IN THE HIGH COURT OF SINDH BENCH AT SUKKUR

Crl. Jail Appeal No.D-10 of 2017

Conf: Case No: 01 of 2017

Present:

Mr. JusticeNaimatullahPhulpoto.

Mr. Justice Zulfiqar Ali Sangi.

Appellants: Mohammad Ismail Appellant,through,Mr. Ali Gohar, Advocate.

ImtiazShaikh Appellant through,

Mr. Ayaz Ahmed Bhayo, Advocate.

Respondent: The State through,Zulfiqar Ali Jatoi,Add.P.G.

Date of hearing: 28.01.2020

Date of decision: 28.01.2020

J U D G M E N T

ZULFIQAR ALI SANGI, J:- Through instant Jail appeal, the appellants Mohammad Ismail and ImtiazShaikh, haveassailed the judgment dated26.01.2017 passedbylearnedJudge, Anti-Terrorism Court, Khairpur Mir’s in Special Cases No.24, 31 and 32of 2012 arising out of FIRs No.05, 10 of 2012 offence under section 302, 324, 364, 404, 120-B, 109, 149PPCand FIR No.11 of 2012 offence under Section 13(d)AO, 1965 registered at Police Station, SadiqKalhoro, whereby the appellants were convicted and sentenced as under;-

Appellant ImtiazShaikh, MourShaikh, and Abdul LatifGopang were convicted for offence u/s 302(b) PPC r/w section 149 PPC in Crime No.05/2012, and sentenced to the death penalty on 03 counts. They shall be hanged by their neck till they are death and further orders that all the accused persons shall pay the compensation as contemplated u/s 544-A Cr.P.C to the legal heirs of deceased PC Bashir Ahmed, Soobal and Gul Mohammad of Rs.2,50,000/- each in lieu of above deceased, total 7,50,000/- to each deceased and in case of default of payment of said compensation accused Mour, Imtiaz and Abdul Latif shall suffer further R.I. for six months each and if the compensation amount is recovered it shall be paid to the legal heirs of deceased in accordance with law.

Appellant/accused were further convicted for offence u/s 364 PPC r/w section 149 PPC in Crime No.05/2012 and sentenced them to suffer R.I for imprisonment for Life each and to pay the fine of Rs.50,000/- each. In case of default in payment of fine, they shall suffer further R.I for six months each.

They were further convicted for offence u/s 404 PPC r/w section149 PPC in Crime No.05/2012 and sentenced them to suffer R.I for three years each and to pay the fine of Rs.10,000 each.In case of default in payment of fine, to suffer further R.I for two months each.

Appellant/accused Mohammad Ismail was convicted for offence punishable u/s 120-B PPC r/w section 302(b) PPC, in crime No.05/2012 and sentenced to the death penalty on 03 counts. He shall be hanged by his neck till he is dead and it is further ordered that the accused Mohammad Ismail Shaikh shall pay the compensation as contemplated u/s 544-A Cr.P.C to the legal heirs of deceased PC Bashir Ahmed, Soobal and Gul Mohammad of Rs.2,50,000/- each in lieu of above deceased, total 7,50,000/- to each deceased and in case of default of payment of said compensation accused Mohammad Ismail shall suffer further R.I. for six months and if the compensation amount is recovered it shall be paid to the legal heirs of deceased in accordance with law.

Appellant/accused ImtiazShaikh was further convicted for offence punishable u/s 324 PPC r/w section 149 PPC in Crime No.10/2012 and sentenced him to suffer R.I for ten years and to pay the fine of Rs.25000/-. In case of default in payment of fine, he shall suffer further R.I for four months.

Appellant/accusedImtiazShaikh further convicted for offence punishable u/s 353 PPC r/w section 149 PPC in Crime No.10/2012 and sentenced him to suffer R.I for two years

Appellant/accused ImtiazShaikh further convicted for offence punishable u/s 399 PPC r/w section 149 PPC in Crime No.10/2012 and sentenced him to suffer R.I for ten years and to pay fine of Rs.25000/-. In case of default in payment of fine, he shall suffer further R.I for four months.

