NAIMATULLAH PHULPOTO, J. Appellant Abdul Jabbar alias Jabbi Korai was tried along with co- accused Atta Muhammad alias Mithal, Altaf and Wahid Bux alias Badshah (since acquitted) by the learned Judge Anti-Terrorism Court-I, Sukkur. On the conclusion of the trial, vide judgment dated 26.06.2021 the appellant Abdul Jabbar alias Jabbi was convicted under Section 302(b), P.P.C. and sentenced to imprisonment for life as Tazir and to pay compensation of Rs. 100,000/- to be paid to legal heirs of the deceased PC Muhammad Ali Bullo in terms of Section 544-A, Cr.P.C. Appellant was further convicted under Section 7(i)(a) ATA Act, 1997 and sentenced to imprisonment for life and to pay fine of Rs.50,000/- and in case of default to suffer S.I for one year more.
Appellant was further convicted under Section 353, P.P.C. and sentenced to two years R.I and to pay fine of Rs.2000/- in case of failure to suffer S.l for one month more and appellant was also convicted under Section 324, P.P.C. and sentenced to ten years R.l and to pay fine of Rs.3000/- and in case of default thereof to suffer further S.I for one month. All the sentences were ordered to run concurrently. However, appellant was extended the benefit of Section 382-B, Cr.P.C.
2. The facts leading to the filing of appeal as mentioned by the trial Court, in the impugned judgment read as under: "Facts forming the basis of above case as unfolded in the FIR No.243/2011 are that on 17.8.2011 complainant PC Meenho Khan lodged complaint in D.D entry No.7 of P.S Dadloi at about 1130 hours on 17.08.2011, which was incorpo-rated in 154, Cr.P.C. book as FIR No.243/2011 at PS Pano Aqil wherein stated that he and his maternal cousin (Maot) PC Muhammad Ali Bullo were posted at PS Dadloi, they duly armed with official ammunitions left police station under entry No.11 at about 1700 hours dated 15.8.2011 for performing their duties at National Highway police picket Kouro Khan Korai where they were standing, when at about 2045 hours, complainant went for call of nature and he handed over his G-3 rifle and bullets to PC Muhammad Ali Bullo, meanwhile complainant heard the noise of PC Muhammad Ali and on the light of vehicles passing through the road, saw and identified the persons to be Wahid Bux alias Badshah empty handed, his sons Abdul Jabbar alias Jabbi and Altaf were armed with pistols, Atta Muhammad alias Mithal with gun all by caste Korai resident of village Soomr Khan Korai including two un-identified persons who were armed with guns, their faces were opened and would be identified if seen again who were standing near PC Muhammad Ali Bull. It is mentioned in the FIR that accused Wahid Bux alias Badshah instigated other accused to kill PC Muhammad Ali and rob his official weapon, on which accused Abdul Jabbar alias Jabi fired from his pistol which hit to PC Muhammad Ali, who fell down on the road and other accused robbed official rifles and bullets from PC Muhammad Ali, meantime complainant went ahead towards accused on which accused Altaf made straight fire upon him which was missed and due to fear, the complainant did not chase the accused persons. Thereafter all accused ran away towards village Kouro Khan Korai, then complainant saw PC Muhammad Ali, who sustained firearm injuries on his back side of head which was through and through and blood was oozing, and he succumbed to his injuries. The complainant informed about the incident to SHO Habibullah Mahar of police station, Dadloi and his relatives, meantime SHO Habibullah Mahar with his staff reached at the spot and relatives of the complainant Muhammad Hussain and Nawab also reached there.
Complainant narrated the above incident to them, SHO along with his staff chased the accused persons and compliannt brought the dead body of deceased PC Muhammad Ali at Taluka Hospital, Pano Akil and after funeral prayer, complainant came at police station Dadloi and lodged he complaint which was later-on incorporated in 154. Cr.P.C. book at police station, Pano Akil to the above effect. After usual investigation accused Abdul Jabbar alias Jabbi, Atta Muhammad alias Mithal and Altaf were shown in custody, while accused Wahid Bux alias Badshah was shown on bail".
3. Trial Court framed the charge against the appellant and co-accused at Exh.03. They pleaded not guilty and claimed to be tried.
4. At the trial, prosecution examined PC Nawab Ahmed (PW 1), HC Sunharo Khan (PW 2), Complainant PC Meenho Khan (PW 3), Dr.Muhammad Ismail (PW 4), SIP Habibullah Mahar (PW 5) and SIP Ali Akber (PW 6). Thereafter, prosecution side was closed.
5. Statements of the appellant and co-accused were recorded by the learned trial Court under Section 342, Cr.P.C. wherein they denied the prosecution allegations and claimed false implication in the case. The appellant produced certified true copy of Cr. Misc. Application No.480/2011 and copies of orders passed by this Court. Appellant declined to give evidence on oath in disproof of prosecution allegations.
6. The trial Court in the first round vide judgment dated 17.06.2015 convicted the appellant and sentenced him to death and made reference to this Court for confirmation of death sentence or otherwise. However co-accused Atta Muhammad alias Mithal, Altaf and Wahid Bux alias Badshah were acquitted by the learned trial Court.
