HIGH COURT OF SINDH AT KARACHI

Special Criminal Anti-Terrorism Appeal No.08 of 2010

Special Criminal Anti-Terrorism Confirmation Case No.08 of 2010

                        Present:         

Naimatullah Phulpoto, J.

Rasheed Ahmed Soomro, J.

Appellants:                      Muhammad Kamran son of Muhammad Yousuf and Muhammad Farhan son of Faqir Muhammad through Mr. Abdul Razzak, Advocate

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Respondent:                   The State through Mr. Muhammad Iqbal Awan, Deputy Prosecutor General Sindh. 

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Date of hearing:              07.08.2018

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J U D G M E N T

NAIMATULLAH PHULPOTO, J.- Appellants Muhammad Kamran alias Kamoo and Muhammad Farhan alias Goal alias Shani were tried by learned Judge, Anti-Terrorism Court-I, Karachi Division in Special Case No.35 of 2006. Vide judgment dated 25.02.2010 appellants were convicted under section 7(a) of the Anti-Terrorism Act, 1997 read with section 302/34, PPC and sentenced to death and to pay fine of Rs.500,000/- each, of which 50% shall be paid to the legal heirs of the deceased as required under section 544-A, Cr.PC. In case of default in payment of fine both the accused were ordered to suffer R.I. for 2 years more. Death sentence of the appellants was subject to confirmation by this Court as required under section 374, Cr.PC. Trial court has made reference to this Court for confirmation of the death sentence or otherwise.

2. According to the case of the prosecution, on 12.10.2006 at about 2200 hours appellants/accused Muhammad Kamran alias Kamoo and Muhammad Farhan alias Goal alias Shani in furtherance of their common intention fired with 9MM pistol to P.C. Muhammad Ishaq and P.C. Muharram Ali of P.S. Shah Latif Town on PMTF Road, opposite Shah Latif Town, Karachi. Both police constables were in police uniform and were on patrolling duty. Both the injured succumbed to the injuries and FIR of the incident was lodged vide Crime No.285/2006 under sections 302/34, PPC read with section 7(a) of the Anti-Terrorism Act, 1997 at P.S. Shah Latif Town, Karachi. After usual investigation, challan was submitted against the accused under the above referred sections before learned Judge, Anti-Terrorism Court, Karachi Division.

3. Trial court framed charge against both the accused under the above referred sections at Ex.6. Accused pleaded not guilty and claimed to be tried.

4. At trial, prosecution examined in all twelve prosecution witnesses. Thereafter, prosecution side was closed.

5. Trial court recorded statement of accused under section 342, Cr.PC in which accused claimed false implication in this case and denied the prosecution allegations.

6. Trial court after hearing the learned counsel for the parties and assessment of the evidence available on record vide judgment dated 25.02.2010 convicted and sentenced the appellants as stated above, hence this appeal.

7. Mr. Abdul Razzak appearing on behalf of the appellants before arguing the appeal on merits pointed out that according to the prosecution evidence postmortem examination report of deceased PC Muharram Ali has not been produced by the prosecution. Mr. Muhammad Iqbal Awan, learned D.P.G. concedes that the postmortem examination report of P.C. Muharram Ali has not been produced in evidence by the concerned medical officer and appellants have been convicted and sentenced to death. It is jointly prayed for remand of the case to the trial Court for recording the evidence of the concerned medical officer for producing the postmortem report of deceased PC Muharram Ali.

8. In view of the above legal position, for just decision of case, production of postmortem report of PC Muharram Ali is requirement of law. Therefore, conviction and sentence recoded by the trial court are not sustainable under the law, the same are set aside. Consequently, the appeal is allowed to that extent, the case is remanded back to the trial court with direction to record evidence of the concerned medical officer for producing the postmortem report of P.C. Muharram Ali by providing a fair opportunity to accused persons for cross-examination. Thereafter, statement of both the accused shall be recoded by the trial court under section 342, Cr.PC. After hearing the counsel for the parties, a fresh judgment shall be passed by the trial court within two months in accordance with law. Reference made by the trial court for confirmation of death sentence of both the appellants is answered in negative. Counsel for the parties are directed to appear before the trial Court on 16.08.2018 for recording evidence of concerned medical officer for producing postmortem report of deceased P.C. Muharram Ali.

J U D G E

J U D G E

Gulsher/PS