IMRAN KHAN S/O HAMEED & ANOTHER (Appellant) VS THE STATE (Respondent)

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CERTIFICATE OF THE COURT IN REGARD TO REPORTING

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HIGH COURT OF SINDH

Composition of Bench: S=8./D. B

Mr. Justice Mohammad Karim Khan Agha, -z_(6y" at. s^3' Date(s) ofHearing: ;'t- tt- lf ) ;': -{r / I Decide onr o.t- tZ -20L9

(a)Judgment approved for reporting Yes ur

CERTIF ICATE

Certified that the.,udgment*/order is based upon or enunciates a principle of law */ decides a question of law which is of first impression / distinguishes / over- rules / reverses / explains a previous decision.

* strike out wh chever is r'rot appl cablc

NOTE (i) Ihig slip is only to be used when some action is to be taken.

(ii)lf the slip i5 used, the Reader must attach it to the top of the first page of the judgment.

{iii) Reader must ask the Jud8e writinB the.ludgment whether the ludgment is approved for reporting.

(iv)Those directions which are not to be used should be deleted.

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Special Anri Tenorism Appeat N,?1}I20t8 Imna Khon S/o Hameed

a. Shrbir Ahmed S/o Javcd Both Muslims, Adulrs.

Residelts of Karachi.

Plesently incarcerated at Ce[trdl prison, Xamchi................... ..tppell:rrti

llcspor(lljnt

IrlR No. lt ol20l,l L S -197/]lJ2/3tJ.i3{ PPC l(, w Sr(tion 7 ,\'l A P \ Qu:rirlrbad Kar;rchi APPI.]AL t]N I) E I{ sr,r( 1lo\ :5 ()r' l'lIIl ,\NTI l r,tRlloI{t SNI ACl' I997

Being aggrieved and disgruntlcd by the Judgment passed in Case r,-o.288 l8 by the Lcamed Special Judgc Anti lcrrorisnl Corj.l No. XVIII. Kamcl,i- the appollants were conviercd and wurc awarrlccl cepifal pLrnishntenl tt./S (b) PPC and a fine ol Rs. i.00.000/- in dclault rhereof 1(} funhcr undergo S.l il months, also convicted and were awarded capital punjshmcnr LI/S ? (1) (a) 1997 and a finc of Rs.50,000r- iD delaull rhcreof shall Lrnclereo S.l lbr Dnths, also convicted and scDtenccd U/S l9l l,l,C tbr selcn years R.l add of R5.25.000/- ir delault thereolsllltll urrdergo S.l tirl thrcc nronlhs rlso and sentenccd U/S 324 ppc for seven years R.l {nd a fine of in defauh thereof shall undcrgo S.l tbr three ntonlhs. also convicled ed U/S 137-F (iii) lor rhrcc years R.l and shall pay Rs,20,000,,- as h dcfault thereof shall und!r!o S.l ti)r llrree nronllrs. also ctinvicterl iutl U/S 7 (l) (c) of A lA 1997 ibr ren years R.l and a line of Rs.15.000,/- in fumf shall undtrgo S.l fr.rr. six ntonths. The appellanls ocrw. hercbv mosi prefer this appeal with ihc praycr lhal rh( intpu€lncd .iudSrncJrl may hc E stem trliscarriaglr of.jusricc has takctr place. tntcr alia anrr,ng olhcrs ofthe follorving fa s and groL|rJs

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IN THE HIGH COIIITT OF SINI)II

AT KARA(]HI

special Anri Tenorism Appcal No =J3rotn Muhemmad Irfao S/o Khanzeda Muslim. Adulr, Residenl ol Karachi. Presently incalerated at Central prison. Karachi..,........-.

r\ppcllant

TlIe \tate Ilrsp()o(lcnt

FIR No. I I o1 20lU l:, S -197/-102/321113.1 ppC fu\! Section 7 A'l A P S Quaidabad Krrachi

APPI,]i\ I- t,N DEIt SECT ION 25 OF THE AN'I'I I'EI{I{ORI st\t A(-t 1997

Beilg aggrieved and disgruntled by the Judgntent passed in Case No. 2Ell oI2018 by the Leamed Special Judge Anri Terrorism Court No. XVIII. Karalhi, whercby the appellant was conviclcd and was arvardetl capjtal punishment U/S 102 Pl,Cl and s fine of Rs.1,00,000/- in delaulr thereol.ro lilnher undergo S.l lor six months, also convicted !u1d was a\i.arded capilal punisluncnt l.r,/S 7 0) (a) ol.