Appellant/accused ImtiazShaikh further convicted for offence punishable u/s 402 PPC r/w section 149 PPC in Crime No.10/2012 and sentenced him to suffer R.I for seven years and to pay fine of Rs.15000/-. In case of default in payment of fine, he shall suffer further R.I for two months.

Both appellants/accused ImtiazShaikhand Mohammad Ismail were further convicted for an offence punishable u/s 7 of ATA, 1997 and sentenced them death penalty on 03 counts. They shall be hanged by their neck till they are dead, subject to confirmation of this Court. Accused were further ordered to pay a fine of Rs.50,000/- 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.

All the sentences awarded to the appellants/accused were ordered to run concurrently with the benefit of section 382-B Cr.P.C.

2. Precisely, the prosecution case is that complainant lodged FIR at Police Station, SadiqKalhoroalleging therein that on 22.02.2012 at 1500 hours, complainant SIP/SHO Ghulam Abbas Shar lodged the report at Police Station SadiqKalhoro alleging therein that SPP NaushehroFeroze vide his order dated 30.01.2012 constituted a joint investigation team in respect of the abduction of foreigner Mr. Tom and his driver GadaHussain in crime No.13/2012 u/s 365-A PPC registered at Police Station, Bhirya City and he was members of the said team. On the day of incident i.e. 20.0.2012 complainant received spy information in respect of the presence of both the said abductees including other abductees who were under captivityat Camp of dacoit ShamooShaikh in District Khairpur. On receipt of such information, complainant after seeking permission from SSP NaushehroFeroze left Police Station along with his subordinate staff in private vehicle under roznamcha entry No.6 dated 20.02.2012 at 1230 hours towards the pointed place.

3. It is further alleged that when the Police party reached the village, Dost Mohammad, the vehicle was parked here by Police party and on the guidance of private persons/spy informers namely SoobalMallah and Gul Mohammad Mallah(now deceased) they proceeded towards the place of information, by foot.At about 1730 hours they reached in KettiMumtaz near Village ShamoonShaikh they saw and identified the accused namely 1. ShamoonShaikh, 2. Ali Gohar @ GoharShaikh, 3.AzizullahShaikh, 4. QurbanShaikh, 5. ZamirShaikh, 6. ImtiazShaikh, 7. ParvezShaikh all were armed with Kalashnikov, 8. GhulamShabirShaikh with G-3 rifle, 9.Mumtaz @ MumtooShaikh with KK, 10.Ranjhan @ RanjhooShaikh with KK, 11. Ismail Shaikh, 12. UsmanShaikh, 13. LatifGopang armed with KKs along with 5/6 unidentified accused persons were standing there. All the accused persons as soon as saw the Police party started firing at them with intent to kill them. Police parties also made firing in their retaliation. Such an encounter continued for about one hour. During encounter both the spy informers namely SoobalMallah and Gul Mohammad Mallah and PC Bashir Ahmed was overpowered by accused persons and accused persons forcibly abducted away them with intent to commit their murders and the accused persons kidnapped the said abductees towards the camp of dacoit NazrooNaarejo.

4. It is further alleged that later on complainant came to know that dacoits 1. NazrooNarejo, 2. MushtaqueNarejo, 3. PathanNarejo, 4.Bahadur @ BajooNarejo armed with G-3 rifles, 4. Khan Mohammad @ GooroNarejo, 5. ShahnawazNarejo and 6.SoobalNarejo armed with KKs have committed the murders of all the three abducted persons and had thrown out their dead bodies at BuriraPathan.Thereafter, the complainant along with a team of SSP NaushehroFeroze went there and found the dead bodies of PC Bashir Ahmed and two informers namely Soobal and Gul Mohammad Mallah who had sustained the firearm injuries. Thereafter, the complainant went to Police Station and lodged the FIR to the above effect.

