1. ' IMAM ALI G. KAZI, J.--- The Special Judge for Suppression of Terrorist Activities at Larkana has convicted the appellant Niaz Hussain under section 302/149, P.P.C. For the murder of one Ali Haider Palal and sentenced him to suffer imprisonment for life and pay a fine of Rs,5,000 or in default to suffer R.I. For one year more and has also convicted him for offence under section 307 read with section 149, P.P.C. And sentenced him to suffer rigorous imprisonment for 5 years and pay a fine of Rs,2,000 or in default to suffer R.I. For 5 months more by his judgment passed on 15-3-1992 in Special Case No,162 of 1990. Both the substantive sentences have been ordered to run concurrently and the appellant given the benefit of provisions of section 382-B, Cr.P.C. In computation of his sentences. It is against this judgment that the present appeal under section 7 of the Suppression of Terrorists Activities (Special Courts) Act, 1975 has been filed.
2. ' The case of the prosecution briefly stated is that one All Haider Palal, an accused person required in a number of cases was confined in the judicial lock-up of Taluka Miro Khan, District Larkana. On 28-4-1990 at about 2-00 hours in the morning, some 12/14 unknown persons armed with Klashnikovs, rifles and guns surrounded the judicial lock-up and started indiscriminate firing. The noise of the firing attracted Ahmed All Jakhrani, S.H.O. Police Station Miro Khan, A.S.Is. Syed Muhammad Ibrahim Shah and Mehar Ali of Police Station Miro Khan, W.H.C. Faiz Muhammad, H.Cs.
3. Ghulam Murtaza, Nazar Ali and Abdul Jabbar, P.Cs. Abdullah, Nazir Hussain, Manzoor Ali, Sikandar Ali, Munawar Ali, Anwar Ali, Ghous Bux, Fateh All and Ghous Bux of that Police Station. On seeing such staff of Police approaching the judicial kick-up, the accused persons started firing at them and the other staff of the judicial lock-up. The accused persons picked out the key of the lock-up lying under the pillow of L.P.C. Hidayatullah, unlocked the lock-up and took out prisoner All Haider Palal and dragged him towards the west. One P.C. Ghulam Sarwar, who was on duty at the judicial lock-up and one person from among the accused received fire-arm wounds. One of the accused who was injured in the encounter was lying in the Verandah of the lock-up and one broken loaded .7 m.m. Rifle was secured from his possession. He gave his name to be Niaz Hussain, the present appellant. D.S.P. Ghulam Akbar Panwar alongwith other staff also reached the spot and started firing. Another accused person also received injuries and started limping away towards the west but collapsed at a short distance near the road going to Sujawal. The Police recovered one magazine and 51 bullets of 7.62 bore. The injured accused person gave his name as Ayub and he received injuries on his head and other, parts of the body and expired at the spot. The police chased the remaining accused persons who were taking away prisoner Ali Haider Palal, who was raising cries not to kill him. The police opened fire at them but the accused escaped. They then found that prisoner All Haider Palal had expired due to fire-arm injury. Thereafter the S.H.O. Ahmed All returned to the police station and registered the complaint while the other staff was asked to chase the accused persons. The police after usual investigation sent up the present appellant to stand trial for the murder of Ali Haider Palal and attempt made to kill jail guard Ghulam Hussain before the Special Court for Suppression of Terrorist Activities at Larkana.
4. ' The prosecution in support of their case examined complainant Ahmed Ali, S.H.O. Miro Khan Police Station (P.W.1), H.C. Abdul Wahab, one of the jail guards of Judicial lock-up Miro Khan (P.W.2), P.C.
5. Abdullah of Police Station Miro Khan (P.W.3), , Fateh Ali, Police Constable of Police Station Miro Khan (P.W.4), Muhammad Sabir, Jail Guard Judicial Lock-up Miro Khan (P.W.5), Dr. Zahoor Ahmed Shaikh, who had conducted post-mortem examination of deceased Ali Haider Palal (P.W.6), Dr. Gian Chandani, Medical Officer who had examined injured Ghulam Sarwar (P.W.8), Ghous Bux, Tapedar, Syed Muhammad Ibrahim Shah, S.I.P., Police Station Miro Khan (P.W.10) and Aijaz Ali, another S.I.P. Of Police Station Miro Khan (P.W.11).