ATA l9!)7 and a fine of Rs.j0,000,/_ iJl def:rulr rhereof shall undcrgo S.l tbr thrce monlhs, also convicted and scntcnced U/S 393 ppc for scvcn years R.l and a firrc of Rs.2,5,000/- in delault thereol. sha undergo S.l lbr lhrce months. also convicteil and sclrtl][ced U/S ]24 ppc Ibr seven years Il.l aud a fine of Rs.20,000/- in tlelhult thereof shall undcrgo S.l lbr three months, also convicted and sentenced LVS 337-! (iii) for three years ll.i ard shall pay Rs.20,000r- a-s daman in default thereof shall untlergo S.l for thrcc ntonths, also colvictcd aDd scntenced U/S 7 (l) (c) ol A.l A I997 for ten ycars R.l and a fine ofRs.25,000r in dclault thereof shall undcrgo S I tt r six months. Thc appellant now hcrebr- most rcspcctfully prefers this appcal with rhe prayer thar rhc irnpugned judgmem may be set asids as stem miscarriage ol.justicc has taken place, intcr alia among others. on delibctation olthe follou,ilg facrs and grounds: - (Certificd copy of the judgmrnt is altrchcd hercrr.ith and nrerlierl as Annexure.. ")

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-t_>tt Sfeii:rl Anti Tcrrn: rnt.\pital No .- ol 20lri lmrtn Khun S/o I [tmt ((t \lus1inr. AJLrll Re:iLlc-;ti r-. i haruchi.

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.\P EAI- T:\D t.It sl 'r'roN 2s F 'III ,\\1, l'ft_ It lt() Ir r\ ll .\C1 I ()ql I., lJeing ngsieved arr.1 cisgrunrlcrl h\ titc.JLr.lgnr(xl iuss.(l ijr (.tis( \o. 289 of20lN Lrr'!h. Lcamed SpceiaJ JLrdgt,.\rri rrrLrisnr c,ourl Nr, \\iur. Krrrchi.

rrilerchr the appcllru]l \u: (i,ti\i.lc(l ,|lil scnl(.IcL"d irr thr nrair case lcaring \,-r 288 ot 20l8. he,,ris al.so Lcrtrr;:tri .tr;rr -.,,rterr.,..,1 ij \i!(,ir\(Jr\ l( I .L l .r tirre ol Rs.I(l.rr()(),- in deltlult rhereol.

shall lill!er Lrurlcrgri) S.l I;r th!.eu nrouths undcr seclii,n li ( l) (r) uflh,, Sir,dh A rr,\.r l0ll in rh! irlr,tir !.ijc. lhe appellnrl no\\. haYi",-{ rLso frrkI].Ll a[ app:al iri 1he n1.tin cilse. hJreb\ nr,i,il resprcrf.ull]. prelbrs Ihis app.rl iI the ln(lrnl rirsr, $iLlt I t!- ])]:r....r ll].t tllc i]])fLrtrrr\l i((j!rlenr nra'bc sc-t asi.l. its sliln mtsi,rria,tc.,t i.,rrcr h.r. r.r(crr Iri rre. ,n,., .,, ., r,,,,,,,* 'lhers. on delibcriitir)n ol ll)(, lillloi\tnt lilil: nnJ !rorlt.i5: 'Crrtified (opt ol tha judgntcnl i\ nttx(trcd hrr$r.ith xnrl nrarkcd {s l: \( r \

.ric c.rf lacts r)f th( i:ltris.!ulio. ci:i( .: ,n11rt!il ln Illi .lae th!rr tllr : ri: \luhrnrmnrl Zahiq sl,,r|rl thrr his s!l ,\irJ!r Rnut.!\its Do\tcJ ils

-::rc silnte day, he along wrrh his son.s l.riends Ltrnar Wahid (l\rlice r. . iclatiles Sulcntan and Noorul Bashar cnote at g9 eucfla llashmi

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Karnchi fft ( Date(l: Sei)t _ :013 lhe Appella l

(JAI\{11 I..,\ , ASSO( IATIS)

qtl IN THE I - I'ERR ORIS]II CoURT NO XVIII etowh ARACHI DII'I SION) 3anng No: ATC-XVIII/KHI-DIV

2018,Karactu Dated: 07.09.2018.