5. Briefly, the facts of second main case are that on 12.04.2012 at 2200 hours, complainant ASI/SHO Syed Lutufullah Shah lodged the report at Police Station, SadiqKalhoro on behalf of State alleging therein that on the above said date i.e.1204.2012 he was present at Police Station and received spy information in respect of presence of accused Imtiaz along with his accomplices for the commission of offence at link road headquarter. Mourkalhoro wanted in Crime No.05/2012 under Sections 302, 364, 324, 353, 404, 120-B, 109 PPC of P.S SadiqKalhoro on receipt of such information, he along with his subordinate staff proceeded towards the pointed out place and reached there about 2000 hours and saw five accused persons and identified the accused on the torchlight as 1. ImtiazShaikh, 2. ShahnawazNarejo, 3. DeedarShaikh, 4. ShamoonShaikh and 5. Ali Gohar @ GohooShaikh all were standing armed with K.Kv and stood there for commission of offence and as soon as the police directed them to surrender with weapons then all the accused persons started straight firing upon the police party with intention to commit their murders and in retaliation, the police party also fired in their defense and the encounter continued for about 30 minutes and during encounter, they apprehended one of the accused ImtiazShaikh along with unlicencedK.Kov along with its magazine containing 10 live bullets while accused made their escape good from the place of incident.

6. It is also mentioned in the FIR that the Police made inquiry from the arrested accused who disclosed the names of said absconding accused persons and further disclosed that K.K was same which was used by him in the commission of offece/crime No.05/2012 u/s 302, 324, 353, 34, 404, 120-B, 109 PPC of P.S SadiqKalhoro and police party also inspected the place of incident which were fired from police side as well as from the side of accused persons and due to non-availability of private mashirs complainant made mashirs to ASI PirBuxMaitlo and C-Ali Nawaz Kalhoro and the same sealed at the spot in presence of said mashirs and prepared such mashirnamaand after completion of legal formalities Police brought the said accused and recovered property at P.S where complainant lodged FIR No.10/2012 against the said accused persons as narrated above.

7. The complainant also lodged separate FIR bearing Crime No.11/2012 u/s 13(d).A.O. against the saidarrest accused ImtiazShaikh on behalf of the State.

8. After the usual investigation, the police submitted challanagainst the appellant& other accusedbefore the competent Court of law. The learned trial Court completed all legal formalities and framedcharges against the appellants/accusedto which theypleaded not guilty and claimed trial.

9. In order to prove its case, the prosecution examined in all Ten witnesses who produced/exhibited certain documents before the trial court in order to prove the case of the prosecution.

10. After completion of prosecution evidence, learned trial court recorded statements of the appellants/accusedin terms of section 342 Cr.P.Cwherein they denied the prosecution case andclaimed their innocence, however neither they examinedthemselves on oath nor led evidence in theirdefense.

11. Thelearned trialCourt after hearing the Counsel for the appellants learned DDPP for the State and considering the evidence, passed impugned judgment, which has been assailed through instant appeal.

12. Learned counsel for the appellant Muhammad Ismail contended that appellant is innocent and involved by the police with mala fide intentions; that name of the appellant did not transpire in the FIR; that in the charge name of appellant not mentioned nor role is ascribed against him; that appellant was implicated in the present case through further statement of complainant which was recorded after three days of the incident; that appellant was in the police custody at the time of incident; that prosecution has failed to produce any evidence against the appellant Muhammad Ismail; Lastly, he prayed for acquittal of the appellant by giving him the benefit of the doubt.

13. Learned counsel of appellant Imtiaz after arguing appeal at some length did not press the appeal of the appellant Imtiaz on merits but submitted that his death sentence may be reduced to imprisonment for life on the grounds that there is no eye witness of the second episode of offence where three persons were murdered and the appellant is of young age having very big family and is capable for reformation.

14. Learned Additional Prosecutor General for the State submitted that prosecution has not produced any piece of evidence against the appellant Muhammad Ismail and further statement was recorded after three days of the incident wherein appellant was nominated but the same was not been proved during the evidence of all witnesses of the prosecution; that in the circumstances he has no objection if the appellant Muhammad Ismail is acquitted in the case. Learned Addl: P.G submitted that prosecution has proved its case against the appellant Imtiaz by producing trustworthy and reliable evidence; that recovery of KK was effected from the possession of appellant Imtiaz; that the empties recovered from the place of wardat where the dead bodies of deceased were lying were sent to the expert along with KK recovered from the appellant which were matched and such report is exhibited in the evidence; that appellant was arrested during the encounter at the spot; that appellant was identified by the police party at the place of wardat of the first episode of kidnapping of there police personnel; that prosecution has proved the case against the appellant Imtiaz beyond reasonable doubt. Lastly,conceded tothe conversion of the sentence of death tothe imprisonment of life, in view of the grounds taken by the learned counsel for the appellant ImtiazShaikh.

