2016 PLP 315 (GBLR)

DR. RANA MUHAMMAD SHAMIM, C.J.

(1). Since all the above Criminal Appeals have arisen out of the common impugned Judgment dated 09.04.2015 in Criminal Appeals Nos. 34/2014, 35/2014, 36/2014 and 40/2016 under FIR No. 20/2011 passed by the learned Gilgit-Baltistan Chief Court and the same were disposed of by this Court through a common/consolidated short order dated 09.06.2016.

2. The brief facts of the case are that an FIR No. 20/2011 was registered at Police Station Aliabad Hunza against the aforementioned respondents along with other rioters/accused on 11.08.2011 with the allegation of leading 700/800 rioters and putting on fire Government vehicles, police station building, destroying Government properties, police record, looting police ammunition through breaking police Koth/police malkhana and record room and delivered anti state speech and Slogans, setting on fire Police Station, Police Vehicles and causing damages to Government properties and attacking on public servants, creating Haraaba causing hurt to police personnels.

3. The prosecution after conducting investigation and recording oral as well as documentary evidence along with circumstantial, medical and expert evidence, which fully corroborated the prosecution version and submitted the challan before the learned Trial Court. In the challan the Investigating Officer of the case narrated again the same facts. The SHO Police Station Aliabad stated that the Internally Displaced Persons (IDPs) gathered in front of the United Bank Limited (UBL) for demanding payment of money so granted to them as compensation being effectees of Attabad lake disaster, started shouting against the UBL authorities. Subsequently some other people of the area started gathering who instigated each other which become an uncontrolled mob. In the meantime a group of rioters led by accused Baba Jan resident of Nasir Abad, Ahmed Khan resident of Shishkat, Sultan Ishaq resident of Sirt, Imam Dad, Sahib Khan, Muhammad Shah, Ali Gohar, Deedar Hussain son of Shah Gul Hayat Sirt, Raheem Muhammad, Iftikhar resident of Shishkat got violent and attacked the Police Station Aliabad and started beating FC Abdul Qayyum who was present on gate and FC Saleem, HC Wazeer Aman, FC Saifullah, FC Ayub and FC Zafar Iqbal present in Police Station Aliabad. They put on fire Government Vehicle (Datson) bearing No. GLT-A 4549 which was parked inside the Police Station. After that the violent mob gathered inside the Police Station and burnt into ashes all the record and documents of the Police Station, case files and case properties kept in Malkhana. They also broke the koth/malkhana and looted the ammunition kept in koth 08 Nos Semi Rifles, 13 rounds, 980 rounds of G-3 1200 rounds of 7.62MM, 110 rounds of MP5, 40 rounds of Pistol 30 bore, spare magazine of every kind of weapon and necessary items of ammunition and ammunition for DPL which includes SMG 08 Nos, 30 bore pistol 13 Nos with spare magazines and necessary articles, ARP which included SMG 02 NOS, Gas guns 02 Nos, shells 02 bags and ammunition of police station which included one Gas gun, Shell 35 Nos, hand grenade 02 boxes and also put on fire the uniform of the police personnel, their beddings, boxes and all the items. Whereafter they also put on fire the Government Vehicle of Police Station Gulmit parked inside the workshop situated in front of Police Station Aliabad. After that the Police Station and SHO house was also put on fire and then the violent mob advanced towards Bazar. The complainant along with the other Police personnel in the police Station did try to prevent the accused by tear gas but they became uncontrollable and have damaged the government property including the building of Police Station Aliabad costing millions of Rupees.

4. After completion of the investigation conducted by the JIT, first incomplete challan was submitted on 04.10.2014 in the learned trial court. However some of them were released by the Police under section 169, Cr.P.C. placing their names in column No. 2 of the challan. Proclaimed offender/absconder accused Ameer Ali was arrested on 13.10.2011 and proclaimed offender/absconder accused Rashid Minhas was arrested on 17.10.2011. Accused Sarfraz was arrested on 27.10.2011 and another incomplete challan was submitted in the Trial Court on 12.11.2011. It was also reported in the back of the said challan that proclaimed offender/absconder accused Fazal son of Gohar Hayat resident of Aliabad has committed suicide. On 10.09.2012 proclaimed offender/absconder accused Musa Baig Driver son of Abdur Rehman resident of Shishkat Gojal was arrested and incomplete challan Ex.PW-20/A was submitted before Trial Court on 29.09.2012. However, on 30.05.2013 proclaimed offender/absconder accused Shukurullah Baig alias Mithoo was also arrested and incomplete Challan Ex.PW-24/B was submitted before Trial Court on 01.07.2013.

5. Accused Iftikhar Hussain, Irfan Karim, Irfan Ali, Salman Karim, Sher Khan, Baba Jan, Aleemullah Khan, Ahmad Khan, Ghulam Abbas, Amir Ali, Rashid Minhas Anees and Sarfraz were formally charged on 29.11.2011 wherein all the accused pleaded not guilty and claimed trial. Charge of proclaimed offender/absconder accused namely Meher Ali, Mithoo, Nasir, Musa Baig and Deedar Ali was also framed by the learned Judge Anti-Terrorism Court No-II Gilgit-Baltistan on 05.09.2013 wherein the accused pleaded not guilty and claimed trial.

6. As per learned Trial Court the prosecution to prove their case against the accused produced and examined 28 Prosecution Witnesses (PWs).

7. After closing the prosecution evidence the present accused were examined under section 342, Cr.P.C. The accused denied to record their statements on oath under section 340(2), Cr.P.C. in disproof of the charges leveled against them. The accused also denied to produce any DW in their defense except accused Baba Jan who provided names of DWs to be examined. Accordingly the statements of DWs Numberdar Juma Khan, Shukurullah Baig and Muzaffar-ud-Din Shah were recorded.

8. As per learned trial Court the prosecution had relied on the following categories of evidences:- i. OCULAR EVIDENCE ii. CIRCUMSTANTIAL EVIDENCE iii. CONFESSIONAL STATEMENT OF ACCUSED iv. RECOVERIES v. MEDICAL EVIDENCE vi. ABSCONSION.

9. As per prosecution it was a daylight occurrence and the FIR had been lodged promptly. The accused were nominated and charged in the promptly lodged FIR and specific roles were attributed to the accused. The confessional statement of respondents/accused have been recorded under section 21-H of the Anti-Terrorism Act, 1997 wherein respondents/accused Iftikhar Hussain, accused Baba Jab, accused Ahmed Khan, accused Ameer Ali, accused Irfan Karim, accused Irfan Ali, accused Salman Karim, accused Sher Khan, accused Aleemullah Khan, accused Ahmad Khan, accused Ghulam Abbas, accused Amir Ali, accused Rashid Minhas Anees accused Musa Baig and accused Sarfraz had voluntarily confessed their guilt. Investigation Officer has recovered 2 magazines of SMG and 79 live rounds of 7.62 mm on the pointation of the accused Iftikhar Hussain in presence of Magistrate. The other recoveries of crime articles were also made on the pointation of the accused respondents in presence of the learned Magistrate.

10. That the medico legal reports and injury sheets of injured Police officials proved that the accused have attacked on Police Station and had burnt the Police Station Aliabad and the accused had also put on fire the Government vehicle No. GLT-A 4549. That after fulfilling the legal requirements accused Meher Ali, accused Deedar Ali and Driver Nasir have been declared as proclaimed offenders under section 19(10) of The Anti-Terrorism Act, 1997 and their absconsions is fully proved and the respondents/accused have given a huge loss to the Government exchequer.

