2020 P Cr (PLP)

IRSHAD ALI SHAH, J.

The appellants by way of instant Criminal Appeals have impugned the judgment dated 16.03.2017, whereby they by Judge, Anti-Terrorism Court Khairpur Mirs' have been convicted and sentenced as under; "Hence, all the above-named accused are liable to be punished for the offence under sections 302, 324, 353, 395, 148, 149, P.P.C. read with section 7(a), A.T.A., 1997 and 23(i)A of Sindh Arms Act, 2013. I, therefore; convict the accused

1. Zameer Rajper,

2. Mehboob Rajper,

3. Piyaro Khaskheli,

4. Akber Khaskheli, for the offence punishable under section 302(b) read with section 149, P.P.C. in Crime No.39/2014 and sentence them death penalty. They shall be hanged by their neck till they are dead and it is further ordered that the accused

1. Zameer Rajper,

2. Mehboob Rajper,

3. Piyaro Khaskheli and

4. Akber Khaskheli shall pay the compensation as contemplated under section 544-A, Cr.P.C. to the legal heirs of the deceased PC-Jam Khan Jogi, of Rs.2,50,000/- (Rupees two lac fifty thousand) each in lieu of above named deceased, total Rs.10,00,000/- (Rupees ten lac) and in case of default of payment of said compensation the accused

1. Zameer Rajper,

2. Mehboob Rajper,

3. Piyaro Khaskheli and

4. Akber Khaskheli 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 the said deceased in accordance with law. Separately; I also convict the above named accused

1. Zameer Rajper,

2. Mehboob Rajper,

3. Piyaro Khaskheli and

4. Akber Khaskheli for the offence punishable under section 324 read with section 149, P.P.C. and sentence them to suffer R.I for ten years each and to pay the fine of Rs.25,000/- each. In case of default in payment of fine, they shall suffer further R.I for six months each. I also convict the accused accused

1. Zameer Rajper,

2. Mehboob Rajper,

3. Piyaro Khaskheli and

4. Akber Khaskheli for the offence punishable under section 353 read with section 149, P.P.C. and sentence them to suffer R.I for two years each. I also convict the accused accused

1. Zameer Rajper,

2. Mehboob Rajper,

3. Piyaro Khaskheli and

4. Akber Khaskheli for the offence punishable under section 395 read with section 149, P.P.C. and sentence them to suffer Rigorous Imprisonment for life each. Their properties also be forfeited to the State. The prosecution also proved its case bearing Crime No.19/2015 in respect of recovery of one unlicensed Kalashnikov along with its magazine containing five live bullets which was also separately registered against the accused Zameer Rajper and was amalgamated for joint trial as envisaged in section 21(m) of ATA, 1997, therefore, I also convict the accused Zameer Rajper for the offence punishable under section 23(i)(A) of Sindh Arms Act, 2013 and sentence him to suffer R.I for seven years and to pay fine of Rs.15,000/- (Fifteen thousand). In case of default in payment of fine, he shall suffer further R.I for two months. The prosecution also proved its case bearing Crime No.19/2015 in respect of one unlicensed kalashnikov along with its magazine containing 13 live bullets which was also separately registered against accused Mehboob Rajper and was amalgamated for joint trial as envisaged in section 21(m) of A.T.A., 1997, therefore, I also convict the accused Mehboob Rajper for the offence punishable under section 23(i)(A) of Sindh Arms Act, 2013 and sentence him to surfer R.I. for seven years and to pay the fine of Rs.15,000/- (Fifteen thousands). In case of default tin payment of fine, he shall suffer further R.I for two months. I also convict the accused namely

1. Zameer Rajper,

2. Mehboob Rajper,

3. Piyaro Khaskheli and

4. Akber Khaskheli for the offence punishable under section 7(a) of A.T.A., 1997 and sentence them death penalty, they shall be hanged by their neck till they are dead, subject to confirmation of death sentence by the Honourable High Court of Sindh Bench at Sukkur. Accused are further ordered to pay fine of Rs.15,000/- (Fifteen thousand). In case of default thereof, they shall suffer further R.I for three months each and if the fine is recovered be deposited in government treasury. All the above said sentences awarded to present accused

1. Zameer Rajper,

2. Mehboob Rajper,

3. Piyaro Khaskheli and

4. Akber Khaskheli shall run concurrently with the benefit of section 382-B, Cr.P.C. Accused

1. Zameer Rajper,

2. Mehboob Rajper,

3. Piyaro Khaskheli and

4. Akber Khaskheli are present in custody be remanded to Central Prison, Khairpur Mir's to serve out their sentences in execution in accordance with law."

