IN THE HIGH COURT OF SINDH, BENCH AT SUKKUR

Special Anti-Terrorism Appeal No. D -53 of 2015.

Confirmation Case No. D- 06 of 2015.

 

Before:-

                                                            Mr. Justice Khadim Hussain, Tunio,

                                                            Mr. Justice Irshad Ali Shah

 

Appellant                 :           Abdul Jabbar @ Jabi s/o Wahid Bakhsh @   

Badshah, Korai bycaste.

(Confined at Central Prison Sukkur).

 

Through M/s Ghulam Murtaza Korai and Khan Muhammad Sangi, advocates.

The State                 :           Through Shafi Muhammad Mahar,

                                                Deputy Prosecutor General.

 

Date of hearing     :           04-05-2021.             

Date of decision    :           04-05-2021.                         

 

J U D G M E N T.

Irshad Ali Shah, J; The facts in brief necessary for disposal of the instant Criminal Appeal and Reference u/s 374 Cr.P.C are that complainant PC Meenhon Khan and PC Muhammad Ali while on duty at National Highway adjacent to bus stop village Kouro Khan, were deterred from discharging their lawful duty as public servants allegedly by the appellant and others by robbing them of their official weapons and during course of such robbery, PC Muhammad Khan died after sustaining fire shot injuries allegedly at the hands of appellant and others and then they made their escape good by making fires at complainant PC Muhammad Ali with intention to commit his murder too, for that they were booked and reported upon by the police.

2.         At trial, the appellant and co-accused Atta Muhammad @ Mithal, Altaf and Wahid Bux @ Badshah did not plead guilty to the charge and prosecution to prove it, examined complainant PC Meenhon Khan and his witnesses and then closed its side.

3.         The appellant and the said co-accused 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. However, they produced certain documents to prove their innocence.

4.        On conclusion of the trial, the said co-accused were acquitted while the appellant was convicted and sentenced by learned District & Sessions/Judge Anti-Terrorism Court Sukkur as under;

“a) For committing offence u/s 302(b) PPC, he is sentenced to be hanged by his neck till his death.

b) For committing offence u/s 353 PPC, he is convicted and sentenced to suffer R.I for two years with fine of Rs. 5000/- and in default of payment of fine, he shall suffer S.I for three months more.

c) For committing offence u/s 7(1)(a) of A.T.A, 1997, he is convicted and sentenced to suffer punishment of death and he be hanged by his neck till his death.

d) For committing offence u/s 7(1)(h),97, he is convicted and sentenced to suffer R.I for imprisonment of life with fine of Rs. 50,000/-”.

5.         The appellant by preferring the instant appeal has impugned the conviction and sentence awarded to him, while learned trial Court has made a reference in terms of section 374 Cr.P.C for confirmation of death sentence to the appellant.

6.        Heard learned counsel for the parties.

7.         On perusal of record, it transpired that PW Nawab Ahmed was never recalled by learned trial Court to be cross examined by the appellant, which has prejudiced the appellant in his defence seriously, which is against the mandate contained Under Article 10-A of Constitution of Islamic Republic of Pakistan, 1973, which prescribes fair trial to every citizen. No question has been put to the appellant to have his explanation on reports of chemical examiner and ballistic expert, which has occasion and failure of justice and same could not be cured in terms of section 537 Cr.P.C.

8.        Learned counsel for the parties, when were confronted with the above said omissions/illegalities were fair enough to consent for remand of the matter for fresh decision in respect of the appellant.

9.        In view of above, the instant Crl. Appeal and reference were disposed of on 04-05-2021 in terms of short order dated 04-05-2021, which reads as under;

“Reasons to be recorded later on, instant Crl. Appeal is partly allowed. Conviction and sentence recorded vide judgment dated 17‑06‑2015, passed by learned Judge, Anti-Terrorism Court, Sukkur in Special Case No.44/2011, emanating from FIR No.243/2011, registered at Police Station Dodlai, District Sukkur, for offence punishable under Sections 302, 324, 353, 395, 114, 148, 149, PPC, are set aside only to the extent of appellant Abdul Jabbar alias Jabi. Consequently, matter is remanded to the learned trial Court with direction to recall PW-1 Nawab Ahmed and to provide fair opportunity to appellant for cross-examining him and then record statement of appellant/accused under Section 342, Cr.P.C afresh by putting him each and every incriminating piece of evidence for his explanation/reply and then to pass a fresh judgment in his respect, after providing chance of hearing to the parties, preferably within period of two (02) months after receipt of copy of this Judgment, strictly in accordance with law.

            Accordingly, Reference made by the learned trial Court for confirmation of death sentence awarded to appellant Abdul Jabbar alias Jabi is answered in NEGATIVE.

            Both, the Appeal and Confirmation Reference are disposed of in the above terms. Office is directed to place a signed copy of this order in the captioned/connected matter”.

10.       Above are the reasons for the same.

                                                                                                                             Judge

 Judge

Nasim/PA