11. The learned Trial Court discussed the prosecution evidence one by one as under:- (i) (PW-1) Head Constable Muhammad Ismail is an injured eye-witness of the occurrence. The said PW stated in the examination-in-chief the "the mob entered in the Police Station and broke the window of the kitchen and entered inside the building of Police Station." The said PW further stated that "among them I recognized Iftikhar Hussain, Irfan Karim, Irfan Ali, Salman Karim, Sher Khan, Aleemullah Khan, Ahmad Khan, Ghulam Abbas and Mithoo etc.". The said PW further stated that "The Government Property and the personal belongings of police officials were destroyed". Iftikhar along with other persons proceeded towards the koth (Malkhana) and after some time they came back holding weapons etc". The said PW further stated that "when I reached the field near the SHO house, some persons, who had covered their faces, started beating me. I was injured and managed to reach Murtaza Abad in a Truck, where I got a taxi and went to Asqurdass Dispensary, where some injured police officials were admitted. I got some treatment and the next day I went to home." The said PW specifically charged and nominated the above named accused. In his cross-examination the said PW stated that, "I knew the persons named as accused by me, prior to the occurrence." The said PW further stated in his cross-examination that, "I know accused Iftikhar right, when I assumed my duties in Hunza." Despite lengthy cross-examination, the learned defence counsel has failed to shatter the said PW, rather he himself got clarified and confirmed from the said PW about the identity of nominated accused as mentioned by the said PW in his examination-in-chief above. Ocular version furnished by the said injured witness is fully corroborated with the statements of PW-4, PW-7, PW-9, PW-11, PW-15, PW-16 and medical evidence and also corroborated with the confessional statement of accused. The statement of the said PW is worth of credence and confidence inspiring and believable. (ii) (PW-2) Rehmatullah Baig has been declared hostile. (iii) (PW-3) Ghulam Jaffar had been declared hostile, but in his examination-in-chief and his cross-examination the said PW has confirmed the facts regarding setting on fire the police pickup by the rioters near the police station. The said PW stated that in his examination-in-chief that when "I returned back to workshop, where the police pickup was not found there. It was being set on fire near the police station." In his cross-examination the said PW stated the "when I came back to my workshop, the police pickup was put on fire and few persons were present there." Although the said PW has been declared hostile, but the said PW has confirmed regarding putting on fire the police pickup by the rioters at the time of occurrence. Mere declaring a witness hostile does not shatter the reality of his evidence and such witness does not loose his credibility. It is an admitted fact that the police pickup has been burnt by the accused of the instant case, as such, I consider this statement of the said PW regarding the facts of the case and hold it, as corroborative piece of evidence against the accused. The statement of the said PW is fully corroborated with the statement PW-11. (iv) (PW-4) Muhammad Yaseen is the eye-witness of the occurrence. The said PW stated in his examination-in-chief that "when I went out of the police station to see what was happening, I found that the mob was chanting slogans against Police. The mob was equipped with stones and sticks etc". The said PW further stated that "I saw Iftikhar Hussain and Ahmed Khan among the mob. After a while smoke started emitting from the police station. In his cross-examination the said PW stated that, "Almost all the participants of the mob were carrying sticks and stones." The said PW further stated that, "I do not know the participants of the mob, except the accused person." Despite lengthy cross-examination, the learned defense counsel have failed to shatter the said PW, rather they themselves got confirmed and verified from the said PW about the presence of accused, with stones and sticks at the place of occurrence. (v) (PW-5) Raja Baba Khan SP (Retd.) is the eye-witness, who has recorded the confessional statement Ex.PW-5/A of accused Ghulam Abbas and confessional statement Ex.PW-5/B of accused Ahmed Khan under section 21-H of the Anti-Terrorist Act, 1997. The said PW has verified and authenticated the confessional statements Ex.PW-5/A of accused Ghulam Abbas and confessional statement Ex.PW-5/B of accused Ahmed Khan which is reproduced as under:- Confessional statement Ex.PW-5/B of accused Ahmed Khan. The said PW has verified and authenticated the confessional statements Ex.PW-5/A of accused Ghulam Abbas and confessional statement Ex.PW-P/B of accused Ahmed Khan. (vi) (PW-6) Magistrate Salman is the eye-witness, in whose presence the IO has prepared site plan Ex.PW-6/A of the place of occurrence on the pointation of accused Shukurullah Baig alias Mithoo. In his examination-in-chief the said PW stated that, "in my presence, accused Shukurullah Baig stated that, he has pelting stones from the point No. 01 of the site plan to the kitchen." On the pointation of accused Shukurullah Baig alias Mithoo, IP Safdar has prepared site plan Ex.PW-6/A in my presence. The site plan Ex.PW-6/A bears my signature and its contents are correct." While preparation of site plan in presence of the said PW accused Shukurullah Baig has made Extra Judicial Confession before the said PW (Magistrate). The Extra Judicial Confession made by the accused Shukurullah Baig alias Mithoo before the said PW, the said PW has narrated before this Court as quoted above. The Extra Judicial Confession made by accused Shukurullah Baig alias Mithoo before the Magistrate being voluntarily and true is proved against accused Shukurullah Baig alias Mithoo within the four corners of Article 40 of Qanun-e-Shahadat 1984. In his cross-examination the said PW stated that, "the site plan Ex.PW-6/A has been prepared at the place of occurrence." The said PW further stated that, "I affixed my seal/office stamp on site plan Ex.PW-6/A on same day at Police Station." The learned defence counsel himself got confirmed from the said PW about the preparation of sit plan Ex.PW-6/A at the place of occurrence, which is corroborative piece of evidence against accused Shukurullah Baig alias Mithoo. The said PW has confirmed and authenticated the site plan Ex.PW-6/A of the plan of occurrence. The statement of the said PW is fully corroborated with the statement of PW-24 and also corroborated with confessional statement Ex.PW-15/A of accused Shukurullah Baig. The testimony of the said PW is worth of credence and confidence inspiring and believable. (vii) UP/HC Muhammad Akram Baig (PW-07) is the injured eye-witness of the occurrence. The said PW stated in his examination-in-chief that "on 11.08.2011, I was on duty at control room at Police Station Aliabad. At about 1300 hours the rioters attacked the Police Station Aliabad. The said PW further stated that the rioters pelting stones at the door of Police Station, till 1330 hours and then they entered in the Police station. The rioters set the police station on fire and after breaking koth the ammunitions were taken. The said PW further stated that I recognized the accused among the rioters namely Baba Jan, accused Iftikhar Hussain, Accused Aleem, accused Fazal, accused Ghulam Abbas, accused Ahmad Khan and another an accused whose name I do not remember now were present at the time of occurrence. The said PW has specifically charged and nominated the above named accused who has participated in the commission of the offence of the instance case. Upon asking question by Mr. Ehsan Ali Advocate for the respondent the said PW recognized and identified the accused Aleem Ullah before the court. In this regard a Court note has been given in the cross-examination of the said PW, which is reproduced as under:- "Court Note:- The PW came out from the witness box and put his hand on the shoulder of the accused Aleemullah and identified before the Court". In his cross-examination the said PW further stated that, "at the time of occurrence, beside me HC Muhammad Ismail, HC Wazir Aman, SGC Ali Ahmed Jan, FC Naeemullah, FC Ghulam Abbas and some reserve personnel were also present in Police Station Aliabad." Despite lengthy cross-examination the learned defence counsel has failed to shatter the said PW, rather he himself got confirmed from the said PW about the presence of the above named eye-witnesses on spot at the time of occurrence. Ocular version furnished by the said injured witness is fully corroborated with the statements of PW-1, PW-4, PW-9, PW-11, PW-15, PW-16 and medical evidence and also corroborated with the confessional statements of accused. The statement of the said PW is worth of credence and believable. (viii) Dr. Khawaja Khan (PW-08) is the witness, who has examined injured HC Wazir Aman, vide injury sheet Ex.PW-8-A and also examined injured FC Shahid Khan vide injury sheet Ex.PW-8/B. The said PW has authenticated the injury sheets PW-8/A, Ex.PW-8/B and confirmed the injuries received by the HC Wazir Aman PW and FC Shahid Khan PW. (ix) HC Inam Ullah (PW-09) is the witness of recovery memo Ex.PW.9/A site plan Ex.PW-9/B of the place of recovery and site plan Ex.PW-9/C of the place of occurrence. Vide recovery Memo Ex.PW-09/A on the pointation of accused Iftikhar Hussain, the IO has recovered two magazines of SMG and 79 live rounds of 7.62 mm in presence of the Magistrate from the stones of a plot owned by accused Iftikhar Hussain and also prepare site plan Ex.PW-09/B of the place of recovery. On the pointation of accused Iftikhar Hussain the IO has prepared site plan Ex.PW-9/C of the place of occurrence in presence of Magistrate. In his examination-in-chief the said PW said that, "in my presence and presence of magistrate accused Iftikhar Hussain disclosed that he and his co-accused Ameer Ali, Meher Ali, Sultan Jan and Mithoo after broken the koth of Police Station Aliabad and distributed the arms and ammunitions by the above named accused." The accused further disclosed that "the arms ammunitions were also distributed among Fazal Karim and Sher Khan etc." In his cross-examination the said PW stated that, "the ammunitions were taken into possession by IP Muhammad Izzat on the pointation of accused." The said PW further stated that, "the site plan Ex.PW-9/C was prepared IP Muhammad Izzat in my presence in presence of Magistrate." The said learned defence counsel for accused Iftikhar Hussain himself got confirmed the said PW about the recovery of ammunitions on the pointation of accused Iftikhar Hussain and also confirmed the preparation of site plan ExPW-9/C in presence of the said PW and Magistrate. The said PW has confirmed and authenticated the recovery memo Ex.PW-9/A, site plan Ex.PW-9/B of the place of recovery and site plan Ex.PW-9/C of the place of occurrence. The statement of the said PW is fully corroborated with the statements of PW-10, PW-25 and PW-28. The statement of the said PW is worth of credence and believable. (x) (PW-10) HC Wazir Aman is the witness of recovery memo Ex.PW-9/A, site plan Ex.PW-9/B of the place of recovery and site plan Ex.PW-9/C of the place of occurrence. The said PW is also witness of recovery memos Ex.PW-10/B. Ex.PW-10/C. Vide recovery memo Ex.PW-9/A the IO has taken into his possession 79 live rounds of 7.62 mm on the pointation of accused Iftikhar Hussain in presence of Magistrate and also prepared site plan Ex.PW-9/B of place of the recovery. Vide site plan Ex.PW-9/C of the place of occurrence, accused Iftikhar Hussain had disclosed the place and points of the place of occurrence in presence of Magistrate (PW-25). Vide recovery memo Ex.PW-/10/A the IO has taken into his possession one DVD Sony 4.7 Gilgit-Baltistan, 120 mm and the IO has also taken into his possession 1 DVD vide recovery memo Ex.PW-10/B and one CD vide recovery memo Ex.PW-10/C. In his cross-examination the said PW stated that, "on the pointation of accused Iftikhar Hussain the IO Izzat has recovered 97 alive rounds of 7.62 mm, which were concealed by the accused in the stones. The place of recovery is a plot of accused Iftikhar Hussain, surrounded by the gardens in three sides and one side graveyards." The learned defence counsel for accused Iftikhar Hussain himself got confirmed from the said PW about the recovery of 79 alive rounds on the pointation of accused Iftikhar Hussain in presence of Magistrate. The recovery is a corroborative piece of evidence, which is proved against accused Iftikhar Hussain. The said PW has confirmed and authenticated the recovery memo Ex.PW-9/A, site plan Ex.PW-9/B of the place of recovery and site plan Ex.PW-9/C of the place of occurrence. The statement of the said PW is fully corroborated with the statement PW-9, PW-10, PW-25 and PW-28 and also corroborated with the confessional statement Ex.PW-22/A of accused Iftikhar Hussain. (xi) (PW-11) Naeemullah is an injured eye-witness of the occurrence and is also witness of recovery memo Ex.PW-11/A, Ex.PW-11/B. In his examination-in-chief said PW stated that, "in the meanwhile the mob came from eastern side and attacked on Police Station. The mob was led by accused Baba Jan resident of Nasir Abad. The members of mob, accused Iftikhar Hussain, accused Ahmed Khan, accused Ghulam Abbas were pelting stones on Police Station." The said PW further stated that, "the members of mob brought the Government vehicle from Workshop and set on fire in front of Police Station. The members of mob also set on fire the vehicle of SIP Muhammad Ilyas. The rioter broken the window of the kitchen of Police Station and entered in the Police Station." The said PW further stated that "I identified accused Iftikhar Hussain, accused Ghulam Abbas, accused Ahmed Khan etc, who entered in the Police Station. From the roof side accused Aleemullah Khan entered in the Police Station." The said PW further stated that "the rioters set on fire, Government vehicle, which was parked inside the Police Station." The rioters set on fire belongings of the police officials." The PW further stated that "I received injuries." The PW has specifically charged and nominated the accused named above. In his cross-examination the said PW stated that, "I know accused Baba Jan, accused Iftikhar Hussain, accused Ahmed Khan, accused Ghulam Abbas and accused Aleem about 4-5 years prior to the occurrence, when I was in police." The learned defence counsel got clarified from the said PW about the identity of the above named accused. Ocular version furnished by the said injured witness is fully corroborated with the statement of PW-1, PW-4, PW-7, PW-9, PW-11, and PW-15 PW-16 and also corroborated with the confessional statements of accused. The statement of the said PW is worth of credence and believable. (xii) (PW-12) HC Talib Hussain is the witness of site plans Ex.PW-12/A of the place of occurrence, recovery memo Ex.PW-12/B, site plan Ex.PW-12/C of place of recovery and recovery memo Ex.PW-12/D. Vide site plan Ex.PW-12/A of the place of occurrence, accused Sarfraz has disclosed the place and point of the place of occurrence in presence of Magistrate (PW-25). Vide recovery memo Ex.PW-12/B, the IO recovered 80 live rounds of G-3 on the pointation of accused Sarfraz from beneath the stones near Altit Bridge in presence of magistrate (PW-25) and the IO has prepared site plan Ex.PW-12/C of the place of recovery. Vide recovery memo Ex.PW-12/D, the IO took into his possession a CD, which was prepared by photographer Shahid Hussain and also confirmed the recovery rounds. In his cross-examination the said PW stated that, "Magistrate was also with us. Accused was also with us in the vehicle." The said PW further stated that "at the time of recovery the accused was set at liberty. The rounds were taken by the accused Sarfraz and handed over to IP Izzat." The learned defence counsel himself got confirmed from the said PW about the presence of Magistrate at the time of recovery. The said PW has confirmed and verified the site plan Ex.PW-12/A of the place of occurrence, recovery memo Ex.PW-12/B site plan Ex.PW-12/C of the place of recovery and recovery memo Ex.PW-12/D. The Statement of the said PW is fully corroborated with the statement of PW-25 and PW-28. (xiii) (PW-13) ASI Javed Alam is the witness of recovery memo Ex.PW-13/A, Ex.PW-13/B, Ex.PW-13/C, Ex.PW-13/D. Vide recovery memo Ex.PW-13/A, the IO took into his possession .12 Bore shot gun No.NIL, Pak Made from accused Sher Khan in presence of Magistrate, vide recovery memo Ex.PW-13/B, the IO recovered one G-3 from accused Salman. Vide recovery memo Ex.PW-13/C, the IO recovered one .30 Bore Pistol bearing No. 33028721, tear gas gun DSA542, SMG 830, .12 Bore Rifle No. NIL from the Courtyard of central Jammat Khana Aliabad. Vide recovery memo Ex.PW-13/D, the IO took into his possession from the Courtyard of Central Jammat Khana Aliabad one G-3 Rifle bearing No. J-55539, Semi Rifle bearing No. 10036312, SMG bearing No. WB07099, Pistol .30 Bore No. 33023469, one .30-Bore Pistol No. 3302843, 4 Nos. magazines SMG, hand grenade 4 numbers, one repeater bearing No. MSC-3190, one shot gun china and .30-Bore Pistol No. NIL. In his cross-examination on the question of learned defence counsel for accused Sher Khan the said PW stated that, "it is correct that accused Sher Khan has Handed over .12 Bore No. NIL, in the Jammat Khana." The learned defence counsel himself got confirmed from the said PW about the recovery of .12 Bore gun from accused Sher Khan. The said PW has confirmed and authenticated the recovery memos. Ex.PW-13/A, Ex.PW-13/B and Ex.PW-13/D. (xiv) (PW-14) SP Haneef-ullah Khan is the witness, who has recorded the confessional statement Ex.PW-14/A of accused Shukurullah Baig under section 21-H of the Anti-Terrorism Act, 1997. The confessional statement Ex.PW-14/A of accused Shukurullah Baig is reproduced as under:- From the above statement the learned Trial Court has held that from creful scrutiny of the said confessional statement of accused it reveals that the said confessional statement has been made by the accused voluntarily and has been recorded by the (PW-14) after fulfilling the legal requirements as provided in law. After considering the evidence of (PW-14), in the considered view of the learned Judge, the said PW has complied with all the requirements of law. The said PW has asked the material questions from the accused and the same are available in the confessional statement of the accused along with his replies. The said PW has also appended the required certificates with confessional statement of the accused. It is pertinent to mention here that the said PW is not associated with the investigation of the instant case. After satisfying himself the learned Judge has held that the confessional statement made by the accused was voluntarily and true. The said PW has confirmed and authenticated the confessional statement Ex-PW-14/A. (xv) (PW-15) UPHC Ali Ahmed Jan is an injured eye-witness of the occurrence. The said PW stated in his examination-in-chief that, "on 11.08.2011, I was on duty at Aliabad Police Station." The said PW stated that, "the rioters started pelting stones on the police station. The rioters broken window of kitchen and entered in police station. A vehicle was parked in Police Station; the rioters set ablaze the said vehicle." The said PW further stated that, "among the rioters, who entered in the Police Station, were accused Baba Jan, Iftikhar, Sultan Jan, Irfan, Amir Ali, Ahmed Khan and Fazal. The accused also holding bottles containing patrol in their hands. The said accused set on fire the police station." The said PW further stated that, "Accused Iftikhar Hussain and Amir Ali have koth of police station and distributed the arms and ammunitions among the rioters." The said PW further stated that, "accused Fazal has started firing with the government arms, while accused Iftikhar Hussain was holding arms and ammunitions in his hand." The said PW has given a true picture of occurrence. The said PW has specifically attributed the role played by the accused. In his cross-examination the said PW stated that, "there were many people, who entered in the police station except the present accused the other rioters, who entered in Police Station, are not present in the court along with the present accused." The said PW further stated that, "the nominated accused were pelting stones on police station and burning the articles of police station. All the rioters were having similar role as attributed to the nominated accused." Despite lengthy cross-examination the learned defence counsel have failed to shatter the said PW, rather they themselves got confirmed and clarified from the said PW about the presence of the nominated accused at the place of occurrence and also confirmed the role played by the accused nominated in examination-in-chief of the said PW. Ocular version furnished by the said injured witness is fully corroborated with the statements of PW-1, PW-4 PW-7, PW-9, PW-11, PW-16 and medical evidence and also corroborated with the confessional statements of accused. The statement of the said PW is worth of credence and believable. (xvi) (PW-16) (Rtd.) Gulzar Hussain is an eye-witness of occurrence and also witness, who has registered FIR Ex.PW-16/A and prepared site plan Ex.PW-16/B and prepared recovery memo Ex.PW-11/A. In his examination-in-chief the said PW stated that, "on 11.08.2011, I was present in Police Station Aliabad. At about 1300 hours, rioters in supervision of accused Baba Jan, Imam Dad, Sultan Hassan son of Shah Gul Hayat and Iftikhar Hussain, the rioters have attacked on Police Station. The rioters set on fire the Govt. vehicle, which was parked inside the Police Station. They attacked on koth and taken the Govt. arms and ammunitions and the rioters set on fire the personal commodities of Police personnel, which consisting of clothes, uniforms, beds etc." In his cross-examination the said PW stated that, "I personally know the accused Baba Jan and Iftikhar Husain." The learned defence counsel got confirmed and identified the accused Baba Jan and Iftikhar Hussain from the said PW. The said PW has confirmed the FIR Ex.PW-16/A, site plan Ex.PW-16/B and recovery memo. Ex.PW-11/A, the statement of the said PW is fully corroborated with statements of PW-1, PW-4, PW-7, PW-9, PW-11, PW-15, PW-16 and PW-28. (xvii) (PW-17) SP Ishaq Hussain is the witness, who has recorded the confessional statement Ex.PW-17/A of accused Musa Baig. The confessional statement Ex.PW-17 of accused Musa Baig is reproduced as under:- The learned Trial Court after carefully scrutiny of the said confessional statement observed that the same has been made by the accused voluntarily which was recorded by the PW-17 after fulfilling the legal requirements. After considering the evidence of PW-17, in the considered view of the learned Trial Court that the said PW has complied with all the requirements of law and made the statement voluntarily. The said PW has asked the material questions from the accused and the same are available in the confessional statement of accused along with his replies. The said PW has been appended the required certificate with the confessional statement of accused. It is pertinent to mention here that the said PW is not associated with the investigation of the instant case. After satisfying himself the learned Judge held that the confessional statement made by the accused was voluntarily and true. The said PW has confirmed and authenticated the confessional statement Ex.PW-17/A. (xviii) (PW-18) HC Muhammad Ismail has already been examined as PW-1. I have thoroughly discussed about the evidentiary value of statement of the said PW. (xix) (PW-19) HC Wazir Aman has already been examined as PW-10. I have discussed the evidentiary value of statement of the said PW. (xx) (PW-20) Muhammad Yaseen already been examined as PW-4. I have discussed the evidentiary value of statement of the said PW. (xxi) (PW-21) Dr. Shahidullah Baig is the witness, who has examined injured Naeemullah Baig. (xxii) (PW-22) SP Tufail Ahmed is the witness, who has recorded the confessional statement Ex.PW-22/A of accused Iftikhar Hussain, confessional statement Ex.PW-22/B of accused Sher Khan, confessional statement Ex.PW-22/C of Salman Karim, confessional statement Ex.PW-22/D of accused Irfan Karim, confessional statement Ex.PW-22/E of accused Irfan Ali and confessional statement Ex.PW-22/F of accused Baba Jan. The confessional statements Ex.PW-22/A, Ex.PW-22/B, Ex.PW-22/C, Ex.PW-22/D, Ex.PW-22/E and Ex.PW-22/F are reproduced as under:- (iii) Confessional statement of Ex.PW-22/C, Salaman Karim. (iv) Confessional statement Ex.PW-22/D of accused Irfan Karim. (v) Confessional statement Ex.PW-22/E of accused Irfan Ali. (vi) Confessional statement Ex.PW-22/E of accused Baba Jan. In view of the above the learned trial Court has observed that from carefully scrutiny of the said confessional statements of accused it reveals that the said confessional statements have been made by the accused voluntarily which have been recorded by the PW-22 after fulfilling the legal requirements. After considering the evidence of PW-22, in the considered view of the learned Judge the said PW has complied with all the requirements of law. The said PW has asked the material questions from the accused and the same were available in the confessional statement of accused along with their replies. The said PW has been appended the required certificate with the confessional statement of accused. It is pertinent to mention here that the said PW is not associated with the investigation of the instant case. After satisfying the learned Trial Court held that the confessional statements made by the accused were voluntarily and true. The said PW has confirmed and authenticated the confessional statement Ex.PW-22/A Ex.PW-22/B, Ex.PW-/C, Ex.PW-22/D, Ex.PW-22/E and Ex.PW-/F. (xxiii) (PW-23) DR. Wali Muhammad is the witness, who has examined injured Abdul Qayyum vide injury sheet Ex.PW-23/A and the said PW has also injured Saifullah vide injury sheet Ex.PW-23/B, injured Zafar Iqbal vide injury sheet Ex.PW-23/C and injured Sabir Hussain vide injury sheet Ex.PW-23/D. The said has confirmed and authenticated the opinion given by the said PW in injury sheet Ex.PW-23/A of injured Abdul Qayyum, injury sheet Ex.PW-23/B of injured Saifullah, injury sheet Ex.PW-23/C of injured Zafar Iqbal and injury sheet Ex.PW-23/D of injured Sabir Hussain. (xxiv) (PW-24) IP Safdar Ali is the IO, who has investigated the case is up to the extent of accused Shukurullah Baig alias Mithoo. The said PW has arrested absconder accused Shukurullah Baig alias Mithoo on 30.05.2013. The said PW has obtained physical remand of the accused from the court. The said PW has prepared site plan Ex.PW-6/A of the place of occurrence on the pointation of accused Shukurullah Baig alias Mithoo in presence of Magistrate and marginal witnesses. The said PW got recorded the confessional statement Ex.PW-14/A of accused Shukurullah Baig alias Mithoo under section 21-H of the Anti-Terrorism Act, 1997 and committed the accused to judicial lockup after obtaining judicial remand from the court. After completion of the investigation the said PW has prepared incomplete challan Ex.PW-24/B against accused Shukurullah Baig alias Mithoo and submitted before the court through Public Prosecutor. In his cross-examination the said PW stated that. "The site plan has been prepared at the place of occurrence in presence of Magistrate." The said PW further stated that, "at the time of preparation of site plan Wajid Karim, Mubarak Ali and Magistrate were along with me, at the time of preparation of site plan on the pointation of accused." The learned defence counsel himself got confirmed from the said PW about the preparation of site plan Ex.PW-6/A of the place of occurrence which has been prepared by the said PW on the pointation of accused Shukurullah Baig alias Mithoo in presence of Magistrate (PW-6). The statement of the said PW is fully corroborated with the statement of PW-6 and also corroborated with the confessional statement Ex.PW-15/A of accused Shukurullah Baig alias Mithoo. (xxv) (PW-25) Magistrate Farman Ali is the witness of recovery memo Ex.PW-9/A vide which, on the pointation of accused Iftikhar Hussain the IO has taken into his possession 17 alive rounds of 7.62 mm and 2 magazines from the plot owned by accused Iftikhar Hussain and also prepared site plan Ex.PW-9/B of the place of recovery. The said PW also witness of site plan Ex.PW-9/C of the place of occurrence. The said PW is also witness of recovery memo Ex.PW-12/B, vide which the IO has recovered 80 alive rounds of G-3 on the pointation of accused Sarfraz and prepared site plan Ex.PW-12/C. The said PW is also witness of recovery memo Ex.PW12/D, vide which the IO took into his possession one CD. In his cross-examination made by the learned defence counsel for accused Iftikhar Hussain the said PW stated that, "we proceeded to the place of recovery on foot. The said PW further stated that, "as per statement of accused Iftikhar Hussain the plot from where the recovery was made belongs to accused Iftikhar Hussain but no documents were with us to ascertain the ownership of accused Iftikhar Hussain." In his cross-examination the said PW further stated that, "the recovered rounds were counted by me. The rounds were 17." The rounds were of Kalashnikov. The learned defence counsel himself got confirmed from the said PW about the recovered rounds from accused Iftikhar Hussain. The said PW has confirmed and authenticated the recovery memo Ex.PW-9/A site plan, Ex.PW-9/B of the place of recovery, site plan Ex.PW9/C of place occurrence, recovery memo Ex.PW-12/B, site plan Ex.PW-12/C and site plan Ex.PW-12/A of the place of occurrence. The statement of the said PW is fully corroborated with the statements of PW-9, PW-12 and PW-28. The evidence of the said PW is worth of credence and believable. (xxvi) (PW-26) IP Jahangir Shah is the witness who has investigated the instant case up to the extent of accused Musa Baig. The said PW has arrested accused Musa Baig on 09.10.2012 and obtained physical remand from the court. The said PW has got recorded the confessional statement Ex.PW-17/A under section 21-H of the Anti-Terrorism Act, 1997 and committed the accused to judicial lockup after obtaining judicial remand from the court. After completion of the investigation the said PW has prepared challan Ex.PW-26/A. (xxvii) (PW-27) SP Retd. Bashir Ahmed is the witness who has recorded the confessional statement Ex.PW-27/A of accused Aleemullah alias Ali and confessional statement Ex.PW-27/B of accused Amir Ali and confessional statement Ex.PW-27/C of accused Sarfraz under section 21-H of the Anti-Terrorism Act, 1997. The confessional statement Ex.PW-27/A, Ex.PW-27/B and Ex.PW-27/C of the above named accused are re-produced as under:- (iv) Confessional stateent Ex.PW27/B of accused Ameer Ali. (ii) Confessional statement Ex.PW-27/A of accused Aleemullah Khan. (iii) Confessional statement Ex.PW-27/C of accused Sarfraz. The learned Trial Court after carefully scrutiny of the above confessional statement of accused observed that the same has been made by the accused voluntarily which was recorded by the PW-27 after fulfilling the legal requirements of law. After considering the evidence of PW-27. The learned Judge of Trial Court has observed that the said PWs have complied with all the requirements of law. The said PWs have asked the material questions from the accused and the same are available in the confessional statement of accused along with his replies. The said PWs have been appended the required certificate with the confessional statement of accused. It is pertinent to mention here that the said PWs were not associated with the investigation of the instant case. After satisfying himself the learned Judge of Trial Court has held that the confessional statements made by the accused were voluntarily and true. The said PW has confirmed and authenticated the confessional statement Ex.PW-27/A, Ex.PW-27/B and Ex.PW-27/C of the accused. (xxviii) (PW-28) DSP Muhammad Izzat is the witness who has investigated of the instant case along with JIT member DSP Fida Ali. The said PW has recorded the statements of PWs under section 161, Cr.P.C. On 20.08.2011 the said PW has arrested accused Iftikhar Hussain and other 17 suspects accused and obtained physical remand from the court. On 23.08.2011 the said PW has obtained warrant of arrest under section 204, Cr.P.C. against accused Baba Jan and other 14 accused. On 26.08.2011 the said PW has arrested accused Salman Karim, Sher Khan, Javed Iqbal and Sifat Shah and obtained physical remand from the court. The said PW has recovered 79 rounds of 7.62 mm and 2 magazines of Kalashnikov. On the pointation of accused Iftikhar Hussain from his plot and prepared recovery memo Ex.PW-9/A and also prepared site plan Ex.PW-9/B of the place of occurrence in presence of Magistrate. The said PW has also prepared site plan Ex.PW-9/C of the place of occurrence from the pointation of accused Iftikhar Hussain in presence of Magistrate and the said PW has recorded the statement of marginal witnesses under section 161, Cr.P.C. The said PW has arrested accused Baba Jan on 12.09.2011 and obtained physical remand from the court. The said PW has got recorded the confessional statement Ex.PW-22/F of accused Baba Jan and committed the accused to judicial Lockup. After obtaining judicial remand from the court. The said PW has got recorded the confessional statement of accused Salman Karim, Irfan Karim and Sher Khan and committed the said accused to judicial lockup after obtaining judicial remand. The said PW has arrested accused Aleemullah Khan and Sultan Ishaq on 17.09.2011 and obtained physical remand of the accused from the court. The said has got recorded the confessional statement of accused Aleemullah Khan on 24.09.2011 and committed the accused to judicial lockup. After obtaining judicial remand from the court, accused Ashraf Aman, Ghulam Tahir and Ghulam Abbas have been arrested on 27.09.2011. The said accused has took into his possession to DVDs containing clips of the occurrence vide recovery memo Ex.PW-10/A and Ex.PW-10/B. The said PW has got recorded confessional statement accused Ahmed Khan and Ghulam Abbas under section 21-H of the Anti-Terrorism Act, 1997 and committed the accused to judicial lockup after obtaining judicial remand. After completion of investigation the said PW has prepared complete challan No. 08 dated 03.10.2011 ExPW-28/B against accused Iftikhar Hussain and 09 other accused and placing the names of Meher Ali and 09 others accused as absconders accused in column No.02 of the challan. The said PW has arrested accused Shukurullah Baig, Niamat Karim and Sultan Jan on 06.10.2011 and obtained physical remand of the accused from the court. The said PW has arrested accused Rashid Minhas on 17.10.2011 and obtained physical remand from the court. The said PW has got recorded the confessional statement of accused Amir Ali on 21.10.2011 and committed the accused to judicial lockup on 21.10.2011. The said PW has committed accused Rashid Minhas to judicial lockup after obtaining judicial remand. The said PW has arrested accused Sarfraz on 28.10.2011 and obtained physical remand of the accused from the court. The said PW has recovered 18 live rounds of G-3 on the pointation of the accused Sarfraz and prepared recovery memo Ex.PW-12/B and also prepared site plan Ex.PW-12/C of the place of recovery. The said PW has also taken to his possession video and prepared recovery memo Ex.PW-12/D. The said PW has also prepared site plan Ex.PW-12/A of the place of occurrence. The said PW has got recorded the confessional statement of accused Sarfraz under section 21-H of the Anti-Terrorism Act, 1997 and committed the accused to judicial lockup after obtaining judicial remand. After completion of investigation incomplete challan Ex.PW-28/C was prepared on 04.11.2011. In his cross-examination the said PW stated that, "the burnt articles were taken into possession by the then IP/SHO Gulzar Hussain vide recovery memo ExP.W-11/A." The said PW further stated that, "I have conducted the recovery proceeding against Iftikhar Hussain along with JIT members." The said PW further stated that, "we went to the place of recovery on foot. The place of recovery is situated known as Gurman, where is a graveyard situated and the boundary wall of the plot is belonging to the accused Iftikhar Hussain." the learned defence counsel himself got confirmed from the said PW about the recovery of burnt articles and alive rounds from accused Iftikhar Hussain. The said PW has confirmed and authenticated all the proceedings carried out by him along with JIT members during the investigation. The statement of the said PW is fully corroborated with the statements of all PWs. After closing the prosecution evidence, the learned Trial Court recorded the statement of accused Iftikhar Hussain, Irfan Karim, Irfan Ali, Salman Karim, Baba Jan, Aleem Ullah Khan, Ahmed Khan, Ghulam Abbas, Musa Baig, Amir Ali, Sher Khan, Rashid Minhas, Sarfraz and Shukurullah alias Mithoo as provided under section 342, Cr.P.C. All the aforementioned accused except Baba Jan have denied to record their statements on oath under section 340(2), Cr.P.C., in disproof of charges leveled against them. The accused Baba Jan, however, has produced three (03) DWs namely Numberdar Juma Khan, Shukurullah Baig and Khan Muzaffar-ud-Din Shah. The statements of the said DWs were recorded. From perusal of the said statements, it reveals that the story narrated by the said DWs is not correct in the light of the statement of the accused Baba Jan recorded before the learned trial court under section 342, Cr.P.C. it is pertinent to mention here that accused Baba Jan admitted his presence at the place of incident at the relevant time of occurrence in his statement recorded under section 342, Cr.P.C. before the learned Trial Court.