2. The facts in brief necessary for disposal of instant appeals are that the appellants with rest of the culprits when were committing robbery were confronted by complainant PC Khadim Hussain and PC Jam Khan on that they deterred them from discharging their lawful duty as public servant by making fire at them with intention to commit their murder, consequently PC Jam Khan after sustaining fire shot injury lost his life, the appellants and others then made their escape good by taking away with them the official rifles of the complainant and late PC Jam Khan, for that they were booked and reported upon by the police before learned Judge, Anti-Terrorism Court, Khairpur to face trial for the above said offence.

3. At trial, the appellants and co-accused Naveed did not plead guilty to the charge and prosecution to prove it, examined PW-1 complainant PC Khadim Hussain (Exh.10), he produced roznamcha entry and FIR of the present case; PW-2 PC Ali Muhammad (Exh.12); PW-3 mashir LPC Farman Ali Suhag (Exh.12), he produced danistnama, memo of examination of dead body of the deceased, receipt whereby he handed over dead body of deceased to his legal heirs and memo of recovery; PW-4 SIP Abdul Raheem (Exh.14); PW-5 ASI Amanullah Narejo (Exh.16); PW-6 Dr. Zainuddin Qureshi (Exh.17), he produced police letter and post mortem report on the dead body of the deceased; PW-7 Tapedar Pervez Ali (Exh.18), he produced sketch of place of incident; PW-8 SIP Ghulam Ali (Exh.19), he produced report of Chemical Examiner etc.; PW-1O Inspector Ghulam Murtaz (Exh.21), he produced memo of arrest of accused Zameer and Mehboob, letter for constitution of JIT, copies of FIR Crime Nos.19/2015 and 20/2015 of Police Station Kot Laloo, reports of Chemical Examiner and Ballistic Expert and then closed the side.

4. The appellants during course of their examination under section 342, Cr.P.C. denied the prosecution's allegation by pleading innocence by stating that they have been involved in this case falsely by the police at the instance of local 'Waderas', they did examine themselves on oath or any one in their defence in disproof of the prosecution's allegation.

5. It was stated by co-accused Naveed during course of his examination under section 342, Cr.P.C. that he on the date of incident was in jail by stating so he produced such certificate and his plea was accepted and he was acquitted of the offence by learned trial court for which he was charged.

6. On the basis of evidence, so produced by the prosecution, the learned Court convicted and sentenced the appellants and then made a Reference to this Court in terms of section 374, Cr.P.C. for confirmation of death sentence or otherwise, which he has awarded to the appellants, as detailed above.

7. The Criminal Appeals so filed by the appellants and the Reference so made by learned trial Court are now being disposed of by this Court through single judgment.

8. It is contended by learned counsel for the appellants that the appellants being innocent have been involved in this case falsely by the police at the instance of local 'Waderas'; there was 17 hours delay in lodgment of FIR and the evidence which the prosecution has produced being inconsistent and doubtful in nature has been believed by learned trial Court without lawful justification. By contending so, he sought for acquittal of the appellants. In support of his contentions, he relied upon the cases of Muhammad Afzal alias Abaullah and others v. The State and others (2009 SCMR 436); Muhammad Asif v. The State (2017 SCMR 486); Muhammad Afzal v. The State (2017 SCMR 1645); Tariq v. The State (2017 SCMR 1762); Ulfat Hussain v. The State (2018 SCMR 313); Zafar v. The State and others (2018 SCMR 326); Munir Ahmad and another v. The State and others (2019 SCMR 79); Abdul Jabbar and another v. The State (2019 SCMR 129); Altaf Hussain v. The State (2019 SCMR 274) and Haji Abdul Jabbar Thebo v. Imdad Ali and 6 others (2018 YLR 1964).

9. Learned DPG for the State by supporting impugned judgment has sought for dismissal of instant appeals by contending that the appellants have committed the heinous offence.