15. We have heard learned Counsel for the parties and have examined the record carefully with their able assistance.

16. Admittedly,the name of appellant Muhammad Ismail did not transpire in the FIR and the same was introduced in the further statement recorded on 23-02-2012 wherein the complainant nominated the appellant but no CDR or any proof was produced in support of the said further statement. We also scanned entire evidence of the prosecution witnesses and found no evidence against the appellant Muhammad Ismail Addl: P.G has rightly given no objection for the acquittal of the appellant Muhammad Ismail. We have come to the conclusion that prosecution utterly failed to prove its case against appellant Mohammad Ismail, therefore, for want of evidence appellant Mohammad Ismail is acquitted from the charges. He shall be released forthwith if not required in some other case.

17. Turning to the case of appellant ImtiazShaikh, his appeal is not pressed by the learned counsel on merit and he prays for reduction of the sentence of death tothe imprisonment for life, in these circumstances we are not inclined to discuss the entire evidence minutely.

18. P.W-1, GhulamAbbass who was the eye witness of incident deposed before trial court that he identified accused ImtiazShaikh along with others and saw them firing upon police party with intention to kill and police also fired in the defense and during firing one bullet blocked in the G-3 rifle of PC Bashir Ahmed then police party changed position. During the changing of positions, accused persons kidnapped PC Bashir Ahmed and informers Gul Muhammad Mallah and SoobalMallah towards the jungle,with the intention to kill them.

19. P.W 5, GhulamHyderhas supported the version of PW-1 and deposed that he identified accused Imtiaz along with others at the time of the first incident wherein during firing one of the bullets jammed in the rifle of PC Bashir Ahmed Jamrowho to changing his position but accused person abducted PC Bashir Ahmed Jamro along with two other private persons namely Soobal and Gul Muhammad towards Katcha area. From the evidence of these both eyewitnesses it has been proved that accused Imtiaz along with others had abducted PC Bashir Ahmed, Gull Muhammad Malah and SoobalMallah.

20. P.W 3, PirBakhsh deposed that on 22-02-2012 on information about the availability of accused required in crime No. 05/2012 they were available at link road Head Quarter MoarKalhoro and such information was disclosed to him by SHO. Thereafter, he proceeded towards the pointed place and saw on the light of torch five persons were available who were identified as ImtiazShaikh, DeedarShaikh, Ali GoharShaikh, ShahnawazNarejo and ShamooShaikh,they were armed with Kalashnikovs. They started firing upon police party, police party fired in defence. After seize fire police party apprehended accused ImtiazShaikh at the spot and recovered one Kalashnikov from his possession and other accused succeeded to run away to the western side of the jungle. His evidence was supported by PW Syed Lutufullah Shah who by supporting the version of this witness also deposed that he secured 15 empties of Kalashnikovs which were fired from the accused side, 10 empties of G-3 rifle so also 10 empties of SMG which were fired from the police side.

21. P.W 6, Ali Hassan has deposed before trial court that on 21-02-2012 he along with his superiors proceeded towards BuriraPattan where they saw three dead bodies of PC Bashir Ahmed, Muhammad Soobal and Gul Muhammad alias Gullan which were handed over to him for their postmortem and he shifted the same to Gambat hospital for the same purpose. After the post mortem doctor handed over to him last worn clothes of all deceased and he handed over the dead bodies of all the deceased to their legal heirs. He further deposed that on 22-02-2012 he visited place of incident along with I.O MohsinRazaJandan on pointation of complainant SIP Ghulam Abbas where from I.O secured blood stained earth and 20 empties of G-3, 25 empties of KK which were fired from accused side and Investigation Officer also collected 15 empties of G-3 and 25 empties of KK which were fired from the police side. I.O sealed the recovered property in his presence and presence of PC Muhammad Khan and such a memo was prepared.