12. The learned trial Court after hearing the counsel of the respective parties, evaluating the material evidence on record and consequent thereto on proven guilty, has convicted all the above accused/respondents under sections 436, 435, 427, 448, 353, 147, 149, 337-A, P.P.C. section 17, Haraaba of the Offence Against Property (Hudood) Ordinance, 1979, section 21-I and 6/7 of the Anti-Terrorism Act, 1997 and awarded various sentences to them in accordance with law. The operative part of the said judgment is hereby reproduced as under:- "Quote" "In the light of the above discussion, I hold that the prosecution has proved the guilt of accused Irfan Ali, accused Baba Jan, accused Aleemullah Khan, accused Sher Khan, accused Rashid Minhas, accused Sarfraz, accused Musa Baig, accused Shukurullah Baig alias Mithoo and proclaimed offenders Meher Ali, Deedar Ali and driver Nasir for mischief by fire to cause damage to property by fire to destroy house etc, mischief by fire to damage to property, mischief causing damage, house trespass, assault on public servant, bodily hurt to the injured persons, rioting, Haraaba (Daketi) and create a sense of fear and insecurity in the area in furtherance of their common object, hence I convict accused Iftikhar Hussain, accused Irfan Ali accused Baba Jan, accused Aleemullah Khan, accused Sher Khan, accused Rashid Minhas, accused Sarfraz, accused Musa Baig, accused Shukurullah Baig alias Mittoo and proclaimed offenders Meher Ali , Deedar Ali and driver Nasir under sections 436/149 read with section 7(d) of the Anti-Terrorism Act, 1997 and sentence them to undergo rigorous imprisonment for life and the accused to pay fine of 1000000/- (Rupees one hundred thousand only) each. The above named accused are also hereby convicted under sections 435/149, P.P.C. and sentence them to undergo (7) years imprisonment and the accused to pay fine of Rs.1000000/- (Rupees One hundred thousand only) each. I convict the above named accused under sections 427/149, P.P.C. and sentence them to undergo 2 years imprisonment. The above named accused are also convicted under sections 448/149, P.P.C. and sentenced them to undergo one year imprisonment. I convict the accused Iftikhar Hussain, accused Irfan Ali, accused Baba Jan, accused Aleemullah Khan, accused Sher Khan accused Rashid Minhas, accused Sarfraz, accused Musa Baig, accused Shukurullah Baig alias Mithoo and proclaimed offenders Maher Ali, Deedar Ali and driver Nasir under section 353/149, P.P.C. read with section 7(h) of the Anti-Terrorism Act, 1997 and sentence them to undergo 5 years' imprisonment. The above named accused are also convicted under section 147/149, P.P.C. and sentenced them to undergo imprisonment for 2 years'. I convict the above named accused under section 337-A/149, P.P.C. and sentence them to pay "daman" of Rs. 100,000/- (rupees one hundred thousand only) and the above named accused are also convicted and sentenced to undergo 02 years imprisonment as Ta'zir. The above named accused are also convicted under section 7(c) of the Anti-Terrorism Act, 1997 and sentenced them to pay "daman" of Rs. 100,000/- (rupees one hundred thousand only) each and sentenced them to undergo 5 years' imprisonment as "ta'zir". The amount of the Daman shall be paid to the injured persons. I convict the accused Iftikhar Hussain, accused Irfan Ali, accused Baba Jan, accused Aleemullah Khan, accused Sher Khan, accused Rashid Minhas accused Sarfraz, accused Musa Baig, accused Shukurullah Baig alias Mithoo and proclaimed offenders Maher Ali, Deedar Ali, and driver Nasir under section 17/20 Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with under section 395/149, P.P.C. and section 7(d) of the Anti-Terrorism Act, 1997 and sentence them to undergo rigorous imprisonment for ten (10) years and to pay fine of Rs. 100,000/- (Rupees one hundred thousand only) each. In default of payment of fine, the above named convicts-accused, shall undergo two years imprisonment. 115. "Proclaimed Offenders/absconder accused Maher Ali, Deedar Ali and driver Nasir are hereby convicted under section 21-L of the Anti-Terrorism Act, 1997 and sentenced them to undergo ten 10 years' imprisonment"