6. ' The appellant in his statement recorded under section 342, Cr.P.C. Generally denied the allegations of the prosecution and stated that he was lying injured on the Pucca road in front of Mukhtiarkar Office and no arm was secured from him. He was in fact working as Chowkidar at a petrol pump nearby and had gone there at the sound of firing and was injured due to firing. He further stated that he was not concerned either with the deceased Ali Haider Palal or anyone else but was injured when he tried to find out the reasons for the firing that was going on near the Mukhtiarkar's Office. He also examined witnesses Mallah Muhammad and Rajab Ali in support of his defence version.
7. ' The trial Judge on the basis of evidence brought on record on behalf of the prosecution in the case and not being impressed by the evidence led in defence has convicted and sentenced the appellant as stated above.
8. ' Mr. Azizullah K. Shaikh, Advocate for the appellant, in his brief arguments in support of the appeal, firstly contended that on the showing of the prosecution itself a broken .7 m.m. Rifle was secured from the possession of the appellant and, therefore, the offence was not a scheduled offence and could not be tried under the provisions contained in the Suppression of Terrorist Activities (Special Courts) Act, 1975. Secondly he contended that the evidence available on record merely indicates that 12/14 persons attacked the judicial lock-up Miro Khan in order to secure the release of Ali Haider Palal from the jail custody. It was only when the prisoner was released from the jail and dragged about half a kilometre from the jail itself that he was shot dead by the assailants, and that too when strong police force was chasing them. It is thus evident that the assailants had made their mind to kill Ali Haider Palal at a later stage. The appellant Niaz Hussain was not available with them at that time as according to the case of prosecution he had received injuries in front of the jail itself and fallen there before the prisoner was taken out of cell.
9. ' Mr. Abdul Hakeem H. Bijarani, Assistant Advocate-General lukewarmly supported the judgment of the trial Court.
10. ' According to the case of prosecution itself 12/14 assailants had surrounded the judicial lock-up Miro Khan to secure release of prisoner Ali Haider Palal. While they were attempting to do so, the police party seems to have arrived at the spot and an encounter occurred between them. As a result of the encounter the appellant received injuries and fell down in front of the judicial lock-up.
11. Jail Guard Ghulam Hussain and one of the accused persons, Ayub, also received injuries as a result of cross-firing and died at the spot, although they succeeded in securing release of prisoner Ali Haider Palal. The remaining accused persons had made their headway half a kilometre from the jail and being followed by the police killed him at that point. The facts of this case clearly indicate that the assailants, who had succeeded in securing the release of prisoner Ali Haider Palal, when they found police following them killed him at a distance from the, lock-up. It was only the chase of the police that made them to change their mind. Had they initially come with the object to kill the prisoner All Haider Palal, nothing could prevent them from doing so either inside the lock-up or outside of it after he was taken out of it. Therefore, there is no evidence connecting the appellant with the commission of the offence of murdering the prisoner All Haider Palal. It is also not known if Jail Guard Ghulam Hussain received injuries after appellant was injured or before he received the injuries. The fact that the appellant was lying in front of the jail while injured Ghulam Hussain (who could not be examined by the prosecution as he was killed in another encounter subsequently and before the case proceeded) was lying little ahead of him. It cannot be established that any attempt was made by the appellant to kill him. The appellant was also not found armed with any weapon which could attract the provisions of Suppression of Terrorist Activities (Special Courts)
12. Act, 1975.
13. ' For the above reasons by our short order passed on 24-5-1993 we had set aside the judgment and sentence passed against the appellant and allowed the appeal by allowing the prosecution to prosecute the appellant separately for any other offence for which he could be tried in accordance with law.