5 Special Case No. 288/2018.

The State Versus Imran Khan & C)tlers Accuscrl FIlt No. 1 'r / 2018 U /5:397,302,324,34 PpC R,,w Section 7 ATA l'.S: Quairlaba d, Karachi

To, The Ilegistrar, \

Hon'ble High Court of Sindh, 6li A r\ SUBiI(--t Karachi.

URDER RF FER ENCE L'NDE

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SECTI N CR.P.C

.r0 ()r ATA. 1 997

I have the honour to submit that accused (.1) lmran Khan S/o Hameed lqbal, (2) Shabir Ahmeci S/o Jawed Iqbat, (3) Muhammad Irfan S/o Janzada were hicd by this court in special case No. 28g/2018, crime No. ltl201g, under section 397,302, 324,34 plrc R/w section Z, ATA, 1997 of police Station Quaidabad, Karachi. After the fuil dress trial, iudgnrent pronouncetl in open court or 06s september 20rg, hencc above named accused wele convicted under scction 265-H(ii) Cr.p.C, as such besides the other sentenccs in different cases and sections of law, all above named accusecl were awatded death sentences for committing nrurder of deceased Abdur Rauf on raro counts, i.e undcr section 302(b) Prc as well as 7 (1) (a) of AT A, 1gg7. However, the execution of death sentence was subiected to thc confirmation of murder reference as provided under se(tion 374 Cr.p.C R/w section 30 of ATA.1997.

The murder reference in aL,ove casc is submitted for confirmation of death sentences or otherwise alongwith R &ps of the above case.

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.I (luArr OI' ALI I) o) ludge Anti Ter rism Court No. XVIII Karachi.

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IiT. THE HIGH COURT OFS INDII AT KAITACHI Speci.rl Crl. Anti-Terrr.rrism Appeal No 252 of 2018 Spe,:ial Crl. Anti-l errorism ApPeal No.253 of 2{)18 Spc.r ial Crl. Anti-'ferrorism Appeal No.254 of 2018 SpeciaiCrl. Anti-Terrorism Appeal t"{o.255 of 2018 Confirmation Case Nc,.12 of 2018

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Itlr.lusticc lrlohafi m Khtn Atha Zulfiqir AIi I,uc!.

Appellants: Imran Khan S/o Hameed and Shabir Ahmed S/o. .laved through l',rr. Ivluhamrnad Jamil, Advocate.

Muhammad lrfan S/o. Khanzada through N|r. Zuifiqar Ali Shaik[ Advocate

l (lr St.,t! Mr. Muhammad lqbal Awan, DePutY Prosecutor Ccneral.

For the complainant: lvlr- Nluhammad fariq, Advocatc I)dtr r)l ltenring 21.1 l.?019 and 22.11.2019

Datc ()l announcenlentr 01 12 2019

IU DGNlENT Mohammad Karim Khan Agha, J.- APPcllants Imran Khan S/o. ilameed, Shabir Ahmed S/ o. laved and N'luhammacl lrfan S/ o Khanzadir havc preferrecl these aPPeals agai^st the imPugncd iudgment dated 06.09.2018 passed b]' the tearned Judge Anti--ferrDrisln Court No )(\/lll'

Karachi l)ivision in Special Case No.288 ot 2018, I'l R' No'11 of 201t1 u/s'

3g7 /302/i24/ 34 PPC r/ w section 7 ol AT A,7997, SPecial Case No 289 ot 2018, F.l.R. No.12 of 2018 u/s. 23(1)(a) of Sindh Arms Act' 201:l anr'l

Special Casc No.290 of 2018, F LIt. No'13 of 201ti u/s 23(1Xa) of Sindh

ArDN Act, 2(Jl3 registered as P.S Quaidabad, Karachi wherebl' the appellants ha1'e been convicted and sentenced as underi

1.Accusecl lmran Khan S/o. Hameed lqbal was convicted and serltenced to death for comrnitting tdfence u/s 302(b) PPC along lvith fine oI Rs.1,00,000/- il rccovered to be paid b the legal heirs oI tlcceasetl Abdur Rauf as compensation a$ Provided u/s 544-A. In case oi default in pal'ment oi fine hc was orclerec] ttr undcr tlr S.l. for sir nlonths. He lvas alsQ convicted under