22. PW- 7, Sikandar Ali deposed that on 21-02-2012 at about 11.00 p.m he received a message from SIP Ghulam Abbas Shar that during the investigation of crime No. 13/2012 of Police Station NaushehroFeroze he reached at BuriraPattan where the encounter took place between accused persons and police party and PC Bashir Ahmed and two private persons namely Muhammad Soobal and Gul Muhammad had been killed by the firing of dacoits. On such information, he immediately kept entry No.5 at his police station thereafter he along with PC Raza Muhammad Shah, PC Ali Hassan and PC GhulamHyder left on private vehicle towards pointed place where the reached at 12 pm(midnight) and saw three dead bodies of PC Bashir Ahmed, Muhammad Soobal and Gul Muhammad. He prepared Danishnamas of all three dead bodies in presence of PC Ali Hassan and PC Raza Muhammad Shah. He also issued referring letters of three dead bodies and sent the dead bodies through PC Ali Hassan towards Hospital. He visited the place of incident where this encounter took place and prepared mashirnama of the place of incident. He secured blood-stained earth of all three deceased and sealed separately. He also secured 8 empties of G-3 and 10 empties of Kalashnikovs which were also sealed at the spot by him.

23. From the above discussion,the prosecution has proved its case that accused ImtiazShaikh was identified by PWs duringthe first episode where from three persons were kidnapped and again he was identified at the place wherefrom three dead bodies were recovered and the prosecution established that he was arrested at spot during firing and recovered Kalashnikov from his possession. The recovery of Kalashnikov and empties from the place wherefrom dead bodies were recovered were sent to Forensic Science Laboratory, Forensic Division Larkana and according to report of said laboratory, the same recovered empties were matched with the recovered Kalashnikov from appellant ImtiazShaikh. The opinion of the ballistic expert is reproduced as under;

OPINION The Microscope examination of case has revealed as under;

1. Eighteen 7.62mm bore crime empties now marked as “C3.C4.C8,C9,C20,C21,C31,C36,C38,C40to C43, C64,C69, C70,C77 and C78”were FIRED from the above mentioned 7.62mm bore (SMG) Rifle No. w/o in question in view of the following major points i.e striker pin marks, breech face marks, ejector marks and chamber marks etc. are similar.

2. Thirty two 7.62mm bore crime empties now marked as “C1.C2.C5 to C7,C10,C19,C22 to C30,C32 to C35, C37 to C39, C65 to C68, C71 to C76 were NOT FIRED from the above mentioned 7.62mm bore (SMG) Rifle No. w/o in question in view of the following major points i.e striker pin marks, breech face marks, ejector marks and chamber marks etc. are Dissimilar.

3. Twenty eight 7.62mm (G-3) bore crime empties now marked as “C11 to C18 and C4 to C63 are fired empties of 7.62mm (G-3) bore fire arm weapon.

Note. One 7.62mm bore test empty is being sent in the sealed parcel of the above mentioned fire arm.

24. This piece of evidence fully connected the appellant with the commission of the offence and he was rightly convicted by the trial Court.

25. As regards to the evidence of unlawful assembly and preparation for committing robbery have not been proved by cogent evidence for the reasons that place where incidents have shown, were not aBazzar, Bank or other populated area for which they had assembled for the committing dacoity so also the prosecution has not produced any evidence about the conspiracy against the accused persons for committing offence. Not a single witness deposed a single word that accused persons firstly made conspiracy for committing an offence. In these circumstances in our view, the prosecution has failed to prove its case for offences under sections 399, 402, 404, 109, 120-B.Therefore, convictionsrecorded by the trial court for these,offences are set-aside while the prosecution has established its case against appellant Imtiaz Ali for kidnapping and committing the murder of three persons as well as recovery of Kalashnikov during the encounter with police as has been discussed above.Therefore,by considering all the above evidence particularly there wasonly circumstantial evidence with regard to murders, the death sentence awarded to appellant ImtiazShaikhby the trial court is altered into the imprisonment of life. His conviction under section302 r/w Section 149 and 7ATA, 1997 is converted into imprisonment for life on three counts. Confirmation Reference made by the trial Court is answered in negative. Conviction and sentence recorded by trial Court in crime No.10/2012 for offences punishable u/s 364, 324, 353 r/w Section 149 PPC and 7ATA, 1997 are maintained. The charges against appellant Imtiaz for offences punishable u/s 404, 120-B, 109 399 and 402 PPC are not proved.Therefore, conviction and sentencesof appellant Imtiaz for offence u/s 404, 120-B, 109, 399 and 402 PPC are set-aside. A conviction for offence under section 13 (d)AO, 1965 in crime No: 11 of 2012 is also maintained. Appellant Imtiaz shall pay compensation of Rs.50,000/- to the legal heirs of each deceased as ordered by the trial Court.In case of the default thereof, he shall suffer S.I. for 06 months each instead of R.I for 06 months. Fine imposed by this Court, in sections in which conviction is maintained by this Court, shall remain intact. All the sentences are ordered to run concurrently,Appellant ImtiazShaikhis extended benefit of section 382-B, Cr.P.C. Confirmation reference made by the trial Court is answered in negative.

