KARACHI, Dec 14: The anti-terrorism appellate bench of the Sindh High Court set aside on Friday the death sentence awarded by an anti-terrorism court to four accused in the alleged killing of three policemen.

The bench ordered the appellants to be freed.

The bench, comprising Justice Ghulam Nabi Soomro and Justice Ataur Rahman, allowed the appeal because the prosecution could not produce corroborative evidence.

The four appellants, Mohammed Hashim, Mustafeez, Abubakar and Mohammed Saleem, had preferred appeal against their conviction.

They were charged with firing at a police party which was allegedly on patrol in Bengalipara, Ibrahim Hyderi. It was the case of the prosecution that three policemen, Sher Mohammed, Shafi and Riaz Mohammed, were killed when 20-30 persons, including the appellants, fired at them.

Mohammad Saleem was arrested by the Ibrahim Hyderi police on a charge of killing a policeman. The police registered an FIR No 56/98 and named Mohammed Saleem and three others in the case. The police, on the basis of the FIR, submitted the challan to a military trial court.

In the course of the proceedings the court found all the accused guilty and awarded death sentence to all of them. The Lawyers for Human Rights and Legal Aid (LHRLA), which was pursuing the case since the beginning, strongly protested the sentence, as a child under 18 years of age could be awarded neither life imprisonment nor a death sentence.

Zia Awan of the LHRLA filed an appeal with the military appellate court against the sentence and the court set aside the judgment of the trial court and acquitted Saleem, and awarded life imprisonment to the three other accused. On May 12, 1999, Saleem was released from prison.

After the judgment of Supreme Court, all the cases pending before the military trial courts were transferred to anti-terrorism courts, including the cases in which conviction were passed but not executed, conviction was also set aside and the cases were transferred to ATCs for trial.

The case of Saleem and others was transferred to an ATC and police re- arrested Saleem on the same charge. The ATC-1, headed by judge Rahmat Husain Jaferi, tried the case under the same FIR (No 56/98) under section 302/34 of Qisas and Diyat Ordinance. The court once again awarded death sentence to Saleem and others.

Advocate Awan filed an application against the verdict of the ATC with the Sindh High Court. During the proceedings, he argued that Saleem was arrested after four days of the registration of FIR and his name was not mentioned in the FIR.

He maintained that his client had been tried for this particular crime and consequently acquitted and he could not be tried for the same crime twice with same evidence, witnesses and testimony. Doing this would amount to a case of double jeopardy, which was a flagrant violation of both national as well as international laws.

He also cited article 13 of the constitution which said that, “No person shall be prosecuted or punished for one offence more than once.” He also mentioned section 403 of CrPC according to which “A person who has once been tried by a court of competent jurisdiction for an offence, and shall, while such conviction or acquittal remains in force not liable to be tried again for the same offence.”

He submitted that Section 26 of the General Clause Act also denounced double jeopardy as being against the concept of natural justice.

His contention was that no appeal was filed by competent authorities after the petitioner’s acquittal, which could have provided the only legally acceptable justification for reopening the case. This showed that Saleem’s acquittal was regarded as just and valid by all the parties concerned.

During the proceedings the matter of Saleem’s age had also cropped up due to the non-availability of birth certificate. The court medically examined the boy and the Police Surgeon Office declared that he was 18 years old, while the apparent look and physical structure of the child showed that he was not more than fourteen.

Mr Awan prayed the court to declare the second trial of the petitioner illegal, mala fide and ultra vires, and sought direction to the authorities to release Saleem in the case and declare his arrest illegal and without lawful authority.

The defence case was that the prosecution story was baseless. Their contention was that the policemen were not on a patrol. They were in civilian dress and had no service weapon with them.

The defence also pointed at the contradictions in the prosecution story about the timing of the incident.

The court conceded the arguments and acquitted Saleem and others. Additional Advocate-General Habib Ahmed appeared on behalf of the state. Khalid Mahmood and Kaleem Dogar represented the other accused.