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section 7(1)(a) of ATA, 1997 and sentenced to cleath and lifle oi Rs.50,000/-, in default thereof orderecl to unctergo S l lor thret mtrntlu for Qatl-c-Arnci o[ deceascd AbclLrr Rauf. Thc accusetl lvas also sentenced R.l. lor seven vears and fine of Rs 25,0t)0/_, in clelault thereof lrr: sha]l lurther undergo 51. for three nlonths tbr committing attemPt to robber) uncler section 393 PPC HP lras also convict€d urder secfion 32'l PPC and scntenced t() Il l' for seven year! with line ot Rs.20,0110/-, in dcfault thcre he shall further undcrgo S.l. for tlrree mcrnths lle r4'as also.onvicted for causing injury to I'!V Umar lVahicl under section 337-l' (iii) PPt l anLl sentenccd to R.l. Ibr tirree years h'ith fine oi Rs.20,000/- as daman to eictim, in case of default there.rf hc was ordcrctl k) unclergo S.l. lor three months Dlore. He was convicted under scction 7(:lxc) of ATA, 1997 and sentenced to R L for te't ]ears and finc of Rs.25,001)/- in default thereol he was ordcrcd to unllergo 5.1. lor six nronths. The accused was also convicted under section 23(1)(a) of Sindh Arms At1, 2013 and sentenccd to R l. for seven )'ears and fine ol R5.10,000/-, in default thereof, he r^'as ordered to furthcr undergo S.l. for three nronths.

2.Accused Shabir Ahmed S/o, Jawed lqbal q'as convictcd and scntenced to death lor committing oflence u,/s 302(b) Pl'C along ,ith line of lts.1,00,0ml- if recoverecl to tr-- Paid to the lellal heirs of deceasecl Ab,lur RauI as comPcnsation as provitled u/s 544-A. ln case oi d€fault in payrncnt of fine hc rvas ordered to undergo S.l. fr-rr six months. IIe rvas also corlvictcd under se.tion 7(1Xa) ol nIA, 1997 and s!'nten.ed to dealh anJ line of RS.5O,NO/-, in dcfault thereof ordered to untlergcr S'1. for thrce months firr Qatl+-Amd of deceased Abdur I<aut The accused r,'as also sentenccd to R.[. for sevcn yeaF ard fine ol Rs.25,{}00,1-, in dciault thereof he shall further unclcrgo S'l' {or threc months for aommitting attempt to robbery under secti()Il 393 PPC. He was also convictecl undcr scction 12{ Pl'C an'l senten.cd to I(.1. for seven vears lvith line of Rs.20,000/-, irr clefault tircre hc shail further undergo S.l. for threr] lnontlls. Hu \^,as also conviclcd lor causing injur) to PlV Umar Wahi'l undcr section 337-F (iii) PPC and s€ntenced to li.l. for thrcc years witlr fine of 1ts.2|,000/- as dnman to f ictim, in case of deiault thcreol hr-. was ordcred to undergo S.l. for three months more. He was convicte(l under sectionT(1)(c) of ATA,1997 and sentenced to R.l. for ten years and finc oi Rs.?5,01)0/- in default thcreof he rvas ordcred to lnderSo S.l for six months. The accused was also convicted under section 23(1)(a) of 9indh Arms Act,20l3 and sentenccd to R.l for seven years ancl fine of lts-10,t)00/-, irr default thercof, he u'as orclered to further u dergo S'l' for three months-

Accust,.l Muhammad lrfan S/o. Khanzada was 'onvirted nn'l scntenced to dcath for committing offencc u,rs 3{)2(b) PPC a)c'ng lvith linc of Rs 1.00,000/- if recovered to be paid to the legal heirs of cleceased Abdut Rauf as conrpensation as provided u,/s 5.1.1-A. In case of default in Payment of linc he was ordere(l to undergo S.l. for six months. l{e i{as also cc'nf ict'd undcr section 7(1)(a) of ATA, 1997 and sentenccd to cleath and frne of Its.5{),00U/ , in delaull lhereol nrclereJ ttr untltrgo 5'l' ['rr tlrrr<

