IN THE HIGH COURT OF SINDH, BENCH AT
SUKKUR
Criminal Appeal No. D - 05 of
2015
Before:-
Mr.Justice Muhammad Iqbal Mahar
Mr.Justice Irshad Ali Shah
Appellant: Muhammad
Ameen Jagirani, through
Mr. Muhammad Rehan Khan Durrani, Advocate
Complainant : Ghulam
Akbar, through Mr.Fayaz
Ahmed Soomro,
Advocate
The State : Through Mr. Aftab
Ahmed Shar, Addl:P.G
Date of hearing
: 15.01.2019
Date of decision
: 15.01.2019
J U D G M E N T
IRSHAD
ALI SHAH, J:- The appellant by way of instant
Criminal Appeal has impugned judgment dated 17.01.2015, passed by learned Judge
Anti-Terrorism Court Khairur, whereby the appellant has been convicted and sentenced as
under:-
(i)
“the prosecution has proved its case against
the accused namely Muhammad Ameen Jagirani
for the offences under section 148, 302 PPC, section 7(a) of ATA, 1997 and
section 13(e) Arms Ordinance and he is liable to be punished for the charge for
an offence punishable under section 148 PPC and I award sentence him to suffer
R.I for three years and to pay the fine of Rs.10,000/- (Rupees ten thousand)
and in case of default in payment of fine he shall suffer further R.I for four
months. I also convict the above named accused for an offence punishable U/s 302(b)
R/w Section 149 PPC and sentenced him death penalty. He shall be hanged by neck
till he is dead, subject to confirmation of death sentence by the Honourable
High Court of Sindh Bench at Sukkur and it is further
ordered that the compensation as contemplated under section 544-A Cr.P.C is awarded to pay the legal heirs of the deceased Ghulam Sarwar Jatoi,
of Rs.2,50,000/- (Rupees two lac fifty thousand) in lieu of deceased and in
case of default in payment of said compensation the accused Muhammad Ameen Jagirani shall suffer
further R.I for six months and if the compensation amount is recovered it shall
be paid to the legal heirs of the said deceased in accordance with law. I also
convict the abovenamed accused Muhammad Ameen Jagirani for an offence
punishable under section 13(e) Arms Ordinance and sentence him to suffer RI for
07 years and also to pay fine of Rs.20,000/- and in case of default in payment
of fine he shall suffer further RI for 02 months.
(ii)
I also convict the accused Muhammad Ameen Jagirani for an offence
punishable under section 7(a) of ATA, 1997 and sentence him death penalty. He
shall be hanged by his neck till he is dead, subject to confirmation of death
sentence by the Honourable High Court of Sindh Bench at Sukkur.
Accused is further ordered to pay fine of Rs.2,50,000/-
(Rupees two lac fifty thousand) and in case default thereof he shall suffer
further RI for two years.”
2. The conviction and sentence awarded to
the appellant however, were ordered to run concurrently with benefit of section
382-B Cr.P.C.
3. The facts in brief necessary for disposal
of instant criminal appeal are that the appellant with rest of the culprits
allegedly after having formed an unlawful assembly in prosecution of their common
object put an attempt to abduct Ghulam Sarwar Jatoi and on his
resistance fired and killed him by way of resorting to terrorism for that the
present case was registered against him and others. On investigation the
appellant was arrested and from him was secured unlicenced
Kalashnikov and magazine with three live bullets and he accordingly was reported
upon by the police.
4. At
trial, the appellant did not plead guilty to charge and the prosecution to
prove it, examined PW-01 Medical Officer Dr.Hifzu-Rehman
Soomro (Exh.13), he produced postmortem report on the
dead body of the said deceased together with entire ancillary documents, PW-02 SIP
Habibullah Rajper (Exh.16),
he produced inquest report on the dead body of the said deceased, memo of
examination of the said deceased, letter which he written to medical officer
for conducting postmortem on the dead body of the said deceased and memo of
recovery of the clothes of the said deceased, PW-03 PC Abdul Sattar (Exh.17), he produced receipt whereby he delivered
the dead body of said deceased to his legal heirs, PW-4 Mr. Din Muhammad Magsi (Exh.18), he produced confessional statement of the
appellant, PW-05 ASI Manzoor
Hussain (Exh.19), he produced copy of FIR Cr.
