also denied the suggestion that one Sabir Ali had informed him that one unknown person had left something near the railway track. He also denied that said Sabir Ali was awarded cash prize by the D.P.O. Jaffarabad. He denied the suggestion that house of Sabir Ali was situated behind the office of D.P.O. Witness showed his ignorance that brother of Dhani Bakhsh through application addressed to District Nazim Jaffarabad had sought permission that a mobile phone company intends to install a tower in his house, however, he denied that said application was referred to D.P.O., which was marked to the witness. He admitted that tower of mobile phone is installed in the house of Dhani Bakhsh's brother. Witness showed that brother of accused Dhani Bakhsh had contested election from PB-21 Jaffarabad in the year 1996 and also showed his ignorance that in Local Government Elections 2001, accused Dhani was a candidate for the seat of General Councillor. Witness showed his ignorance that accused. Dhani Bakhsh was watchman of the tower of mobile phone. Witness denied that prior to installation of mobile phone tower, he and brother of accused Dhani Bakhsh had a quarrel. He denied the suggestion that as brother of accused Dhani Bakhsh is a social worker and used to criticize on police department, as well as, other institutions, as such; on the basis of said grudge, his brother i,e, Dhani Bakhsh was involved in the present case. Witness showed his ignorance that at the time of occurrence, accused Dhani Baldish was admitted in an eye hospital at Karachi. He denied the suggestion that to take revenge from brother of accused, accused Dhani Bakhsh has been involved in the case, while accused Abdul Sattar has been involved for the reason that he had raised encroachment behind the office of D.P.O. He denied the suggestion that he himself had made Faqir Muhammad as witnesses and also denied that said Faqir Muhammad had not seen any person. The suggestion was denied that absconding accused Ali Gul has falsely been involved in the case and denied that he is innocent. He further denied the suggestion that he has deposed falsely. 'P.W.2 Faqir Muhammad (constable) posted in D.P.O. Office Dera Allah Yar is the eye-witness. He has deposed that on 26th April, 2005, he had seen a bomb near the railway track, he went ahead and on confirmation, returned back and informed his higher officer, who immediately reached the spot. It was deposed that witness had not seen any person, as well as, also deposed that no identification parade was made before him. He did not identify the accused persons present in the Court. Note. This witness became hostile, as such; Public Prosecutor was allowed to cross-examine the said witness. ' In the cross-examination, this witness stated that in his statement under section 161, Cr.P.C. He had not stated that he had seen three persons, who had kept something wrapped in polythene bag near the railway track; he could identify the said persons, if seen. It was stated that during course of identification parade, he has not called, while his signatures were obtained on a plain paper. It was further stated that he had not identified the accused persons present in the Court. He denied the suggestion that due to fear from accused persons, he is not making correct deposition; voluntarily stated that he on his own free-will is making deposition. He denied the suggestion that he has concealed the real facts from the Court. He also denied the suggestion that being police man, he has made a deal with accused persons; voluntarily stated that he has no knowledge about the incident.
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'P.W.3 Allah Rakhia (Head Constable) deposed that on 26th April, 2005, he was deputed as Gunman of D.P.O. Jaffarabad. D.P.O. Jaffarabad and S.D.P.O. Dera Allah Yar along with driver, reached the place of occurrence i,e, railway track situated in between backside of D.P.O. Office and MMD Office. This witness had removed the bomb fixed under the railway track and walked at some distance; the alleged bomb blasted in result whereof; witness, Bakhsh Ali, Munawar Shah, Abdul Ghani and Abdul Sattar sustained injuries. In the meanwhile, Constable Faqir Muhammad stated that he had seen three persons, taking out something from polythene bag and kept the same near railway track, whom he could identify if seen. ' In cross-examination, witness stated that prior to his reaching at the spot, I.P./S.H.O. Along with Sub-Inspector Akbar Ali, Sub-Inspector Abdul Ghani, Sub-Inspector Soomar Khan and other persons were present there. It was stated that only Abdul Sattar amongst civilians was present at the spot, who was coming out from MMD Office. It was further stated that no house was situated near the railway track. The bomb was fixed beneath the railway track, which he removed and kept at a distance of three yards from the track, which suddenly blasted. Witness stated that his statement was recorded at the spot when he was injured. He denied the suggestion that no proceedings were made in his presence and also denied that the whole proceedings were made in the police station. He denied that he has deposed falsely. ' P.W.4 Abdul Raheem Jamot District Police Officer, Jaffarabad appeared in witness-box and deposed that on 18th July, 2005, Soomar khan Investigating Officer along with two accused persons namely Abdul Sattar and Dhani Bakhsh came to his office, where he submitted written application (Exh.P.4/A), alleging therein that the accused persons in F.I.R. No,79 of 2005, registered under sections 3/4/5 of Explosive Substances Act read with section 7 of Anti-Terrorism Act, 1997, are willing to record their confessional statements. Witness further deposed that after providing half an hour to the accused persons far thinking and were provided comfortable atmosphere, and; again after asking that the accused persons are willing to give their confessional statements, their statements were recorded, thereafter; confessional statements of both the accused persons were separately recorded. Accused Abdul Sattar in his statement recorded under section 164, Cr.P.C. (Exh.P.4/B), wherein; he had made confession of railway