LtlL months lor Qatl-e-Amd of deccased Abdur Itaui The accust'd was also sentcnced to R.1. lor seven years and fint' trl Rs.25,000/-, in delnult thereof he shall further unciergo S.l. for three oronths Ior conrmitting attcmPt to robbery under sectiun 393 I'PC Hc was also convicted under section 324 PI'C and senteflced to Il-1, for seven Years with fine of Rs 20,000/-, in default thcre hc shall further unclergo S.l. Ior threc months. Ile \^'as also convicted for causing injury to PW Unrar Wahid under section 337-F (iii) PIa!- and scntenced to l{.1. Ior thrt'e 1'ears with fine of Rs.20,000/- as darnan to victim, ir case of clefault thereof he r,vas ordered to undcrgo S.l. for three month5 more I le lvas convictcd under scction 7(1)(c) nt ATA, 19,7 and sentenced to I{.1. for ten years antl fine of t<s.25,000/- in rlciault thercof hc was ordercd to undergoS.l. loi six nonths.

All the s€ntences u'ere ordered to be run concurrently excePt fine aid daman, llowever, bcncfit of section 382-8 Cr.PC was c>(tende(i to the appellants.

2.the brief facts of the case are that on 29 01.2m8 at about 23110 hours SHO P.s. Quaidabacl lnsPector Muhammad Ali Marwat returned at P S' rvith rcference to daily diary entry No.43 at about 2125 ho rs along with airested ac(used ltuan and Shabir as rvell as anns, ammunition, one motolcycle and 154 Cr.P.C. 5tatement of comPlainant N'tuhammad Zahiq whcrein he l1arrated that his son Abdur Rau[ rvas Posted as Constable No.148207 at 44 Wind SBR Mirpur lr'lathelo Sindh, rvho came to Karachi in order to avail leave. On the same day hc along with his son's lriend Umar Wahid (police constable) relatives Sulen,an and Noorul Bashar came a[ 89 Quctta llashmi Hotei for having cttp of tea. It was about 9:15 p rn rvhcn his son Abdur Raul along with Umar Wahid went outside lhe hotel at the distance oI ten Paces at main road oPPosite Taj Eleckonics shop lor some talk. Both lverc talking ia'ith each other when all of a sudclen thrce culPrits tluly armed with pistols came on the nrotor(ycle bearing No.KIU-7877' Thcy b-v shor-r,of lorce Put both oi thcn) in lear and dilecteli thcm h) hancl over their valuablcs. Horvever, Abdur RauJ and Umar Wahid rcsisted the robbcry. All three,rccused started straightway firing upon them in or(ler to corirrnit their Qatl-e-amd as l^'cll as to create terror irr the Scnernl Public As a result thereol, Abdur Rauf and Umar Walxd sustained firearm injulies and fell down. The complainant and the Public rushed towarr"ls the culprits and succeeded to catch hold of tho robbers, \a'hile the third one managerj his cscaPc bv firing in the air. Tle public who had captured the culprits maltlcated them before the policc arrived. ln the rneanwhile SHO I'olice Slation Quaidabad Inspector Illuhammad Ali luarwat along-

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with other police oificials arrivcd at the spot and aPprehended both the captured accused. He also recovered Pistols hom them as well as sectrred four erlrpty bullets oI30 bore and onc motorcycle bearing No.Kll-7877 of black colour from the spot. Injured Abtlur Rau[ ancl Urnar Wahid rvere dispatchcd to JPMC in Erlhi Ambulance. lnjured Abdur Rauf succumbed to his injuries on the way to hosPital. On inquiry bv the SH() accusL-d disclosed thcir names as lmran S/o. Hamecd Cul and Shabir S/o. |aved while the nane of absconding accuscd was disclosetl as lrfan S/o Khanzada. The SIIO prepared the memo of arrest and rccovery so also recorded statement o{ comPlainant undet se.tion 1t4 Cr,P.C. at the sPot He sealed the pistols, bullets and emPties at the sPot, B'hile scai was signed by complainant and I'W Muhammad Salnan and Noorul Bashar' SHO lnspector Nluhammad Ali Manvat rctuffled back to the l)olice Station along with arrested accused and case proPertv, where he incorpr:rratcd lhe stateolent of complainant in b!,ok of 15{ Cr'PC maintaincd at P.S. lle also registcrcd two sePalate FIRS against both the accused under section 23(1)(a) oI Sindh Arms Act,2013 for Posscssion oi unlicensed arms and ammunition,