116. Before parting with the file. It is pertinent to mention here that the convicts-accused have given a heavy loss to the Government exchequer by putting on fire the police Station Aliabad and two Government vehicles and have taken the arms and ammunitions from the Malkhana of Police Station Aliabad. The convicts-accused are responsible for the damages given to the Government exchequer. Hence, the cost of all the damages be recovered from the convicts-accused, as an arrear of land revenue, as per assessment and be deposited into the Government treasury. "Unquote"

13. The learned Chief Court while hearing appeals filed some of the respondents against their conviction recorded by the learned Anti-Terrorism Court vide judgment dated 09.04.2015 in Criminal Appeal No. 40/2014 allowed the appeals and set aside the judgment of the learned Trial Court. The learned Gilgit-Baltistan Chief Court was pleased to observe that:- From perusal of prosecution evidence, it is evident that the learned Trial Court did not rely on the whole statement of any of the PWs. So the views and findings of the learned Trial Court are against the principle of acceptance of whole of the statement of any PW or discarding the whole. The learned Trial Court has on the one hand accepted part statement of PWs against some of the co-accused of the appellant and has discarded the other parts of the statement of PWs regarding some accused. This view of the learned Trial Court is without any explanation on his part to that effect. The PWs, who have even charged the appellant, have stated about mere presence of the appellant in the mob. Mere presence of the appellant at the place of occurrence is never sufficient to prove that he shared the common object of the unlawful assembly. Further the prosecution evidence does not show any circumstance or circumstances showing attraction of the offences of sections 6/7 of Anti-Terrorism Act and offence of section 17 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979. The learned Trial Court has very wrongly tried the appellant for the said offences although none of the PWs have stated in proof of any circumstance or occasion that showed involvement of the appellant for the said offences. We are of the opinion that the circumstances of the case stated by the PWs constituted the case in hand, hardly a case of offences of sections 147, 148, 149, 427, 436, 353 and 448, P.P.C. and that also without any concrete evidence against the appellant. The prosecution evidence hardly shows presence of appellant on the place of occurrence but without showing any role of the appellant in commission of the alleged occurrence of even the above referred offences. The second piece of evidence is the circumstantial evidence. In the case in hand, once it is established that reading of ocular evidence against the appellant is not only insufficient in the above circumstances but is wrong also. In such circumstances, circumstantial evidence is not only of no worth but also is irrelevant against the appellant. The learned Trial Court has accepted the statement of the appellant recorded under section 21-H of Anti-Terrorism Act, 1997 and have read the same against the appellant. In our opinion, accepting or reading the confessional statement of appellant recorded under section 21-H of Anti-Terrorism Act, 1997 is really astonishing as the superior courts of our country have repeatedly held such statement as not admissible and irrelevant against the appellant. The prosecution has leveled allegation of looting the weapons and cartridges from Koth (Malkhana) of Police Station. In this connection, we do not find any evidence showing that the police has stored any weapons in the said Koth (Malkhana). In our opinion, the prosecution is bound to prove that they had stored the weapons, allegedly looted by the appellant, in the Koth (Malkhana) of Police Station. Without such proof, merely alleging that the looted articles were stored in the Koth (Malkhana) is never any proof of any theft or looting etc. As to medical evidence, mere proof of any injuries to any person is not sufficient to hold that the same were caused by the appellant. PWs are not stating about causing any injury by appellant to the person or persons examined by the medical officer. So the medical report is not against appellant. In the sequel of above discussion, we hold that the impugned order is very bad in the eye of law and merits reversal. We allow this appeal and set aside impugned conviction and sentence.

14. The learned Advocate-General submits that basically it was an unlawful assembly led by all the respondents. According to the sections 141, 145, 147 and section 149, P.P.C. every member of the said unlawful assembly is equally responsible for their common object of that assembly. He specially referred and readout the said Sections which for convenience are hereby reproduced as under:- Section

141. Unlawful Assembly.

An assembly of five or more persons is designated an "unlawful assembly" if the common object of the persons composing that assembly is: First. To overawe by criminal force, or show of criminal force, the central or any Provincial Government or legislator, or any public servant in the exercise of the lawful power of such public servant; or Second. To resist the execution of any law, or of any legal process: or Third. To commit any mischief or criminal trespass, or other offence, or Forth. By means of criminal force, or show of criminal force to any person to take or obtain possession of any property or to deprive any person of the enjoyment of a right of way, of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or Fifth. By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do or to omit to do what he is legally entitled to do. Section

142. Being Member of unlawful assembly.

Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joints that assembly, or continue in it is said to be a member of an unlawful assembly. Section

143. Punishment.

Whoever is a member of an unlawful assembly, shall be punished with imprisonment of either description for a term which may extend to six month, or with fine, or with both. Section

145. Joining or continuing in unlawful assembly, knowing that it has been commanded to disperse.

Whoever joins or continues in unlawful assembly, knowing that such unlawful assembly has been commanded in the manner prescribed by law or disperse shall be punished with imprisonment of either description for a term which may extend to tow years, or with fine or with both. Section

146. Rioting. Whenever force or violence is used by an unlawful assembly, or by any member thereof in prosecution of the common object of such assembly, every member of such assembly is guilty of the offence of rioting. Section

147. Punishment of rioting ..Whoever is guilty of rioting shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both. Section

149. Every member of unlawful assembly guilty of offence committed in prosecution of common object.

If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. He further submits that the presence of the respondents in all the State aforementioned appeals have been admitted by the respondents themselves in their confessional statements etc. which is corroborated by the injured prosecution witnesses and the Superintendent of Police who recorded their statements under section 21-H of the Anti-Terrorism Act, 1997. Admittedly the recoveries of the Crime articles were affected on the pointation of the respondents which is admissible under Article 40 of the Qanun-e-Shahadat Order, 1984. He further contends that the ocular and circumstantial evidence coupled with medical evidence connects the chain committing crime by the respondents in all appeals, causing by the rioters of the unlawful assembly. All the respondents in all appeals played similar role and jointly participated in setting on fire the Government vehicles, police station along with Pakistan flag, police uniform, records, other Government properties etc. and looted the arms and ammunition thereto. The police personals were attacked, injured, humiliated and disgraced publically. All the respondents have failed to point out any enmity of police with them. The learned Advocate General contends that now it is well recognized principle of dispensation of criminal justice that identification parade is only held as a matter of prudence and not as rule of jurisprudence. A laxity, if any, on the part of Investigation Officer (IO), which is an irregularity and cannot, demolish the prosecution case. He also contended that the learned Trial Court has rightly relied upon a case reported in 1995 PCr.LJ (sic.) that: "Procedural defect or irregularities and even illegalities in the course of investigation shall not demolish the prosecution case." Furthermore admittedly it was a day light occurrence and the eye-witnesses have specifically mentioned the part attributed to the accused in their statement.