10. We have considered the above arguments and perused the record.

11. The unnatural death of deceased PC Jam Khan is proved by evidence of Dr. Zainuddin. Now is to be examined the liability of the appellants towards the present incident. It is stated by complainant PC Khadim Hussain that on 30.06.2014, he and PC Jam Khan were performing their duties at Leeman Police Picket, there at about 0500 hours, there were found coming twelve persons duly armed with weapons from western side, they tried to stop the vehicles which were going towards Karachi and they were intending to rob a bus, he and PC Jam Khan went over to them on that they fired at them which was retaliated in self-defence during course whereof PC Jam Khan by raising cries told him that he has sustained a bullet injury on left side of his abdomen. The accused overpowered him and PC Jam Khan and then took away their official weapons/rifles. They were identified under the light of vehicles to be Zameer, Imran, Mehboob, Naveed, Imtiaz, Akber, Piyaro, Shoukat and others. They were armed with kalashnikovs and pistols. In the meanwhile, there came PC Ali Muhammad and DPC Chani Bux from P.P Kot Sultan while LPC Farman and PC Nabi Bux came from P.P Jalal Ji and then accused went away by making aerial firing to create harassment and terrorism. PC-Jam Khan was taken to RHC Faiz Ganj, there came Inspector Abdul Raheem and then PC Jam Khan was referred to Nawabshah Hospital. None from RHC Faiz Ganj has been examined by the prosecution, such omission could not be overlooked. It was further stated by the complainant that he then lodged report of the incident. It has been lodged with unplausible delay of about 17-1/2 hours. The identity of the culprits is based under the light of passerby vehicles which appears to be a weak piece of evidence. The complainant during course of his examination was fair enough to admit that the names and parentage of the accused Zameer and Mehboob were disclosed to him at the time ol lodgment of the FIR by other police officers. By stating so, he was also fair enough to admit that co-accused Naveed (who has already been acquitted by learned trial Court) at the time of incident was confined in jail and he named him in his FIR on similarity of the description. The evidence of the complainant who was found to be prepared to involve the persons at the instance of someone else and similarity of the descriptions could hardy be -relied upon to base conviction. PW PC Ali Muhammad who came on incident on hearing of fire shot reports was fair enough to admit that "it is a fact that when PC Jam Khan received bullet injury 1 did not see them with my own eyes". Such admission on his part is enough to draw a conclusion that he came at the place of incident when it was over. The person who came at the place of incident when it was over could hardly be said to be the witness of the incident. PW PC Farman Ali was fair enough to say that the accused were not known to him prior to the incident. If it was so, then how he disclosed the names of the accused with their parentage in his 161, Cr.P.C. statement? It is not explained by the prosecution. PW, PC Dhani Bux has not been examined by the prosecution. No robbed article is secured from any of the appellants by the police even on their arrest. In that situation, the appellants could not be held to be guilty for the alleged offence only on the basis of recovery of crime weapons (at least from two of them viz. Zameer and Mehboob) which allegedly was affected from them on the 4th day of their arrest, that too in presence of no independent witness.

12. The conclusion which could be drawn of the above discussion would be that the prosecution has not been able to prove its case against the appellants beyond shadow of doubt. What to talk of confirmation of their death sentence.

13. In case of Tarique Pervez v. The State (1995 SCMR 1345), it has been held by Hon'ble Apex Court that; "For giving benefit of doubt to an accused it is not necessary that there should be many circumstances creating doubt if a simple circumstance creates reasonable doubt in a prudent mind about the guilt of the accused, then he will be entitled to such benefit not as a matter of grace and concession but as a matter of right."

14. In case of Mehmood Ahmed and others v. The State and another (1995 SCMR-127), it was observed by the Hon'ble Court that; "Delay of two hours in lodging the FIR in the particular circumstances of the case had assumed great significance as the same could be attributed to consultation, taking instructions and calculatedly preparing the report keeping the names of the accused open for roping in such persons whom ultimately the prosecution might wish to implicate".

15. For what has been discussed above, the appellants are acquitted of the offence for which they were charged, tried and convicted by learned trial Court, they are in custody they shall be released from custody forthwith in the present case.

16. The instant Criminal Appeals and death Reference are disposed of in above terms. JK/Z-14/Sindh Appeal accepted.