3.AJter registration of the FIRS, usual investi8ations were carried out as such on the conclusion of the in1'estigations I.O- submilted the chargc sheets against the accused beforc the Adminishative ludgt', Anti- 'ferrorism Coufis, Karachi I_{orvever, name of accused Muhammad Irfan was placed in column No.2 ol charge sheet with retl ink as absconcler. Later on hc h'as also arrested on 72.l)220la in conseqllence of an encounter with the policc. His identification parade ivas conductod belore the Magistrate and subsequently, he iaas scnt uP through suPPlemcntary ctlarge shect dated 09.03.2018 for trial.

4.The charge was flamed against the a(cuscd Persons to lt'hich thcv pleaded not liuitl.v and claimed thcir trial 5- In ordc! to prove its (ase the Prosecution examined 10 PW's who cxhibited various documents and other items in suPPort of the prosccution case !\,here after the prosecution closed its sidc. Thr: statements of all the accused Imran Khan, Shabir Ahmed and Muhammad Irfan as envisaged u/s 342 Cr.P.C were recordcd wlrerein ther- denied rhc allegations against thern and claimed false imPlication. The accuscd lmran, l

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Khan and Shabir Ahmed neither examinc(l themsclvcs on oath nor called ary witness in support oI their defeflse.ase. Accused Muhammad lrfan however, examined himsell on oath and (alled two DW's in supPort of his defense case of false imPlication by the Police and the rangets.

6.l.caroed Judge, Anti-Terrorism Court-XVIII, Kalachi, after hearing the learned (ounsel for the partics and assessment ol evidence available on record, vitle thc impugned judgrirent dated 06.09.2011i, convictcd and sentenced the appellanls as slated above, hence these aPpcals have tl('cn filed by ea.h of the accused against his corlviction

7.The facts of Lhe case as wcll as evidence Produced bcfQre the trial court find an elaborate mention in the impugned iudgment, thercfore, the same ale not reproduced here so as to avoid duPlication and unnecessary rcpetition.

L L.earnc col.rnsel lor the aPpellants lnuan Khan, Shabir Ahmed and Muhanlmad Irfan af[er the rcading out of the evidence and the impugnccl judgment initially hied to argue the aPPellants' case on merits howevcr in the face of the overwhelming evideice against all tlre appellants on record they decided not lo press the appcals on merits but instead prayed {or reduction of the scntence from thc death Penalt'.v- to onc of life imprisoffnent based on the folloi{'in8 mitigating circumstances (a) that il was unclear as to who fired the fatal shot whlch kille(l the deceased (b) that the very Elightcst of doubt in the Pros€cution case although not sufficicnt a doubt to Icad to the acquittal of the appellants was erlough h) impose the alternate sentence of life imprisoiment instead of denth which was present in this case. In supPort of their ccJntentiorc for a redrrction ln sentence fron dcath to that of life imprjsonment they placed reliancc (,1 Nadeem Ramzan v'fhe State (2fi8 rcNlR 149) and Muhammad Latif v Muharnmad Hanif & 2 others (]989 SCMR 1105)

9.Leamed DPG and the complainant both contendcd that based on the evidence on rc\cord the Prosecution had Provcd its aasc against all tht' appellants beyond a reasonabie doubt and as such the imPugned iudgment did not rcquire intcrference. When, however, the DPG 'w'as

asked b) thc cou \^ hether the mitiBating circumslances raiserl bv- thc appellants justified a reduction in sentence he candidly conceded that .s .r

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matter of law they did iustiJy a reduction from the death penalty to that of life inrprisonment which 1^as also the Position taken bv the comPlaiiant'

10.We have heard the artFmcnts of the learncd counsel for the Parties, gone through the entire evidence which has becn read out by the appcllant and the imPugned iudgmellt with their al]le assistancc ancl have considered thc relcvant lalv including that cited at the bar.