15. He also contended that the learned Trial Court while convicting the respondents has rightly relied upon the case reported in 2001 SCMR 424 that: "The court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the investigation agency/ prosecution, provided the same have not prejudiced the accused in the fair trial." 17(sic.) The learned Advocate General submits that the learned Trial Court has rightly convicted the respondents namely Iftikhar Hussain, accused Irfan Ali, accused Baba Jan, accused Aleemullah Khan, accused Sher Khan, accused Rashid Minhas, accused Sarfraz, accused Musa Baig, accused Shukurullah Baig alias Mithoo and proclaimed offenders Meher Ali, Deedar Ali and driver Nasir whereas the learned Trial Court has wrongly acquitted accused/respondents Irfan Karim, Salman Karim, Ahmed Khan, Ghulam Abbas and Ameer Ali who have played the similar role in commission of the offence who are liable to be convicted and be awarded sentences and fine according to law.

18. In support of above contentions the learned Advocate General relied upon the following case laws:- I. "Surendra and others v. The State of Uttarpardesh (2012 SCMR 1422, SC of India). II. Afzal and another v. The State (2007 SCMR 315). III. Rashid Ahmed v. The State (Shariat Appellate Jurisdiction) (2006 SCMR 1243), IV. Muhammad Altaf and 5 others v. The State (2002 SCMR 189). V. Shafqat Ali and others v. Liaqat Ali and others (1985 SCMR 1151). VI. Saee and others v. The State (1984 SCMR 1069). VII. Nallamsety Yanadalah and others v. State of Andhra Pradesh (1994 SCMR 588). VIII. Naveed Hussain v. The State (2011 PCr.LJ 389) Gilgit-Baltistan Chief Court. IX. Gulbaz v. The State (2009 YLR 933). X. Imran Ashraf and 7 others v. The State (2001 SCMR 424).

19. On the other hand Mr. Ehsan Ali Advocate appearing on behalf of the respondents Nos. 01 to 03 and Mr. Amjad Hussain advocate for respondent No. 04 submits that this is case of clear acquittal as the foundation of the FIR No. 20/2011 has broken into pieces and the same has lost its existence. They further submits that according to the FIR there were more than 700/800 accused/rioters amongst them only 15 accused have been implicated out of which 04 have been released by the Police under section 169, Cr.P.C. while 05 accused have been acquitted by the learned trial Court whereas the convicted accused were entitled for the same treatment under the law on the principle of consistency. They contended that the foundation of the said FIR has been damaged and the same ultimately lost its existence. They further submit that the Prosecution has recorded statements of twenty eight (28) Prosecution Witnesses (PWs) and none of them have charged the accused assigning them specific roles in creating violence, instigating, rioting and burning the Government Properties during that occurrence. Moreover, the statements of the PWs are contradictory with each other and the whole story based on Presumption and hearsay. They also submit that the occurrence took place after death of the two persons as they were protesting for non-payment of grants to the Internally Displaced Persons (IDPs) on account of compensation to the affectees of the Attaabad lake calamity. They argued that no PW mentioned the death of the two deceased who have been killed by the Police and resultantly the mob had become aggressive and provoked by the police itself and it was a natural act to react by the mob after death of the two private persons. They submit that the unlawful assembly of the people was there on account of the protest as their cheques were being bounced and the mere presence of the present respondents on the spot does not contribute any offence. The case is full of doubts and the prosecution has miserably failed to bring home a case against the respondents beyond reasonable doubts. They also contended that benefit of doubt, if any, always goes to the accused and not to the prosecution. The learned trial Court did not consider this aspect of the case and has wrongly awarded punishments to respondents. Consequent thereto, the Judgment dated 25.09.2014 passed by the learned Anti-Terrorism Court was not sustainable and the learned Chief Court Judgment dated 09.04.2015 in Criminal Appeals Nos. 34/2014, 35/2014, 36/2014, and 40/2016 has rightly set aside the same being not well founded. They also contended that the accused are IDPs of Attaabad Lake and the instant case is based on Political victimization. They further contended that the occurrence of the instant case is not pre-planned and PW-5 SP Baba Khan has identified accused Baba Jan and accused Iftikhar Hussain instead of Gulam Abbas and accused Ahmed Khan. They further contended that there are contradictions between the statements of SP Baba Khan and SP Tufail as well as the statements of recovery witnesses. They further contended that the belated recoveries of crime articles are fake as the recovery Magistrate mentioned time as 05:00 a.m. while other witnesses stated that it was 8'O Clock and the other PWs says that it was 9:00 a.m., 10:00 a.m. or 11:00 a.m. respectively. They also contend that PW-22 SP Tufail also stated that he has recorded the confessional statements of accused Iftikhar Hussain etc. while SP Baba Khan also claimed that he has recorded the confessional statement of the said accused. They further contended that injured person/PWs have not been examined at the nearest Hospital at Karimabad rather they have got treated more than 300 Km away at Asqurdass. They also contended that no accused except accused Iftikhar Hussain has been arrested at the place of occurrence/ near Police Station Aliabad. They further contended that injuries shown on the police personnel are also fake as per statement of PW-21 Dr. Shahidullah Baig. They finally argued that the Judgment dated 09.04.2015 passed by the learned Chief Court is well reasoned and well founded, hence, no interference is warranted into it and the same is required to be maintained to meet the ends of justice and equity. While arguing so they relied upon the case laws i.e. (i). PLD 1996 SC 219 (ii). (sic.) PCr.LJ 2518 (iii) PLD 1956 SC 249 (iv) 1987 SCMR 1015 (v) PLD 1968 SC 372.

20. We have heard the learned counsel for the respective parties at length, perused the record of the case file and gone through the Impugned Judgments of both the Courts below. The case laws cited by both the learned counsel have also been perused. The case laws cited by the learned Advocate General are applicable whereas the case laws relied upon by the learned counsel for the respondents are distinguishable.

21. We have been fortified with the case laws referred by the learned Advocate General wherein the Hon'ble apex Courts of Pakistan and India have held that in such cases least consideration be given to the technical flaws made by the Prosecution and the Courts must have appraised evidence in a dynamic way instead of static approach. All the facts/circumstances of the case should be kept in view if a member of an unlawful assembly is committed the offence. The conviction should be recorded without going into technical flaws made by the investigating agency. In case Surendra and others v. The State of Uttarpardesh (supra) it is held that the legal position is well established that inference of common object has to be drawn from various factors such as the weapons with which the members were armed, their movements, the acts of violence committed by them and the result. We are satisfied that the prosecution from the entirety of the evidence, has been able to establish that all the members of the unlawful assembly acted in furtherance of the common object. In case titled Afzal and another v. The State (supra) it is held that all the respondents along with others have formed unlawful assembly and attacked complainant party, injured the PWs. The respondents by virtue of the vicarious liability would be equally responsible for the commission of the offence under sections 147 and 149, P.P.C. as the respondents failed to convince that either testimony of the injured witnesses was unreliable or the participation of the petitioners in the occurrence was doubtful, in case titled Rashid Ahmed v. The State (supra). It is held that the prosecution has brought on record truthful and convincing evidence of the complainant and injured eye-witness. It has been proved that forming unlawful assembly and with common object in the commission of offence, in case titled Muhammad Altaf and 5 others v. The State (supra). It is held that every member of unlawful assembly to be equally charged for committing the offence with a common object, in case titled Shafqat Ali and others v. Liaqat Ali and others (supra) it is held that accused forming unlawful assembly duly armed with common object, the presence of the accused at the spot testified by eye-witness and participation in the commission of the offence equally fell within mischief under section 149, P.P.C., in case titled Saee and others v. The State (supra), it is held that out of 250 rioters, 43 were mentioned as accused and rest could not be identified, then all the 43 accused would share the same responsibility under section 149, P.P.C., in case titled Nallamsety Yanadalah and others v. The State of Andhra Pradesh (supra), it is held that for the application of section 149, I.P.C., the prosecution has to prove the presence and participation of each one in an unlawful assembly, in case titled Imran Ashraf and 7 others v. The State (supra), It is held that the court's approach, while appraising the evidence, should be dynamic and not static. It should keep in view all the facts and circumstances of the case and if it is satisfied that factually the person charged with the offence has committed the same, it should record the conviction though there might have been some technical lapses on the part of the investigation agency/prosecution, provided the same have not prejudiced the accused in the fair trial." In case titled Naveed Hussain v. The State Gilgit-Baltistan Chief Court, (supra) it is held that confessional statement of accused, after the amendment in section 21-H of Anti-Terrorism Act, 1997 whereby a proviso had been added to the section, legislature had made it mandatory that statement under said section would be admissible in evidence, which has to be read with the provision of section 6 of Anti-Terrorism Act, 1997. In case titled Gulbaz v. The State (supra), it is held that accused has voluntarily confessed his guilt before prosecution witness who had fulfilled all the legal formalities in that behalf and accused, without any force or coercion, has admitted his accusation and said admission was admissible in evidence under the provisions of section 21-H of Anti-Terrorism Act, 1997. Accused had failed to show any animosity toward the prosecution witness. Prosecution case was fully supported from the recoveries affected from the spot of occurrence, positive report of Bomb Squads, the effectively firing at the police party with intention to kill them which also created terror and panic in the locality, had fully brought home the charge to accused. Prosecution case was fully proved against accused. Counsel for accused had failed to prove any illegality or irregularity in the impugned conviction of the Trial Court which was the result of sound appraisal of evidence brought on record and to which no exception could be taken by the High Court. (P. 934).

22. In view of the above discussion, after evaluation of the entire evidence of the Prosecution on record and going through the aforementioned case laws in our considered view the prosecution has proved its case against all the respondents in all the above appeals beyond any shadow of doubts by producing Ocular Evidence, Circumstantial Evidence, Confessional Statement of accused/ respondents, Recoveries on the pointation of the respondents, Medical Evidence and coupled with the absconsions of the accused/respondents.

23. We hold that the learned trial court has rightly convicted the accused Iftikhar Hussain, accused Irfan Ali accused Baba Jan, accused Aleemullah Khan, accused Sher Khan, accused Rashid Minhas, accused Sarfraz, accused Musa Baig, accused Shukurullah Baig alias Mithoo and proclaimed offenders Meher Ali, Deedar Ali and driver Nasir under sections 436/149, P.P.C. read with section 7(d) of The Anti-Terrorism Act, 1997 and sentenced them to undergo rigorous imprisonment for life and to pay fine of 1000000/- (Rupees one hundred thousand only) each. The above named accused are also convicted under sections 435/149, P.P.C. and sentenced them to undergo (7) years imprisonment and the accused to pay fine of Rs.1000000/- (Rupees One hundred thousand only) each. The above named accused were also convicted and sentenced them under sections 427/149, P.P.C. undergo 2 years imprisonment. The above named accused are also convicted under sections 448/149, P.P.C. and to undergo one year imprisonment the accused Iftikhar Hussain, accused Irfan Ali, accused Baba Jan, accused Aleemullah Khan, accused Sher Khan accused Rashid Minhas, accused Sarfraz, accused Musa Baig, accused Shukurullah Baig alias Mithoo and proclaimed offenders Maher Ali, Deedar Ali and driver Nasir under sections 353/149, P.P.C. read with section 7(h) of the Anti-Terrorism Act, 1997 and sentence them to undergo 5 years imprisonment. The above named accused are also convicted under sections 147/149, P.P.C. and sentenced them to undergo imprisonment for 2 years. The above named accused were also convicted under sections 337-A/149, P.P.C. and sentenced them to pay "daman" of Rs.100,000/- (rupees one hundred thousand only). The above named accused are also convicted and sentenced to undergo 02 years imprisonment as Ta'zir. The above named accused are also convicted under section 7(c) of the Anti-Terrorism Act, 1997 and sentenced them to pay "daman" of Rs. 100,000/- (rupees one hundred thousand only) each and sentenced them to undergo 5 years imprisonment as "ta'zir". The amount of the Daman shall be paid to the injured persons. The accused Iftikhar Hussain, accused Irfan Ali, accused Baba Jan, accused Aleemullah Khan, accused Sher Khan, accused Rashid Minhas accused Sarfraz , accused Musa Baig, accused Shukurullah Baig alias Mithoo and proclaimed offenders Maher Ali, Deedar Ali, and driver Nasir under sections 17/20, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with sections 395/149, P.P.C. and section 7(d) of the Anti-Terrorism Act, 1997 and sentence them to undergo rigorous imprisonment for ten (10) years and to pay fine of Rs.100,000/- (Rupees one hundred thousand only) each. In default of payment of fine, the above named convicts-accused, shall undergo two years' imprisonment. The convictions and sentences awarded to them by the learned Trial Court are upheld.