bomb blast. Relevant portion of statement of accused Abdul Sattar recorded under section 164, Cr.P.C. Is reproduced hereinbelow:--{{URDU TEXT}} ' After recording statement of accused Abdul Sattar, the same was sealed in envelope (Exh.P.4/A), witness produced statement of accused Abdul Sattar recorded under section 164, Cr.P.C. (Exh.P.4/C), certificate (Exh.P.4/D) issued by the witness. It was further deposed that on application (Exh.P.4/E) submitted by S.H.O. Railway Police Station Sibi, copy of the confessional statement of accused Abdul Sattar was provided to him. Thereafter, statement of accused Dhani Bakhsh under section 164, Cr.P.C. Was recorded. Relevant portion of the same is reproduced hereinbelow:-- {{URDU TEXT}} ' After completion of statement the same was sealed in envelope (Exh.P.4/F). Witness produced report of Investigating Officer (Exh.P.4/G) and statement of accused under section 164, Cr.P.C. (Exh.P.4/H) and certificate (Exh.P.4/J). He had also given copy of the said statement to S.H.O. Police Station Railway. Thereafter both the accused persons were sent in the Court of Judicial Magistrate for their remand to judicial lock-up. He identified accused persons present in the Court. ' This witness was thoroughly cross-examined. He stated that confessional statements of accused persons were recorded after fifteen days of their arrest. He admitted the suggestion that at the time of recording statements of accused persons under section 164, Cr.P.C. He was wearing official dress and was present in his office. Witness admitted the suggestion that in Dera Allah Yar, Dera Murad Jamali, Usta Muhammad, Chattar and Gandawah, Courts of Judicial Magistrate are functioning; voluntarily stated that he did not know that Court of Judicial Magistrate is functioning
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in Chattar. It was stated that prior to the present case. He had not recorded statement of any accused person under section 164, Cr.P.C. Witness further stated that prior to recording statements of accused persons, they were not given oath. He admitted the suggestion that after recording of their statements, custody of accused persons were handed over to the police officials; voluntarily stated that they were his bodyguards. He admitted the suggestion that the officials of Investigating Agency are his subordinates; voluntarily stated that another S.P. Was deputed for investigation. He further admitted that brother of accused Dhani Bakhsh had submitted an application to District Nazim seeking permission for installation of mobile phone tower and also admitted that he had forwarded the said application to S.H.O. Police Station Dera Allah Yar. He showed his ignorance that on said application there occurred quarrel between accused Dhani Bakhsh's brother and S.H.O. Naseebullah; voluntarily stated that he had contacted the District Nazim on telephone and told him to grant permission for installation of tower. He admitted the suggestion that on backside of his office, but shape houses were constructed, which were demolished; while he did got remember that house of accused Abdul Sattar was also situated there. He denied the suggestion that accused persons had not recorded their confessional statements. He further denied that in collusion with S.H.O., the whole proceedings were drawn in the police station. He denied the suggestion that on the basis of enmity with brother of accused Dhani 'P.W.5 Amanullah Sub-Inspector Police Station Dera Allah Yar deposed that on 17th July, 2005 he along with Haji Ali Nawaz A.S.-I. Was present in the police station; in Investigation room Naseebullah Khosa, D.S.P. Lateef Baloch and Sub-Inspector Soomar Khan were interrogating the accused persons. Both the accused persons made confession that on backside of the office of MMD Jaffarabad, they along with their third companion namely Ali Gul son of Lashar had fixed a hand grenade beneath the railway track. The motive behind the said act was statedly alleged that army had launched operation against Bugti Tribe, and; to agitate the same, they had committed the said act on the pretext to damage the railway track and the passengers sustain loss, for which, their Nawab will be pleased. On such disclosure, police authorities accompanied the accused persons to the place of incident i,e, railway track, where the accused persons pointed out the place ,of incident. Sub-Inspector Soomar khan had prepared site plan, as well as, site inspection memo. Was also prepared. Witness identified site inspection memo. (Exh.P.1/D) to be the same. He also identified accused persons present in the Court. ' In cross-examination, witness stated that accused persons made disclosure at 10-00 a.m. And they had visited the place of incident at 12-30 p.m. It was stated that on seeing police party, people i,e, 20/25 persons of the vicinity gathered there, statement of none of the said persons was recorded. He denied that accused persons had not made any disclosure. He also denied that he has deposed falsely. 'P.W.6 Ali Gohar Constable Police Station Dera Allah Yar deposed that on 26th April, 2005, he was present in the police station; through wireless control, information was received that on backside of S.P. Office, something wrapped in polythene was lying on the railway track, on receipt of said information, he along with S.H.O. And other security officials reached at the spot, where in a polythene bag, bomb was found, which was removed by Allah Rakhia and kept on a side, after two minutes the bomb blasted, in result whereof; Allah Rakhia, Munawar Shah, Bakhsh Ali, Abdul Ghani and Abdul Sattar had sustained injuries. S.H.O. Had written Murasla with regard to the incident and was sent to police station through Abdul Ghani, consequently; Soomar Khan was deputed as Investigating Officer. It was further deposed that Soomar Khan had inspected the site, in this regard site inspection memo. (Exh.P.6/A) was prepared, thereafter; injured persons were shifted to hospital, where one black coloured shirt of Abdul Ghani and one commando Banyan of Allah Rakhia were handed over to Soomar Khan, which were taken into possession through recovery memo. (Exh.P.6/B).