1-1. Having gone ttEough the evidence on rccord we hal'e no doubt that thc prosecution has been able to Prove its case against all thc appellants bcyond a reasonable doubt for thc offerrscs lor which they have been charged. For the lollowing reasons;

(a)that thcre was no delay in registering thc FtR as the 5.154 statement which was latcr recorded in the FtR book was tecorded by PW 2 Muhammad Zahiq (the complainant and eye witncss) on the spot irnmediately aJter the in(ident and thus there was no tirne ttr cook up a false case against anyone.

(b)the appcllarts Imran and Shabir are named in thc FIR with specilic roles. That on their arrest at the sPot tl'rey immediatclv discloseLi thc name of Muhammad lrfan as their accornplicc ra'ho lhe police werc able to tlack down and arrest.

(c)that eyc witnesses Pw 2 lr4uhammad Zahi,1 who was also the complainant; PlV 6 Umer Wahid r'r'ho was shot dr.rring the robber)' anrl PlV 8 Muhammad Suleman all saw the aPPellants aitemPtin8 to rob the de(cased and PW 6 Umer Wahid h'as even one of th!' pcrsons who was being robbed who was shot bv the aPPcllant's on his rcsistan.c.

(l)TIut I'jW 6 Umcr lvahid who was shot durirg the robbery i']v the appcllAnts also saw the aPPeliants shoot the de(eased when they br-rth put up resistance to the robbery. PW 6 Umer Wahid was a trained policcmen an,.l thc cle<eased was a hained langer albcii oft duty sir it lvas quite natural due to thcir traitring for them k) resist the robbcry. Thcre is no doubt that he was shot as Proved b) the evidence of PIY N'ILO who Save evidence and producetl medical repolts to that ef{ect. Pw 6 Umer Wahid also rernained in Iinah Hosrital for his heatnlcnt That IiW 2 Nluhammacl Zahiq and l,M Muhdnunad Sulemen also saq' the appcilants shcr(rt both P!! 6 Lmcr lvahid ard the dcceased. It is clear lronr the e\c lvitness evidence that the aPpellants shot the deceased and that he later died on account of his firearm iniurY as.onfirnrcd b,v thc evitlenct' of the PW MLO and his Post moltcm rePort.

(e)That thc eye u'itness€s had a reason for being where the,'- were at the time of the incident as thev were drinking tea at the Quelta Hotel in order to catch up with the deceased u'ho was a ranger nnd had coBre home on leavc.'l'll.ey all lived lftally and rverc all relatcd.

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to thc deceascd except P!\'6 Umer Wahid who was a lriend of the tleceased and as such in our vienv they were natural witnesses anLl not chance witnesses.

(f)That nonc of lhe eve witnesses or any other PVV had any enmitY f ith thc appellaflts and had no reason to f.Jsely imPlicate them in this case cspecialiy the comPlainant who was the fathcr of thc tlcceased ancl rvould have wantcd the actual rnurclererc of his son to face justice and not sonle othcr random Person.

(g)That boih the aPPellants Imran anel Shabbir wen'arested on the spot and as such no question of their misidentilicatlolr arises'

(h)Tlut appellant Muhammad [rian after his arresi was corrc.tly pickcd out al the identiJication parade bv tfuec eye witnesscs ancl ivas assigned a specific role whose evidence wc coflsidcr to be rcliable, tlust u'orthy and conJidencc insPiring and in Particular in tcrms oI the identification of Muhanmed lrfan and the other two appellants Imran and Shabir

(i)That the pistols ftom each of the appellarrts lmran and Shabir \\,cre recole;ed on the sPot whilsi the pistol usccl by Muhamm'1d Irian was recovercd on his later arrest by tlrc Police.

(j)Thal empties and blood stained ealth were recoverert from the spot.

(k)ll,lat the empties matched the lecoveled Pistols through '1 positive FSL rcport.

(l)lhat the chemical examination of the blcxrd stained earth was positive

(m)l hat the merlical elidence supports the oral evidencc' The tact that there was no blackening surroundinS the wouncl indi.ates that the shooting took place from 3 lcet away or more which also [its in iv ith the prosecution case,

(n)That thc bike v"'hich thc aPPellants came on in order to rob the de(eased and PW 6 Umer Wahid '^-as recovered from the sPot ((, That since the appellants lrnran and Shabir wcre apprehended on the spot after the attemPted robbery and mulder of the deceased t y sc,rne of tht PW's along i^'ith members of thc Public this would ac(ount for the injuries which the aPPellants receivcd' This is l]ecause it is not uncoDrmon in our societv tl'tat if such a Person is caught rer'l handed by the public the public very often beat him dlrd in some cases beat the aPPrehcnded culPril tc' death. In this case a police PW u'ho r,'as the police mcn who immediatell' reached tht' spot aiter the incident rescued the aPPellants from the anger of thc public ancl prevented their further beating.