No.132/2011 of Police Station Baberloi, and roznamcha entry No.24 dated 4.10.2011 of Police Station Baberloi, PW-6 Tapedar Zaheer Ahmed (Ex.20), he produced sketch of place of
incident, PW-7 Inspector Muhammad Ameen Pathan (Ex.22), he produced mashirnama
of place of incident, letter to Mukhtiarkar for
preparation of sketch of vardat, letter to SSP Khairpur for dispatching the
clothes of the deceased and earth to the Chemical Examiner, memo of arrest of
the appellant and recovery of motorcycle and Kalashnikov, FIR Cr. No.135/2011
under Section 13(e) Arms Ordinance of Police Station Baberloi,
letter to SSP Khairpur for
dispatch of kalashnikov to expert for his opinion, reports of Chemical Examiner
and Ballistic Expert, his application addressed to Civil Judge and Judicial
Magistrate Pir-Jo-Goth for recording confessional
statement of the appellant and then closed the side.
5. The
appellant during course of his examination u/s 342 Cr.PC
denied the prosecutions’ allegation by pleading innocence by stating that on
04.10.2011 when he was going back to his village on motorcycle after selling
the milk, when crossed Phuloo hotel there at about
5:00 p.m came two persons, one caused him lathi blow, resultantly he fell-down from his motorcycle
and then other person fired upon him and such fire he sustained on his chest
and then he was taken to police station, but his FIR was not recorded and then
was involved in this case falsely. He did not examine himself on oath and
wanted to examine DWs Noor Khan and Raheem Ali in his defence but
failed to examine them and then closed his side.
6. Learned
trial Court on evaluation of evidence so produced by the prosecution, convicted
and sentenced the appellant as detailed above and then made the Reference in
terms of Section 374 Cr.P.C for confirmation of death
sentence.
7. The
appeal so preferred by the appellant and reference so made by learned trial
Court now are being disposed through instant judgment
8. It
is contended by learned counsel of the appellant that the appellant being
innocent has been involved in this falsely by the police, neither the
complainant nor any of his witness was examined by the prosecution to prove its
case, yet learned trial Court has convicted and sentenced the appellant to
maximum extent without lawful justification on the basis of confessional
statement of the appellant which was neither true nor voluntarily. By
contending so, he sought for acquittal of the appellant.
9. Learned
Addl:P.G for the State and learned counsel for the
complainant were fair enough to contend that the appellant has been denied the
right of fair trial on account of failure of the prosecution to examine the
complainant and his witnesses. By contending so, they sought for remand of the
matter with direction to learned trial Court to decide the case afresh after
recording evidence of the complainant and his witnesses.
10. Learned
counsel for the appellant when confronted with the above proposal so advanced
by learned Additional PG and learned counsel for the complainant readily
accepted the same.
11. We
have considered the above arguments and perused the record.
12. Admittedly, the complainant and his
witnesses have not been examined by the prosecution to prove its case and in
that way the appellant has been prejudiced seriously in his defence,
which is against the mandate of fair trial which is guaranteed by Article
10-A of the Constitution of the Islamic Republic of the Pakistan 1973, which
reads as under:-
“10(A)
Right to fair trial. For the determination of his civil rights and
obligation or in any criminal charge against him a person shall be entitled to
a fair trial and due process.”
13. In
above circumstances, the sentence of death awarded to the appellant mainly on
the basis of his confessional statement could not be sustained. Consequently,
the impugned judgment is set aside and case is remanded to learned trial Court
with direction to pass fresh and appropriate judgment after recording evidence
of complainant and his witnesses.
14. The
instant criminal appeal and Reference stands disposed of in above terms.
Judge
Judge
ARBROHI