26. In the above terms, the jail appeal No.D-10 of 2017 and confirmation reference No. 01 of 2017 are disposed of. These are the reasons for our following short order dated 28.01.2020.

28.01.2020

For the reasons to be recorded later on, appellant Muhammad Ismail son of Muhammad ParyalShaikh is acquitted from the charges in Sessions Case No.24/2012 State Vs. Muhammad Ismail and others bearing Crime No.05/2012 registered at Police Station SadiqKalhoro, District Khairpur Mir’s for the offences punishable under Sections 302, 324, 353, 364, 404, 120-B, 109 & 149 PPC read with section 7 ATA, 1997 and Crime No.10/2012 registered at Police Station SadiqKalhoro, District Khairpur Mir’s for the offences punishable under Sections 324, 353, 399, 402, 147, 148 & 149 PPC R/W Section 7 ATA, 1997. Appeal filed by appellant Muhammad Ismail son of Muhammad Paryal is allowed. Confirmation Reference sent by trial Court regarding appellant Muhammad Ismail is answered as negative. Appellant Muhammad Ismail shall be released forthwith, if not required in any other custody case.

2. Mr. Ayaz Ahmed Bhayo advocate for appellant Imtiaz son of Mir Shaikh did not press appeal of appellant Imtiaz on merit and prayed for reduction of death sentence to imprisonment for life, therefore, Criminal Jail Appeal No. D-10/2017 to the extent of appellant Imtiaz S/o Mir Shaikh is dismissed to the extent of his conviction. However, death sentence awarded to appellant ImtiazShaikh U/S 302(b) PPC on three counts in Crime No.05/2012 registered at Police Station SadiqueKalhoro for the offences punishable under Sections 302, R/W Section 149, PPC R/W Section 7 ATA, 1997 is converted into imprisonment for life on three count. Confirmation Reference made by trial Court is answered in negative. Conviction and sentence recorded by trial Court in crime No.10/2012 for offences punishable U/Sections 364, 324, 353 read with section 149 PPC and 7 Anti-Terrorism Act, 1997 are maintained. However, charges against appellant Imtiaz for offences punishable under Sections 404, 120-B, 109, 399 and 402 PPC are not proved, therefore, conviction and sentence of appellant Imtiaz for offences under Sections 404, 120-B, 109, 399 and 402 PPC are set aside. Appellant Imtiaz shall pay compensation of Rs.50,000/- to the legal heirs of each deceased as ordered by the trial Court. In case of the default thereof, he shall suffer S.I for 06 months instead of R.I for 06 months. Fine imposed by the trial Court, in sections which conviction is maintained by this Court, shall remain intact. All the above sentences awarded to appellant ImtiazShaikh shall run concurrently. Appellant ImtiazShaikh shall be entitled to the benefit of Section 382-B Cr.P.C. Conviction and sentence recorded against appellant Imtiaz in crime No.11/2012 of Police Station SadiqueKalhoro under section 13(d) Arms Ordinance is also maintained.

In the view of above, Criminal Jail Appeal No.D-10/2017 and Confirmation Reference No. D-01/2017 are accordingly disposed of.

J U D G E

J U D G E