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