7. The appellant filed appeal against his death sentence being Appeal No. D-53/2015. This Court heard the appeal as well as confirmation reference made by the learned trial Court and vide judgment dated 04.05.2021, partly allowed the appeal and set aside the conviction and sentence recorded by the trial Court and answered the reference in negative and remanded the case to the trial Court for re-calling PW 1 Nawab Ahmed for his evidence. Trial Court after remand of the case, re-examined PW Nawab Ahmed, then recorded the statements of the appellant under Section 342, Cr.P.C. afresh and after hearing the learned counsel for the parties and on the assessment of the evidence convicted the appellant and sentenced him to imprisonment for life as stated above.
8. The evidence of this case has already been discussed by the trial Court in detail, therefore same need not be repeated here.
9. Learned counsel for the appellant mainly argued that after the incident, the station diary No.17 was registered at P.S, Dadloi at 0200 hours, regarding this cognizable offence, but in the same station entry name of the appellant did not transpire. Secondly, on the same set of evidence, co- accused Atta Muhammad alias Mithal, Altaf and Wahid Bux alias Badshah have already been acquitted by trial Court and conviction of the appellant on same set of evidence, was not sustainable under the law. Thirdly, the incident occurred on 15.8.2011 at 2045 hours but source of light has not been disclosed by the eye-witness of the incident namely PC Meenho Khan in his evidence at Exh.09. Learned counsel further argued that the appellant has already been acquitted in the off-shoot case as well as in the case of snatching official SMG from deceased PC Muhammad Ali. Lastly, it is argued that the appellant was in police custody before this incident and in support of such contention, reliance is placed upon Crl. M. A. No. D-488 of 2011 and the orders passed on it as well as departmental action taken against the police officials of concerned police station. In support of his contentions, the learned counsel has relied upon the cases of Muhammad Saleem v. The State (2010 SCMR 374), Riaz Ahmed v. The State (2010 SCMR 846) and Mureed Hussain v. The State through Prosecutor General Sindh (2014 SCMR 1689).
10. Learned Addl. P.G. argued that the appellant has been specifically named in the FIR with role and the evidence of PW PC Meenho Khan has been supported by the medical evidence. He prayed for dismissal of the appeal. In support of such contentions, reliance is placed upon the cases of Shahbaz v. The State (2019 PCr.LJ 1719).
11. After re-examination of the evidence, we have come to the conclusion that prosecution has failed to prove it's case against the appellant mainly for the reasons that co-accused Atta Muhammad, Altaf and Wahid Bux alias Badshah have already been acquitted by the trial Court by dis-believing the evidence of the prosecution witnesses and conviction of the appellant on same set of evidence, without independent corroboration was not sustainable in law. With regard to the incident, we have noticed that the station diary was recorded at Police Station, Dadloi bearing entry No.07 at 1130 hours. Perusal of said station diary reflects that all the major details regarding the present incident were mentioned in the diary but the name of appellant did not transpire in the station diary. However, name of the appellant has been mentioned by the police in FIR lodged on 15.8.2011. Police started investigation by issuing letter to medical officer for examination of injured.
We had that FIR in this case thus, would be said station diary, under which complainant had narrated details of incident. Reliance is placed upon the case of Falak Sher v. The State (1995 SCMR 1350). There is legal force in the contention of learned counsel for the appellant that FIR of this case has been lodged against the appellant with ulterior motive. In this case, there was only one eye-witness of the incident namely PC Meenho Khan, we have re-assessed his evidence, he could not explain about his presence at the time of incident. He has deposed that at the time of actual occurrence, he had gone for urinating purpose. He heard the gunshot and immediately returned back and saw the appellant. Story as narrated by him, does not appeal to the prudent mind. We are unable to believe his evidence as to how he escaped if the incident had actually taken place in the manner as narrated by the PC Meenho Khan, who was sole eye-witness of the incident. The evidence was neither trustworthy nor confidence inspiring. Moreover, the evidence of eye-witness has been disbelieved by the trial Court to the extent of co-accused who have been acquitted by assigning sound reasons and the acquittal in favour of the co-accused admittedly has not been challenged by State. We have re-examined the defence evidence and have come to the conclusion that the defence evidence was based upon the official record but the learned trial Court failed to appreciate the same. It is a matter of record that the relative of the appellant, namely Zaheer Hussain Korai had filed Crl. M. A. No. D-488 of 2011 before this Court for the recovery of appellant on the ground that the appellant was in police custody before the registration of FIR and raid was conducted, no doubt, the raid was unsuccessful but there was allegation against the concerned SHO and DSP that they have tampered with the official record of P.S and police officials were punished by competent authority of police. In this case, there are several circumstances creating reasonable doubts in the case of the prosecution. In the case of Tariq Pervez v. The State (1995 SCMR 1345) wherein. it has been held by the Hon'ble Apex Court that it is not necessary that there should be many circumstances creating doubts, if there is a single circumstance, which creates reasonable doubt in a prudent mind about the guilt of the accused, then the accused will be entitled to the benefit not as a matter of grace and concession but as a matter of right. The present case is full of reasonable doubt.
12. We have come to the conclusion that the prosecution had failed to prove it's case against the appellant beyond reasonable doubt. Therefore, by extending benefit of doubt, the appeal is allowed, conviction and sentence recorded by trial Court vide judgment dated 26.06.2021 are set aside and appellant Abdul Jabbar alias Jabi is acquitted of the charge. Above are the reasons of a short order dated 30.11.2022.