IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Criminal Jail Appeal No. D -123 of 2017

Confirmation Case No. D- 06 of 2017.

Before:-

Mr. Justice Muhammad Iqbal Mahar

Mr. Justice Irshad Ali Shah

Appellants : 1. Ali Gul s/o Muhammad Bachal Kaleri.

2. Ali Muhammad @ Allan s/o Muhammad Bachal Kaleri.

3. Pervaiz s/o Hoat kaleri.

Through Mr. Syed Ali Aamir Shah, advocate.

The State : Through Khalil Ahmed Maitlo,

Deputy Prosecutor General

Date of hearing : 14-05-2019.

Date of decision : 14-05-2019.

JUDGMENT

Irshad Ali Shah, J; The appellants by preferring instant Criminal Jail Appeal have impugned judgment dated 06-09-2017 passed by learned Anti Terrorism Court Khairpur, Mirs, whereby they have been convicted and sentenced as under;

" I convict the accused Ali Gul, Ali Muhammad @ Allam and Pervez for the offence punishable under section 148 PPC and sentence them to suffer R.I for three years each and to pay the fine of Rs. 10,000/-each and in case of default in payment of fine, they shall suffer further R.I for two month each. I, further convict all the above named accused persons for the offence punishable under section 396 r/w Section 149 PPC and sentence them death penalty each. They shall be hanged by their neck till they are dead and it is further ordered that all the above named accused persons shall pay the compensation as contemplated under section 544-A Cr.P.C to the legal heirs of the deceased Mukhtiar Ahmed son of Yar Muhammad, of Rs. 2,50,000/- (Rupees Two Lac fifty thousand) each in lieu of above named deceased, total Rs. 7,50,000/- (Rupees seven Lac fifty thousand) and in case of default of payment of said compensation the accused 1. Ali Gul, 2. Ali Muhammad @ Allan and 3. Pervez shall suffer further S.I for six months each 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 above named accused persons for the offence punishable under section 397 r/w Section 149 PPC and sentence them to suffer R.I for seven years each. I also convict the above named accused persons for the offence punishable under section 324 r/w Section 149 PPC and sentence them to suffer R.I for ten years each and to pay the fine of Rs. 25,000/- each. In case of default in payment of fine they shall suffer further R.I for four months each. I also convict all the above named accused persons for the offence punishable under section 353 PPC r/w Section 149 PPC and also sentence them to suffer R.I for two years each. I also convict the above named accused persons for the offence punishable under section 427 r/w section 149 PPC and sentence them to suffer R.I for two years ach and to pay fine of Rs. 10,000/- each. In case of default in payment of fine, they shall suffer further R.I for two months each.

I also convict the above named accused 1. Ali Gul, 2. Ali Muhammad @ Allan and 3 Pervez for the offence punishable under section 7 of ATA, 1997 and sentence them death penalty each, they shall be hanged by their neck till they are dead, subject to confirmation of death sentence by Honourable High Court of Sindh Bench at Sukkur. Accused are further ordered to pay fine of Rs. 50,000/- (rupees fifty thousand) each and in case of default thereof they shall suffer further R.I for six months each and if the fine is recovered, be deposited in Government Treasury."

2. The facts in brief necessary for disposal of instant appeal are that the appellants with rest of the culprits were found robbing the passengers of Shalimar Coach by police party of PS Gambat led by ASI Ghulam Sarwar Samo and were identified by them under the lights of vehicles to be appellants and others, they were armed with deadly weapons, they were asked to surrender on that they fired at the above said police party with intention to commit their murder, during course whereof, one passenger named Mukhtiar and police constable Muhammad Bachal sustained fire shot injuries, they were referred to Hospital at Gambat, from Gambat they were referred to Civil Hospital Sukkur. In the meanwhile, injured Mukhtiar was taken to Hira Medical Centre Sukkur, where he died. The police mobile also sustained damage. The present case was registered accordingly. The appellants on arrest were reported upon to by the police to face trial for the above said offence.