24. The Proclaimed Offenders/absconder accused Maher Ali, Deedar Ali and driver Nasir are hereby convicted under section 21-L of the Anti-Terrorism Act, 1997 and sentenced to undergo ten 10 years' imprisonment. The convict accused/respondents have given a heavy loss to the Government Exchequer by putting on fire the Police Station Aliabad and two Government vehicles and have taken the arms and ammunitions from the Malkhana of Police Station Aliabad. The convict accused/respondents are responsible for the damages given to Government exchequer, hence, the cost of all the damages be recovered from the convict accused/respondents, as an arrear of land revenue, as per assessment and be deposited into the Government Treasury whereas the learned trial Court has failed to apply its judicial mind in acquitting the accused namely Irfan Karim, Salman Karim, accused Ahmed Khan, accused Ghulam Abass and accused Ameer Ali, who were also present on the place of occurrence, played equal role in mischief, participated in putting on fire the Police Station and Government Properties, Government vehicles equally participated in burning the record of the Police Station Aliabad, case file and case properties in Malkhana and looted the police ammunitions kept in koth. In our considered view they were also equally responsible as of aforementioned convicted accused. The State filed appeals against them and the same were also allowed through our short order dated 09.06.2016, hence, they have also been awarded the same convictions/sentences as awarded to the aforementioned convicted accused namely accused Iftikhar Hussain, accused Irfan Ali, accused Baba Jan, accused Aleemullah Khan, accused Sher Khan, accused Rashid Minhas, accused Sarfraz, accused Musa Baig, accused Shukurullah Baig alias Mithoo and proclaimed offenders Maher Ali, Deedar Ali and driver Nasir.

25. Consequently, upon hearing I, Mr. Justice Dr. Rana Muhammad Shamim, CJ, and Mr. Justice Javed Iqbal, J, have allowed all the appeals filed by the State vide our short order 09.06.2016. Consequent thereto, the Impugned Judgment dated 09.04.2015 in Criminal Appeals Nos.34/2014, 35/2014, 36/2014 and 40/2016 under FIR No. 20/2011 passed by the learned Gilgit-Baltistan Chief Court were set aside whereas the Judgment dated 25.09.2014 passed by the learned Trial Court was maintained. In addition, since in Criminal Appeal No.10/2015 filed by the State against the accused/respondents namely Irfan Karim, Salman Karim, Ahmed Khan, Ghulam Abbas and Ameer Ali was also allowed. They are also convicted as under:- The above named respondents/accused are convicted/ sentenced to undergo rigorous imprisonment for life and the accused to pay fine of 1000000/- (Rupees one hundred thousand only) each under sections 436/149 read with section 7(d) of the Anti-Terrorism Act, 1997. The above named accused are also hereby convicted under sections 435/149, P.P.C. and sentence them to undergo (07) years imprisonment and the accused to pay fine of Rs.1000000/- (Rupees One hundred thousand only) each. They are also convicted under sections 427/149, P.P.C. and sentence them to undergo 02 years imprisonment. The above named accused/respondents are also convicted under sections 448/149, P.P.C. and sentenced them to undergo one year's imprisonment. The above named accused are also convicted under sections 353/149, P.P.C. read with section 7(h) of The Anti-Terrorism Act, 1997 and sentence them to undergo 05 years imprisonment. They are also convicted under sections 147/149, P.P.C. and sentenced them to undergo imprisonment for 02 years. The above named accused/respondents are also convicted under sections 337-A/149, P.P.C. and sentenced them to pay "daman" of Rs.100,000/- (rupees one hundred thousand only) they are also convicted and sentenced to undergo 02 years imprisonment as Ta'zir. The above named accused are also convicted under section 7(c) of The Anti-Terrorism Act, 1997 and sentenced them to pay "daman" of Rs.100,000/- (rupees one hundred thousand only) each and sentenced them to undergo 5 years imprisonment as "ta'zir". The amount of the Daman shall be paid to the injured persons. The accused/respondent Irfan Karim, Salman Karim, Ahmed Khan, Ghulam Abbas and Ameer Ali are also convicted under section 17/20 Offence Against Property (Enforcement of Hudood) Ordinance, 1979 read with sections 395/149, P.P.C. and section 7(d) of The Anti-Terrorism Act, 1997 and sentenced them to undergo rigorous imprisonment for ten (10) years and to pay fine of Rs. 100,000/- (Rupees one hundred thousand only) each. In default of payment of fine, the above named convicts-accused, shall undergo two years imprisonment. The convict accused/respondents have given a heavy loss to the Government Exchequer by putting on fire the Police Station Aliabad and two Government vehicles and have taken the arms and ammunitions from the Malkhana of Police Station Aliabad. The convicts/accused are responsible for the damages given to Government exchequer, hence, the cost of all the damages be recovered from the convict accused/ respondents, as an arrear land revenue, as per assessment and be deposited into the Government Treasury.

26. All the respondents/accused except Baba Jan and Iftikhar Hussain who are already in Jail custody are directed to surrender before the learned Trial Court/Anti-Terrorism Court Gilgit for serving out their sentences. In case they do not surrender the learned Anti-Terrorism Court Gilgit is directed to adopt all measures to arrest all the respondents in above appeals in order to serve out the sentences awarded to them. The copies of this Judgment be sent to the learned Trial Court, the learned Advocate General and the learned Home Secretary, Government of Gilgit-Baltistan for implementation of the Judgment of this Court and for strictly compliance of the orders/directives of this Court thereto.

27. During the course of arguments, the learned Advocate General placed on record the Office Order No. CC.-E-67/2011 dated 13.08.2011 issued by the learned Registrar, Gilgit-Baltistan Chief Court whereby in pursuance of the letter No. PS/Secy Law-1(1)/2011 dated 12.08.2012 issued by the Secretary, Law and Prosecution Gilgit-Baltistan, the learned Chief Judge, Gilgit-Baltistan Chief Court was pleased to appoint Mr. Muhammad Alam the then District and Sessions Judge Skardu as Inquiry Officer to conduct Judicial Inquiry into the unfortunate incident took place at Aliabad Hunza on 11.08.2011 resulting in killing of two persons and injuring several others. Whereafter he would submit the judicial inquiry report.

28. It is shocking that Mr. Muhammad Alam the then District and Sessions Judge who conducted the aforementioned judicial inquiry and subsequently he has been elevated as learned Judge of Gilgit-Baltistan Chief Court who heard the criminal appeals arisen out of the same incident as senior member of the bench which is against the "Code of Conduct" and becoming of a Judge of Chief Court. He should have refrained and separated himself to hear the said criminal appeals of the same incident as he cannot sit as a judge of his own cause. Since he is at the verge of his retirement, this Court has withheld to refer his case to the Chairman Gilgit-Baltistan Council/Prime Minister of Pakistan to file reference against him in the Supreme Judicial Council Gilgit-Baltistan. The learned Judge is, however, required to be careful in future.

29. The dissenting note/Judgment separately written by our learned brother Judge (Mr. Shahbaz Khan, J) is as under:- Sd/- Dr. Rana Muhammad Shamim, C.J. Sd/- Javed Iqbal, J Advocate-General, Gilgit-Baltistan along with Ali Nazar, Advocate-on-Record for Petitioner. Amjad Hussain, Advocate along with Ehsan Ali, Advocate for Respondents. SHAHBAZ KHAN, J.

I have had the benefit of discussing the findings of my learned Brothers, Honourable Dr. Rana Muhammad Shamim, Chief Judge and Justice Javed Iqbal Judge during deliberations after hearing the arguments in the above cases. I am unable to share the view expressed by them on some points and must respectfully dissent. Though the facts and provisions of the relevant law might be set out in the judgment prepared by Honorable Chief Judge but keeping in view of the importance in the matter, I propose to refer all the details and deliver a separate judgment in the following terms:-

1. Through the instant appeals, by leave of the Court, the appellant has assailed the judgment dated 09-04-2015, passed by the learned Chief Court Gilgit-Baltistan, in Cr. Appeals Nos.34/2014, 35/2014, 36/2014 and 40/2014 whereby the said Criminal appeal filed by the respondents/accused have been accepted by acquitting them. The concise facts as narrated are as such that a criminal case vide its FIR No.20/2011 lodged by IP Gulzar Hussain on 11-08-2011 at Police Station Hunza Aliabad nominating the respondents Baba Jan, Ahmad Khan resident of Shishkat, Sultan Ishaq, Imam Dad, Sahib Khan, Mohammad Shah, Ali Gohar, Deedar Hussain residents of Sarat, Rahim Mohammad and Iftikhar residents of Shishkat, on the charge of leading a provoked mob consisting 700/800 people as a result of an incident due to non-payment of compensation to the affectees of Ata Abad by UBL, attacked Police Station Ali Abad by beating guard Abdul Qayum present on the gate of Police Station and entered therein and beaten police officials present at the time of occurrence in the police station namely Saleem FC, Wazir Aman HC, Saifullah FC, Ayub FC and Zafar Iqbal FC and putting on fire the Govt. Vehicle No. GLTA 4549 present in the police station and put on fire all the police station record, all official documents and official material and cases material present in Malkhana and broken the Arm store/Koth by looting police arms and ammunition present therein consisting SMG 08 Nos, Semi Rifles 13 Nos, ammunition rounds consisting G3 980 nos, 7.62 mm 1200 Nos, MP-5 110 nos, .30 bore pistol 40 nos, and the magazines of arms along with the arms of DPL consisting SMG 03 nos, 13 nos .30 bore pistols and essential articles and magazines and ARP material including SMG 02 nos, Gas Gun 02 nos, Gas shell 02 packets, police station gas gun 01 nos, shell 35 nos, hand grenade 02 boxes, and also burnt police uniforms, beds, belts and then burnt the vehicle of Police Station Gulmit and also burnt the SHO house and then the mob went towards bazaar. The police after investigation submitted challan against the accused before the Anti-Terrorism Court Gilgit. The prosecution tried to lead oral as well as documentary evidence in proof of the allegations to corroborate the prosecution version with the help of confessional statements of accused recorded before the Superintendent of Police under section 21-H, A.T.C. Act, 1997.

2. The police, in exercise of powers conferred under section 169, Cr.P.C. released the following 08 accused out of a total of 10 who were directly nominated in FIR by the complainant SHO and as per statement of some eye-witnesses as well as the Investigation Officer, having similar role with the accused, who have been committed to judicial lock up for facing trial:

1. Sultan Ishaq resident of Shishkat

2. Imam Dad resident of Sarat

3. Sahib Khan resident of Sarat

4. Mohammad Shah resident of Sarat

5. Ali Gohar resident of Sarat

6. Deedar Hussain resident of Sarat

7. Rahim Mohammad resident of Shishkat

8. Iftikhar resident of Shishkat The police submitted challan against the respondents Baba Jan, Ahmad Khan and the 15 other accused/respondents who were not named in FIR.