(pr)That all the PW's colroborative each other in all matcrial respects and even if there are any conlradictions in lhd e!idcnce 'rf lhe I'ui s we considcr these contradictions as minor in nalure and nol malerial and ocrlainly not of such nlatcrialily so as lo aflect lhe prosgcution case,

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and thc conviction ol lhe appellants. In this respecl reliitncc is placed on Z:lkir khan 1'Sta(c (lsi)5 SCMR 1791)

G) Tlut the prosccution cvidcncc pro!'ides a believalrle chain of evitlence frorn thc time of lhe rlcceased and I'jIV 6 Umer l{ahitl I drinking tea at the Quetta hotel with their relatives and lriends to their altempted robben', muldcr of the dccettsed bv fire arrrr and fireanr iniurv to I'!! 6 Umer !\'ahid to thc arrest ot' the appellants Inrran and Shabir on the spot u,hich is suPPorted bv the metlical cf idence; thc recovery of thL- murder rvcapons (pistols) from thern along with enpties and blood stained earth antl positive FSI- and chcmical rcpolts. The sane is the case for apPellant Muham,nad lrfan except that he was not arrested on the spot.

(r)'lhat the cxhibited CRO of cach appellant shoh's him to be a habitual and hardened and dangerous criminal

(s)Ihat although it is for the prosecution to provc its casc beyond a rcasonable doubt ancl it is aot ior the accused to prove his innocence we do not (ind the delense of the appellants that they wcre falsely implicatcd in tlis case believable in the face of the ovenvhelming evidence againsl them and for lhe reasLrns clis<ussed above.

'frlrning to the question of sentence and ra'hether lhere are any rnitigatin8 (ircunl5tan(es, which justifies a redu(tion in the same keeping in vierv thnt that both the DPG and thc complainant have not obie(ted to a reduction in sentence.

12- The iurpugned judgment Ior murder has sentenced cach of the appellants to death. ln our view the prosecution has not bcen able to prove which oI the appellants tired the fatal shot that killed the deceascd aid generaily in such type ()i cascs the superior <ourts have allor,'ed a reduction in sentence from that of the dcath penalty to Iile inrprisonmerrt. Thus, undcr these circrrmstances ive consider it aPProPriate to reduce the death scntence to that of imprisonment for life in respect of each of thc appetlants. In this respect reliance is Placed on the casc of Ali Bux V State (2U8 fN{R 3fl) },rhich held as under at P.358;

" lhnl a sn1tu ce of dr.ttlt ay otdi nnly bt tli lhheltl t'here rl is nol clertr tto l llE leco i ns lo uhiclt ol lhe cullltlls lnd caustrl IIE fi nl i,ttunt lL) lhL dau'nstl- lot dll the rcdsons tt'aordcd ohot,L' r havc decirkd lct {\er( isc ulutia lhe nnllcr of tlle dppcll] n t s' sn l.lrces of i.nl h ."

13.The concept of exercising judicial caution $'hen dc,ciding wh.ther lo ahnrJ th( death penalq or lhc alternalive ol lrfc lmPrlsonmcnt wds

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also reiterated in the rccent SuPrcme Court casc of Ghulam Mohyuddin V Stare (2014 S('lvtR 1034).

14.Thus, kecping in vierv the above legal position and by excrcising judi.ial caution we hereby uphold the impugred iud8ment and dismiss the appeals w'ith the only variation being that the sentences handcd dor'" n to the appellants for death shall be reduced to that of life imPrisonnrcnt in respect of each appellant and apart Irom this nlodilication in serrten.c ill thc iDpugned iudgment all Qther convictions and sentences, finus, penalties imposed etc are upheld B'hich sentences shall run conr:urrentll and thc appellants shall have the benelit of 5.382 B CI.PC and thc conlirnlation rcference is ans'lvered in the negative- ir The appeats and conJirmation rcfetence ate disPosed ol in the atr(ive terrn!

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