3. At trial, the appellants did not plead guilty to the charge and prosecution to prove it examined PW/1 ASI Ghulam Sarwar Samor at (Ex. 07), PW/2 PC Muhammad Bachal Kanasro at (Ex. 08), PW/3 PC Abdul Latif Junejo at (Ex. 09), he produced the memo of inspection of place of incident and blood stained earth as well as securing the empties, memo of inspection of damaged police mobile, PW/4 PC Waheed Ali Jatoi at (Ex. 11), PW/5 Dr. Anees Ahmed at (Ex. 14), he produced the provisional medico legal certificate of injury Mukhtiar Ahmed, referral letter of said injured to Civil Hospital Sukkur, medical certificate of injured PC Muhammad Bachal, PW/6 Tapedar Shamsuddin ghumro at (Ex. 15), he produced sketch of place of incident, PW/7 DSP Altaf Hussain Burdi at (Ex. 16), he produced the letter issued to SSP Khairpur Mirs for seeking permission for sending the blood stained earth of deceased to the chemical laboratory and its chemical report, letter issued to concerned Mukhtiarkar for preparation of sketch of place of incident, PW/8 Dr. Ghulam Rasool Shaikh at Ex. 17, he produced the death report of deceased Mukhtiar Ahmed and PW/9 ASI Qadir Bux Shar at Ex. 18, he produced the roznamcha entries, memo of arrest of accused Pervez, thereafter learned DDPP closed his side vide his statement at Ex. 19.

4. The appellants in their statements recorded u/s 342 Cr.PC denied the prosecution allegation by pleading innocence, they did not examine themselves on oath or any on in their defence but produced certain documents to prove their innocence.

5. On conclusion of the trial, the appellants were convicted and sentenced (as is detailed above) by learned trial Court and then a Reference was made by learned trial Court with this Court in terms of Section 374 Cr.P.C for confirmation of their death sentence.

6. Now both, the appeal which is preferred by the appellants and the Reference which is made by learned trial Court are being disposed of by this Court through single judgment.

7. It is contended by learned counsel for the appellants that they being innocent have been involved in this case falsely by the police; their identity at night time under the light of vehicles is weak piece of evidence; the FIR of the incident has been lodged with delay of nine hours, which is not explained plausibly, no specific injury to the deceased or injured is attributed to the appellants, no crime weapon is secured form the appellants even on their arrest, there is no independent witness to the incident; and the evidence which is produced by the prosecution being doubtful has been believed by learned trial court without lawful justification. By contending so, he sought for acquittal of the appellants.

8. Learned DPG for the State has sought for dismissal of the instant appeal by contending that the appellant have rightly been convicted by learned trial Court on the basis of very cogent reasons.

9. We have considered the above arguments and perused the record.

10. The FIR of incident has been lodged with delay of about nine hours. No plausible explanation to such delay has been offered by the prosecution, same as such could not be over looked. Indeed it reflects consultation and deliberation. The identity of the appellants and others under the light of vehicles is weak piece of evidence. Surprisingly PW Muhammad Bachal who was able to identify the culprits at night time with their partners under the light of vehicle at the time of incident was not able to identify any of the appellant by their name specifically during course of his examination. If it is believed, that, during course of incident deceased Mukhtiar and Pw Muhammad Bachal sustained fire shot injury during the course of incident then there could be made no denial to the fact that no injury to the deceased or PW Muhammad Bachal is attributed to any of the appellant specifically. SIO/SIP Altaf Hussain was fair enough to admit that “he did not record statement of driver and cleaner of the coach, such coach is not made case property of the present case and no post mortem was arranged on the day of dead body of deceased Mukhtiar”. If it was so, then it was casual investigation of the case on his part. The sketch of wardat which is produced by tapedar Shamsuddin take no mention of the availability of the complainant and witness at the place of incident. The police mobile which allegedly sustained damage during course of the incident has not been produced by the prosecution at trial. No recovery of any sort is made from the appellants on their arrest. In these circumstances it would be very hard to maintain the conviction and sentence which are recorded against the appellants by learned trial court. What to talk of confirmation of their death sentence.

11. In case of Mehmood Ahmed & others vs. the State & another (1995 SCMR-127), it has been observed by the Hon'ble Apex Court that;

"Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate".

12. In case of Tarique Pervez vs. The State (1995 SCMR 1345), it has been held by Hon'ble Apex Court that;

"For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt- if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."

13. In view of the facts and reasons discussed above, impugned judgment is set-aside, consequently the appellants are acquitted of the offence for which they were charged, tried and convicted by learned trial Court; they are in jail, they to be released forthwith, if not required in any other custody case.

The Criminal Jail Appeal and the Reference are disposed of accordingly.

Judge

Nasim/PA