3. The learned Judge of ATC No.1 Gilgit framed the charge of Accused as per contents of FIR No 20/2011 wherein the respondents/ accused did not plead guilty and claimed trial. Consequently, the prosecution has produced as many as 28 PW's in proof of their case excluding those which have been named in FIR as eye-witnesses by the complainant. After recording of evidence made by the prosecution witnesses, the trial court recorded the statement of accused/respondents under section 342 wherein they vehemently denied the allegation stating that they are not involved in the instant case rather they have been involved by the police due to political pressure and just to harass and humiliate them in the eye of society as they are having good reputation and they have never committed any offence previously and they further stated that their involvement in the instant case by the police is only the result of being them as eye-witnesses of another incident which took place in an another place in Ali Abad wherein two affectees of Ata Abad were murdered and five injured by DSP Babar Khan and his gun man FC Azam Khan and the police want to restrain them of being eye-witness of this incident. Lastly the trial Court has concluded the case in hand by giving their verdict vide judgment dated 25.08.2011, five out of the seventeen accused namely Irfan Karim, Salman Karim, Ameer Ali, Ahmad Khan and Ghulam Abbass were acquitted by the trial court while other 12 accused namely Iftikhar Hussain, Irfan Ali, Baba Jan, Aleemullah Khan, Sher Khan, Rashid Minhas, Sarfaraz Khan, Musa Baig, Shukurallah Baig and proclaimed offenders Meher Ali, Deedar Ali and Driver Nasir were found guilty of the following offences and sentenced by the Trial Court as under:- 114. "In the light of the above discussions, I hold that the Prosecution has proved the guilt of accused Iftikhar Hussain, accused Irfan Ali, accused Baba Jan, accused Aleemullah Khan, accused Sher Khan, accused Rashid Minhas, accused Sarfaraz, accused Musa Baig, accused Shukurallah Bag Alias Mittho, and proclaimed offenders Meher Ali, Dedar Ali and Driver Nasir for mischief by fire to cause damage to property, mischief causing damage, house trespass, assault on public servant, bodily hurt to the injured persons, rioting, haraaba (dacti) and create a sense of fear and insecurity in the area in furtherance of their common object, hence I convict accused Iftikhar Hussain, accused Irfan Ali, accused Baba Jan, accused Aleemullah Khan, accused Sher Khan, accused Rashid Minhas, accused Sarfaraz, accused Musa Baig, accused Shukurallah Baig alias Mittho, and proclaimed offenders Meher Ali, Deedar Ali and driver Nasir under section 436/149, P.P.C. read with section 7(d) of the Anti-Terrorism Act, 1997 and sentence them to undergo rigorous imprisonment for life and the accused to pay fine of 100000/- (Rupees One hundred thousand only) each. The above named accused are also hereby convicted under sections 435/149, P.P.C. and sentence them to undergo seven (7) years imprisonment and the accused to pay the fine of 100000/- (Rupees One hundred thousand only) each. I convict the above named accused under sections 427/149, P.P.C. and sentence them to undergo 2 years imprisonment. The above named accused are also convicted under section 448/149, P.P.C. and sentence them to undergo one year imprisonment. I convict the accused Iftikhar Hussain, accused Irfan Ali, accused Baba Jan, accused Aleemullah Khan, accused Sher Khan, accused Rashid Minhas, accused Sarfaraz, accused Musa Baig, accused Shukurallah Baig alias Mittho, and proclaimed offenders Meher Ali, Deedar Ali and driver Nasir under section 353/149, P.P.C. read with section 7(h) Anti-Terrorism Act, 1997 and sentence them to undergo 5 years imprisonment. The above named accused are also convicted under section 147/149 and sentence them to under go imprisonment for 2 years. I convict the above named accused under section 337-A/149 and sentence them to pay "Daman" of Rs 100000/- (Rupees One hundred thousand only) each and the above named accused are also convicted and sentenced to undergo 2 years imprisonment as "Tazir". The above named accused are also convicted under sections 337-F(iii)/149, P.P.C. read with section 7(c) of the Anti-Terrorism Act, 1997 and sentenced them to pay "Daman" of Rs. 100000/- (One hundred thousands only) each and sentenced them to undergo 5 years imprisonment as "Tazir". The amount of "Daman" shall be paid to the injured persons. I convict the accused Iftikhar Hussain, accused Irfan Ali, accused Baba Jan, accused Allemulah Khan, accused Sher Khan, accused Rashid Minhas, accused Sarfaraz, accused Musa Baig, accused Shukurallah Baig alias Mitto, and proclaimed offenders Meher Ali, Deedar Ali and driver Nasir under sections 17/20, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 read with sections 395/149, P.P.C. and section 7(d) of the Anti-Terrorism Act, 1997 and sentence them to undergo rigorous imprisonment for ten years and to pay fine of Rs 100000/- (Rupees One hundred thousand only) each. In default of payment of fine, the above named convicts-accused shall undergo two years' imprisonment. 115. "Proclaimed offenders/absconder accused Meher Ali, Deedar Ali and driver Nasir are hereby convicted under section 21-I of the Anti-Terrorism Act, 1997 and sentenced them to undergo ten years' imprisonment. 116. "Before parting with the file, it is pertinent to mention here that the convicts-accused have given a heavy loss to Govt. Exchequer by putting on fire the Police Station Aliabad. And two Govt. vehicles and have taken the arms and ammunition from the Malkhana of Police Station Aliabad. The convicts accused are responsible for the damages given to Govt. Exchequer. Hence, the cost of all the damages be recovered, as an arrear of land revenue, as per assessment and be deposited into the Govt. Treasury.

4. The accused/respondents filed an appeal before the learned Chief Court Gilgit-Baltistan against the said conviction. The learned Chief Court after hearing pro and contra in its judgments dismissed the appeal of the State filed against acquittal of accused Irfan Karim, Salman Karim, Ameer Ali, Ahmad Khan and Ghulam Abbass and accepted appeals filed by Baba Jan, Iftkhar Hussain Sarfaraz etc vide its judgment dated 09-04-2015, holding that the judgment of the trial court is bad in the eyes of law and meritless. The present petitioner/appellant being aggrieved and dissatisfied with the impugned order passed by the Gilgit-Baltistan Chief Chief Court filed the petition in hand for leave to appeal before this apex Court. This Court admitted the case by granting leave to appeal. Arguments advanced by the learned counsel of accused and learned Advocate General Gilgit-Baltistan heard in detail and record perused. The learned Advocate-General defended the judgment of the trial Court up to the extent of accused Baba Jan, Iftikhar Hussain etc. Sarfaraz Khan etc. but opposed in respect of accused Irfan Karim etc. who have been acquitted by the learned trial court in the same judgment whereas the learned counsel of the respondent(sic.). The learned Trial Court based its findings on the following categories of evidences claimed to be produced by the prosecution which needs to be thoroughly examined in the light of law: (i) Ocular evidence (ii) Circumstantial evidence (iii) Confessional Statement of accused (iv) Recoveries (v) Medical Evidence

5. The first pinching point in the instant case is that out of twelve directly named and given same role in the FIR, the police has discharged and released 10 accused under section 169, Cr.P.C. which in fact has demolished the persecution story narrated in FIR at the investigation stage. Moreover, out of 17 accused named in challan submitted under section 173, Cr.P.C., 05 accused namely Irfan Karim, Salman Karim, Ameer Ali, Ghulam Abbas and Ahmad Khan, having the same alleged role and participation in the occurrence as per statements of prosecution eye-witnesses as well as Investigation Officer, have been acquitted by the learned Trial Court by rejecting the prosecution evidence and very surprisingly the other 12 accused persons on the basis of exactly the same set of prosecution evidence, who could not be convicted and sentenced at all on the basis of such a rejected evidence and in absence of any other independent corroborative evidence but the learned Trial Court did it by convicting and sentencing them which is not only a gross violation of law but also against the natural justice. The DB of Honorable Justice Mohammad Munir Khan and Raja Afrasiab Khan of Lahore High Court, in its judgment under reference 1991 PCr.LJ 133, in a similar nature case has held that: "The motive part of prosecution story, therefore, does not lend support to the prosecution case apart from the above, four co-accused were acquitted by the learned trial judge by rejecting the prosecution evidence and as such on the basis of same set of evidence the appellant cannot be convicted and sentenced". A Full Bench of Supreme Court of Pakistan headed by Honorable Justice Gulzar Ahmad vide para 17 of its judgment dated 16 March, 2016 in the case titled Soba Khan v. The State has held that: "It is by now well settled principle of law relating to re-appraisal of evidence that once co-accused, similarly charged and attributed same and similar role in a particular crime, is acquitted on the basis of same set of evidence where the witnesses have maintained no regard for truth while deposing on oath to tell the truth and nothing else the ordinarily they shall not be relied upon with regard to the other co-accused unless their testimony/evidence is strongly corroborated by independent cogent and convincing evidence." The Supreme Court of Pakistan under reference 2009 SCMR

230. Muhammad Akram v. The State has held that: Ss. 302/324/337-A(i)/148/149, P.P.C. Case of vicarious liability. Accused must be shown to share criminal act and also that criminal act was committed in concert and in pursuance of a prearranged plan, but in the present case no pre-concert and prearranged plan appeared to have been proved. Trial court, in circumstances had rightly given benefit of doubt to acquitted accused. Court had to sift the grain from the chaff and only one circumstances creating doubt in the mind of prudent man was sufficient to acquit accused by way of an abundant caution. If the trial court had acquitted some of accused persons by giving them benefit of doubt, that would not impair the veracity of the witnesses against the other accused whose, involvement in the case was established. Accused were rightly acquitted. ACQUITTAL UPHELD. The Supreme Court of Pakistan in a case under reference 2008 SCMR 6 Akhtar Ali and others v. The State (Larger Bench) has held that: S.302/452/394/397/449/109/34, P.P.C. Eye-witnesses found to have falsely implicated five out of eight accused

Effect

Conviction of remaining three accused could not be based on same evidence without independent corroboration. APPEAL ALLOWED. The Supreme Court of Pakistan in a case under reference PLD 2002 SC

643. Shera Masih and another v. The State (FB) has held that: S.302, P.P.C. Maxim: "Falsus in uno falsus in omnibus". Applicability. Where the witnesses are found false against one accused, their evidence being of doubtful character would not be acceptable qua the remaining accused without independent corroboration and thus if the evidence of a witness is discarded to the extent of one accused, the same should not be automatically excluded from consideration qua other accused as the same can still be used against the remaining accused if it is supported by any other evidence of independent character. Principle of "falsus in uno falsus in omnibus", therefore, cannot be accepted as a mandatory rule and given preference over the principle of "sifting the grain from the chaff", as by doing so the true spirit criminal administration of justice shall be defeated. A Division Bench of Lahore High Court under reference 2004 YLR 255 Muhammad Anwar v. The State held as under: S.302/34, P.P.C. Partial acceptance of ocular evidence against convicted accused and its disbelief qua acquitted accused would not be legally tenable. ACQUITTAL.

6. The conviction and sentences passed by the learned trial court is actually and factually based on section 149 of the P.P.C. and that the accused have been declared to be convicted as they were members of an alleged unlawful assembly but the trial court did not bother to look at the evidence on record as well as law for making an arguable foundation at least. Before going to discuss on above points, I would like to discuss on the two fundamental issues in this case overlooked by the learned Chief Court and particularly the trial court which concluded its findings and convicted the accused based on the sole point of mere presence of some of the accused on the scene of occurrence in absence of any attribution in the alleged overt act and by treating them same as members of an unlawful assembly under the principle of vicarious liability as well as constructive liability without taking into consideration of non-availability of evidence and its legal application and adaptation of due procedure during trial. Thus we have to discuss the below mentioned points first: i. Failure of learned trial court to frame charge under sections 147, 148, 149, P.P.C. specifically. ii. Failure of learned trial court in respect of appreciation and application of essential ingredients and fundamental requirements of section 149, P.P.C. iii. Failure of trial court to specific framing of charges to Justify its conviction and sentences awarded against the accused persons under the substantive offences.

5. For a fair discussion on conviction under section 149, we have to look at its essential ingredients of this provision, framing of charge by the learned trial courts usually and the charge framed by the learned Trial Court in the instant case particularly. a) Section 149, P.P.C. states as under: Every member of unlawful assembly guilty of offence committed in prosecution of common object: If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person, who at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence.

6. In order to apply section 149, P.P.C., the accused must be: i. A member of an unlawful assembly ii. The overt act must have been committed in prosecution of common object or iii. The member of assembly must have known that such offence was likely to be committed in prosecution of the common object of the assembly. Necessary ingredients of common object are, prior meeting of minds of accused to form a pre-arranged plan and some evidence to prove that accused were in-concert and in pursuance of pre arranged plan then it could be said that the accused committed the criminal act. Every member of an unlawful assembly must know that the offence likely to be committed is in further more of common object while convicting a person under this section necessary ingredient for a constitution of the offence are prior meeting of minds of the accused to form a pre-arranged plan and evidence to prove that accused were in pre-concert and in pursuance of pre arranged plan, the offence committed.

7. But it is an admitted fact that the prosecution totally failed to prove this main aspect of case as none of the prosecution witness uttered a single word to substantiate the contention of the prosecution as well as conclusion of the learned Trial Court in respect of involvement of accused under this specific allegation and applicability of section 149 in this case. The whole case file does not possess any kind of evidence or even allegation that the accused persons pre-planned to make an unlawful assembly with a common object to commit the specific criminal acts charge sheeted. The record of the case does not disclose any kind of evidence that the incident took place as a result of a pre-planned act rather the record reveals that same was happened suddenly as a result of the tragic incident occurred in front of Aliabad UBL Bank a little bit time before wherein two civilian affectees of Ata Abad were killed and five injured as a result of firing of DSP Babar and his Gunman FC Azam. This fact is further substantiated and authenticated by the wordings of FIR itself which explains that the incident took place as a result of provocation of the mob after the happening of the incident due to non-payment of compensation by UBL.

8. The accused were neither charge sheeted under section 149, P.P.C. in a specific way nor any evidence was produced before the trial court accordingly to prove and substantiate the ingredients of section 149 and most interestingly none of the prosecution witnesses attributed a single word about the alleged common object and also not attributed any overt act against any of the accused in respect of the criminal acts charge sheeted. More interestingly those 06 accused/ respondents were also convicted against whom there was absolutely nothing on the record. The surprising imposition of conviction and sentence of the accused/respondents by the learned Trial Court under the umbrella and domain of section 149 on the basis of just hypothesis, without framing of charge specifically, in absence of any cogent reasons and evidence on record in respect of sections 147, 148 and 149 and without affording any opportunity to the accused to defend themselves, is a gross violation of law. The prosecution also utterly failed to produce any kind of evidence in respect of these specific provisions during trial. Therefore, the errors or omissions which are misleading and prejudicial to the accused or has occasioned failure of justice are material errors and fatal for the prosecution. This conduct of the learned trial court and thereafter its findings as a result has caused prejudice and injustic to the accused thus the same are liable to be set aside being against law as well as natural justice.

