2026 PLP 594 (SCMR)

ALI BAQAR NAJAFI, J.

Leave to appeal is sought against the impugned judgment of the High Court dated 31.03.2015, whereby, the judgment of the trial court dated 27.11.2013 was modified and death sentence on two counts was converted into life imprisonment and benefit of doubt was extended to the appellant and sentence under Section 7-A of Anti-Terrorism Act, 1997, was set aside. The appellant was convicted and sentenced by the learned trial court in the following manner:- i. Under Sections 302(b)/34, P.P.C. To death as Ta'zir on two counts for committing Qatl-i-amd of Nazeer Ahmad ASI and Muhammad Yaqoob P.Q.R, with compensation of Rs.3,00,000/-on two counts to be paid to the legal heirs of said deceased as provided under Section 544-A Cr.P.C. In default whereof to further undergo six months S.I on two counts. ii. Under Section 7-A of Anti-Terrorism Act, 1997 read with Section 34, P.P.C. To death as Ta'zir on two counts for committing "Qatl-i-amd" of above-said deceased with fine of Rs.3,00,000/- on two counts and in default of payment of fine, the convict/appellant shall have to undergo Simple Imprisonment for six months on two counts. iii. Under Sections 353/34, P.P.C. Two years R.I. iv. Under Sections 324/34, P.P.C. For attempting to commit Qatl-e-amd of Muhammad Imran 2072/C, 10(ten) years R.I with fine of Rs.10,000/- and in default whereof to further suffer six months Simple Imprisonment. In addition to said imprisonment and fine, the appellant was also awarded three years R.I on two counts under sections 337-F(ii) and 337-F(v) P.P.C. The appellant/ convict had also pay 'Daman' of Rs. 10,000/- to Muhammad Imran 2072-C on two counts and in case of default in payment of 'Daman' the appellant/convict was to be kept in jail and dealt with in the same manner on two counts, as if sentenced to Simple Imprisonment until 'Daman' is paid full or may be released on bail if he furnished security or surety equivalent to the amount of 'Daman' to the satisfaction of the Court. v. Under Section 7-C of Anti-Terrorism Act, 1997 read with Section 34, P.P.C. Ten years R.I with a fine of Rs. 10,000/- and in default of payment of fine, the convict/appellant had to suffer six months Simple Imprisonment. vi. Under Section 427/34 P.P.C. One year R.I. vii. Under Section 7-H of Anti-Terrorism Act, 1997 read with Section 34 P.P.C. Five years R.I with a fine of Rs.10,000/- and in default of payment of fine, to further undergo six months Simple Imprisonment. The accused Akhtar Hussain and Nazeer Ahmad, were acquitted of the charges while extending them benefit of doubt.

2. The petitioner was convicted and sentenced for the murder of Nazeer Ahmad A.S.I and Muhammad Yaqoob P.Q.R, the two police officials, and injuring Muhammad Imran constable in the night hours in a promptly lodged FIR on the allegation that the deceased along with other police officials, boarded on official vehicle, stopped three unknown pillion riders on suspicion, who stopped and started firing towards them. Two of them held a pistol 30-bore, whereas, the other with Kalashnikov and with their firing, the front screen of the vehicle was smashed and the said two deceased and injured sustained fire shots. In self defence, the police officials also fired back due to which one unknown assailant got injured and fell down, whereas, other two succeeded to flee away untouched by restoring to aerial firing. The police witnesses identified two assailants in the light of the official vehicle and the electric bulb lit in the Bazar. The unknown persons, however, succumbed to the injuries at the spot. Nazeer Ahmad A.S.I died in the hospital, whereas, Muhammad Yaqoob P.Q.R succumbed to the injuries on the way. A pistol 30-bore with magazine of two live bullets were lying near to the dead bodies of unknown persons.

3. After completion of investigation, the appellant faced trial and in his statement under Section 342 Cr.P.C., he stated that he was arrested on 09.09.2011 (the following day of occurrence) from his house by the S.H.O, who forced him to produce Abdul Sattar accused since (P.O), he had shown his ignorance and was detained till 02.11.2011 and he was booked in the said criminal case being brother of Abdul Sattar.

4. The prosecution case is comprised of the eye-witness of Muhammad Imran (PW-12), the test identification parade and recovery of Kalashnikov and motor-cycle from the appellant. The High Court observed that three empties of Kalashnikov (P-24) were sent to the Forensic Science Laboratory ('FSL') together which matched and the weapon was found in operative condition. The sending of the two, to the FSL jointly caused doubt whether the bullets were fired from the same weapon leaving three empties at the spot.

5. Muhammad Imran (PW-12) is the star injured eye-witness who stated that due to firing of the accused persons, Nazeer Ahmad A.S.I and Muhammad Yaqoob P.Q.R (both deceased) and he sustained fire shots. He did not give specific role to the appellant to fire on him with reference to specific injuries. According to Dr. Masood Jahangir (PW-6), he examined Muhammad Imran (PW-6) who had sustained bullet injuries on left shoulder and on right foot, with both entry and exit wounds but he did not specify the appellant for causing those injuries. Besides, he stated that he identified the physical features of the accused persons in the light of police official vehicle and bulb of Bazar but he had failed to give salient aspects of their features.

6. The file also does not reveal the evidence of conducting test identification parade, therefore, the identification of the appellant is highly doubtful. The pistol 30-bore and two live bullets were found lying next to the unknown deceased. The police officials were present in their official vehicle, therefore, it was not possible for them not to apprehend the unknown assailants. It is also noticeable that the appellant had no motive to commit the said assault on police officials since neither the assailants were robbers nor the appellant was required by the police.

7. For the foregoing reasons, we are of the considered view that the prosecution had failed to discharge its duty to prove the case against the appellant beyond any reasonable doubt. Therefore, the leave to appeal is refused and Crl. P.L.A No.654-L of 2016 is hereby dismissed. However, the Crl. Appeal No.283-L of 2020 is allowed by setting aside the impugned judgments. The appellant is acquitted from the charges. He shall be released forthwith if not required in any other case. JK/S-52/SC Appeal allowed.