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' Witness identified black coloured shirt (Article 1) and Banyan (Article-2) to be the same. ' In cross-examination, this witness stated that on receipt of information, he along with Naseebullah S.H.O. And Punhal had reached the spot; other police officials had also reached there at the same time. It was stated that after the blast, 40/50 persons gathered there. It was stated that houses are located near to the railway track. It was further stated that on backside of D.P.O. Office 3/4 houses were located. Witness stated that his statement was recorded by Soomar Khan, while he showed his ignorance that apart from him statement of any other person was recorded. It was stated that Soomar Khan had shifted the injured to hospital in official vehicle. Witness denied the suggestion that all the proceedings were made in the police station. It was denied that on the basis of dispute over installation of mobile phone tower with accused Dhani Bakhsh's brother, Naseebullah Khosa had involved accused Dhani Bakhsh and Abdul Sattar in a false case. 'P.W.7 Munawar Hussain Shah, Head Constable Special Branch, Dera Allah Yar appeared in witness- box and deposed that on 26th April, 2004, he was posted as Incharge Special Branch and while performing his duties, he was roaming in Bazar. It was further deposed that through wireless set, information was received that on backside of MMD Office, a bomb was fixed beneath the railway track; on receipt of said information witness reached at the spot. The bomb was concealed in polythene bag, which was removed and kept on a side, in the meanwhile the bomb blasted, in result whereof; witness, Allah Rakhia (constable), Bakhsh Ali (driver), Sub-Inspector Abdul Ghani Soomro, Abdul Sattar Bhangar (MMD) had sustained injuries. It was deposed that they all boarded in official vehicle and proceeded towards Civil Hospital Dera Allah Yar. It was further deposed that on arrival of witness at the spot, Faqir Muhammad (constable) told him that three unknown persons had fixed the bomb and had gone towards Shahi Chowki. ' In cross-examination, witness stated that after the blast no private person had reached at the spot in his presence, thereafter; they were shifted to hospital. Witness stated that he had gone to hospital on his motorcycle, while other persons were taken to hospital by Sub-Inspector Abdul Ghani; the witness had sustained simple injuries, as such, he was not admitted in the hospital; voluntarily stated that Allah Rakhia remained admitted in the hospital. It was stated that on the next day of incident, his statement was recorded. He denied the suggestion that Faqir Muhammad had not disclosed anything. He also denied that he had not visited the place of incident. He denied the suggestion that he has deposed falsely. It was stated that witness while recording his statement under section 161, Cr.P.C., had not stated that three unknown persons on fixing the bomb had proceeded towards Shahi Chowki. 'P.W.8 Abdul Ghani, Sub-Inspector Police Station Dera Allah Yar deposed that on 26th April, 2005, information was received that in front of MMD Office a bomb was fixed near railway track. On reaching the spot, bomb was found in a polythene bag lying with railway track, which was removed by Head Constable Allah Rakhia and kept the same on smooth surface, after few moments the bomb blasted, in result whereof; witness, Munawar Shah, Allah Rakhia, driver of MMD Office namely Abdul Sattar Bhangar and Bakhsh Ali sustained injuries. The injured persons were shifted to hospital, and; the I.P./S.H.O. Sent Murasla to police station and Soomar Khan Jamali was deputed as Investigating Officer. In the meantime, constable Faqir Muhammad stated that he had seen three persons fixing the bomb, whom he could identify, if seen. Witness stated that his shirt was taken into possession by police officials. ' In cross-examination, this witness admitted that none of the injured persons were unconscious. It was stated that firstly Murasla was prepared thereafter they were shifted to hospital. Witness stated that in the evening his statement was recorded in the hospital; apart from him, statements of Munawar Shah, Allah Rakhia, Abdul Sattar, and Bakhsh Ali were also recorded in Civil Hospital Dera Allah Yar.. He stated that in his statement under section 161, Cr.P.C. He had stated that police had taken into possession his shirt (confronted, not so recorded). He denied the suggestion that
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Faqir Muhammad had not told that he had seen three persons fixing the bomb. He also denied that the said information was given by one Sabir Ali. It was stated that on one side of the railway track, houses were situated; voluntarily stated that the houses were situated at a distance of one kilometer. He denied that he has deposed falsely. 'P.W.9 Bakhsh Ali, Head Constable (driver) D.P.O. Jaffarabad deposed that on 26th April, 2005, they were present at the residence of D.P.O.; an information was received that on backside of MMD Office, something was lying on railway track. It was further deposed that gunman of D.P.O. Namely Allah Rakhia had removed the bomb from railway track and kept the same on a…
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