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