9. It is true that the learned Trial Court failed to frame substantive charges under 436/ 435/ 427/ 448/ 353/ 147/ 149/ 337-A, P.P.C., section 17 Haraaba of the Offences Against Property (Hudood) Ordinance, 1979, sections 21-L and 6/7 of Anti-Terrorism Act, 1997 as well against the accused persons. The charges framed were for individual liability for these offences with the aid of section 149, Pakistan Penal Code. The charges when framed with the help of section 149, Pakistan Penal Code, amount to telling the accused that they are constructively being held liable for offence committed by another, who was a member of the unlawful assembly, in which they were also the members. It also amounts to telling them that they are not being accused of committing the offences with their own hands or of any participation in the commission of the said offences. In such a situation, if the charge under section 149, Pakistan Penal Code fails either by reason of the fact that unlawful assembly of five or more persons was not proved or some such reason, it is not open to the Court to convict the accused persons of the substantive offence or offences.

10. The omnibus statement about the culpability of the accused/ respondents in the testimony of the prosecution witnesses would in the circumstances of the case have to be considered only in the light of evidence of specific overt acts attributed to each and every accused which is missing not only in the entire prosecution case but also not available in the charge framed by the learned trial court as well unfortunately. Therefore, in absence of evidence it is difficult to accept that the accused were members of the unlawful assembly with the common object of committing the offence charge sheeted. In the circumstances, it is held that section 149, P.P.C. is only an enabling provision and not a substantive offence and no sentence has been provided in this section so the conviction and sentence of the accused/respondents awarded by trial court under this section is misconceived and it is highly unsafe to apply section 149 and make everyone of them constructively liable. I, therefore have no hesitation in dismissing the prosecution case against the respondents on the charge under section 149, thus the conviction and sentencing of all the respondents/accused under section 149, P.P.C. by trial court has rightly been set aside by the learned Chief Court. Having rejected the contention that the appellants were members of unlawful assembly, it would be equally unsafe to apply sections 147 and 148 of P.P.C. on the basis of omnibus statements made by the prosecution witnesses which is not corroborated. Accordingly, the conviction of all the accused under sections 147, 148, P.P.C. also remains set aside.

11. For a fair conclusion in respect of the implications of above provision and legality of trial procedure conducted by the trial court, it is extremely necessary to make a comparison between a charge framed by the courts in Pakistan generally and the charge framed by the learned Trial Court in the instant case particularly as under: The framing of charge in a case under section 149, P.P.C. used to be in practice as under: CHARGE: I

(name and office of the magistrate/Judge hereby charge you

(name of the accused) as follows: That you

on or about the day of

at

were member of an unlawful assembly, the common object of which was to

specify the object

and that while you were a member of the said unlawful assembly, another member of the same committed

(specify the act)

and thereby committed an office punishable under section

of the

which said offence was committed in prosecution of the common object of the said unlawful assembly (or which offence the members of the said unlawful assembly knew to be likely to be committed in furtherance of the common object of the assembly), and that you thereby committed an offence punishable under section 149 of the Pakistan Penal Code and within my cognizance. And I hereby direct that you be tried by the said court on the said charge Whereas the learned Trial Court framed the charge in the instant case as under: CHARGE: "I Raja Sehbaz Khan Administrative Judge Anti-Terrorism Court No. 1 Gigit Baltistan do hereby charge you accused Iftikhar Hussain son of Muhammad Ishaq, Irfan Karim son of Karamat residents of Aliabad, Irfan Ali son of Arman Shah resident of Murtaza Abad, Salman Karim son of Ibrahim, Sher Khan son of Hamadullah Baig resident of Aliabad Hunza, Baba Jan son of Abdullah Baig resident of Nasir Abad, Aleemullah Khan son of Taighoon Shah resident of Hassan Abad, Ahmad Khan son of Ibadat, Ghulam Abbas son of Muhammad residents of Shishkat, Amir Ali son of Amir Hayat, Rashid Minhas Anees son of Abdul Mateen residents of Ali Abad Hunza and Sarfarz son of Ghulam Musa resident of Altit Hunza Tehsil Ali Abad District Hunza Nagar that on 11.08.2011 at about 1300 hours along with your co-accused/proclaimed offenders Meher Ali son of Farman Ali, Mithoo son of Amanaullah residents of Ali Abad, Driver Nasir son of Ghulam Rasul resident of Grilt Hunza, Driver Musa Baig son of Abd-ur-Rehman and Deedar son of Amir Ali residents of Shishkat Hunza enraged and attacked on the police Station and entered in the police station after assaulting and battling the FC Abdul Qayum, FC Saleem, HC Wazir Aman, FC Saifullah, FC Ayub, FC Zafar Iqbal and set on fire the government Datsun No. GLT A 4519 and entered in the police station and put on fire the record of police station and case files and the case properties. The Koat was also broken by you and 13 weapons 1-3-08, 980 nos rounds of 9.3, 1200 rounds of 7-62 mm, 110 rounds of MP-5, 40 rounds of .30 bore pistols, with spare magzines and necessary parts of different weapons 8 nos, SM 4, 13 nos, .30 bore pistols with spare magazines and necessary things of ABP, 2 nos SM 4, 2 nos Gas Gun, 2 bag Gas Shells, one no. Gas Gun of police station, 35 nos Gas Shells and 2 boxes hand grenades were taken by you and the uniform of police personnel along with their beds boxes and necessary things were also set on fire by you. A vehicle of Police Station Gulmit was parked in a work shop opposite the police station was also set on fire and also put the fire on the house of SHO House by you. By doing this act you accused caused the loss of millions to the government property. Thereby, you have committed an offence punishable under sections 147, 148, 149, 114, 353, 427, 448, 435, 436, 337-A, 225, 225-B, P.P.C., 17 Haraaba and sections 6/7 of that Anti-Terrorism Act, 1997 which is within the cognizance of this court and I hereby direct you to be tried by me on the said charges".

12. It is clear from above charge sheet that the trial court totally failed to frame the charge as per ingredients of the section 149, P.P.C. specifically thus defeated the rights available to the respondents/accused under criminal jurisprudence. The respondents/accused are not being asked to defend themselves on the fundamental charge of criminal acts committed as a result of being a member of an unlawful assembly in prosecution of the common object of all the criminal acts mentioned above rather the accused have been charged to defend them as an individual liability against some criminal acts as happened in ordinary cases just aiding of section 149, P.P.C. Moreover, none of the prosecution witness examined who could support the contention of the prosecution to substantiate or prove the essential ingredients of this particular provision of section

149. Thus the conviction based judgment under cover and domain of section 149 by imposing the constructive liability in a case of unproved charges has caused prejudice and injustice to the accused which is not warranted under the law thus not maintainable. The following citations will further substantiate the contention whatever stated above; 2007 PCr.LJ 1860 Necessary ingredient of common object are prior meeting of minds of accused to form a pre-arranged plan and some evidence to prove that accused were in-concert and in pursuance of pre-arranged plan then it could be said that the accused committed the criminal act PLJ 2009 Sh.C (AJ&K) 126 Every member of unlawful assembly must know that the offence likely to be committed is in furtherance of common object while convicting a person under this section necessary ingredient for constitution of the offence are prior meetings of minds of the accused to form a pre-arranged plan and evidence to prove that accused were in pre-concert and in pursuance of a pre-arranged plan, the offence committed. PLD 1956 Supreme Court (Ind.) 249 If members of the family of the appellants and other residents of the village assemble, all such persons could not be condemned ipso facto as being members of that unlawful assembly. It is necessary, therefore, for the prosecution to lead evidence pointing to the conclusion that all the appellants had done or been committing some overt act in prosecution of the common object of the unlawful assembly. The omnibus kind of evidence that all the appellants and many more were the miscreants and were armed with deadly weapons like guns, spears, pharsas axes, lathis etc. has to be very closely scrutinized in order to eliminate all AIR 1959 Andh Pra 102 Chances of false or mistaken implication. The case of each individual accused has to be examined to satisfy that mere spectators who had not joined the assembly And were unaware of its motive had not been branded as members of the unlawful assembly which committed the crime. An accused is charged only with a substantive office cannot be convicted under section 149 read with substantive offence. AIR 1955 SC 419 Where an accused is charged only with an offence under this section read with the section dealing with a substantive offence, conviction in such cases for substantive offence would be bad if the accused has suffered prejudice. A charge as a member of an unlawful assembly for an offence committed by a member thereof in furtherance of common object is a substantially different one from a charge against a person for an offence committed by him as a member of such assembly. A charge under section 149 puts the person on notice only of the fact that the e wats(sic.) committed by a member of the unlawful assembly in prosecution of the common object or such as was known to be likely committed. Section 149 creates a distinct head of criminal liability commonly known as constructive liability which is not covered by sections 236 and 237. (Cr.P.C. (SC) Ind 1) AIR 2010 SC 3786 - In Sanichar Sahni v. State of Bihar "Therefore, ... unless the convict is able to establish that defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be tested on the touchstone of prejudice theory." AIR 2013 SC 840 - In Darbara Singh v. State of Punjab. In determining whether any error, omission or irregularity in framing the relevant charges, has led to a failure of justice, the court must have regard to whether an objection could have been raised at an earlier stage during the proceedings or not. While judging the question of prejudice or guilt, the court must bear in mind that every accused has a right to a fair trial, where he is aware of what he is being tried for and where the facts sought to be established against him, are explained to him fairly and clearly, and further, where he is given a full and fair chance to defend himself against the said charge(s).

13. Ocular Evidence i) As per prosecution story itself, there is no dispute that the incident took place in a broad day light at a place on around KKH which is a thickly populated and market place of Ali Abad Town where hundreds of people used to be present all the time normally. But very surprise to note that the prosecution did not produce even a single independent person as witness hailing from the locality or even a non-partisan, non-interested private person of any other place present there at the time of occurrence being a passerby. The FIR itself speaks about presence of at least 700/800 persons present at the place of occurrence which is KKH and market place and interestingly the PWs stated before the trial court that the rioters and mob of unlawful assembly were 60, 70 and 100 at the most in numbers who entered the police station and committed criminal acts therein. This proves beyond any doubt that more than 700 persons were present at the place of occurrence as spectators and not as rioters. But the prosecution miserably failed to produce none of them as eye-witness being natural witnesses. All the witnesses produced by the prosecution were interested and partisan being police officials their evidence is not trust worthy and free from doubts thus not reliable. ii) The learned trial court, while convicting the accused, has relied upon those so called 06 police officials as eye-witnesses of occurrence which are neither named in FIR nor they could be treated as eye-witnesses in the eye of law. The FIR lodger PW16 is SHO and complainant in this case who does not disclose the names of these so called eye-witness at all neither in FIR nor in his statement before the trial court wherein he once again emphasized correctness of the contents of FIR. The complainant, being SHO of same police station categorically named the below mentioned 06 eye-witness in the FIR who were present in the police station when the provoked mob attacked.

1. Gate Guard Abdul Qayum FC,

2. Saleem FC,

3. Wazir Aman HC,

4. Saifullah FC,

5. Ayub FC

6. Zafar Iqbal FC But it is very very surprising to note that the police did not record statement under section 161, Cr.P.C. of above six officials at all and did not make them as eye-witnesses of this occurrence and not named in witnesses column of chalan as well. Moreover, the prosecution neither mentioned any reason for not producing them as eye-witnesses nor claimed wining over of them or any other reason or explanation for not examining them as eye-witnesses in the court making the whole prosecution story a concocted and false. The Investigation Officer remained mum in respect of FIR named eye-witnesses either in his challan report or in his statement before the trial court and also failed to explain anything in the challan report or even in his statement before the Trial Court in respect of missing of FIR named eye-witnesses. The Investigation Officer did not utter a single word of reason or explanation for not adducing them as eye-witnesses before the court. As per timely lodged FIR and statement of complainant recoded before the court makes it crystal clear that apart from the 700 private people the above FIR named officials were the natural and real eye-witnesses of the occurrence who have been deliberately and willfully pushed back from the occurrence scene and this act has not only created serious doubts about qua the guilt of accused but also demolished the prosecution case thus this sole point is enough to declare the prosecution case as false and concocted. iii. As a result of attack on police station by mob, it is natural that several police officials should be injured. Although no medico legal certificate consisting about nature of injuries has been placed before the trial court in respect of any injured police official including these natural witnesses. However one PW-23 Dr. Wali Mohammad Medical Officer Askurdas Dispensary has been produced before the court and he endorses examination and treatment of injured Gurad Abdul Qayum FC, Saifullah, and Zafar Iqbal FC but the prosecution did not submit any Medico Legal Certificate in this regard. PW-8 Dr. Khuwaja Khan of Civil Hospital Ali Abad as well examined FIR named eye-witness Wazir Aman HC and endorsed his treatment but no Medico Legal Certificate is available on the record in this regard as well. All the above four FIR named police officials were no doubt stationed and performing their duties in the police station when the mob attacked. Thus their presence in police station as eye-witness is beyond any doubt but non-examination of these four injured and FIR named natural eye-witness has created serious doubts about the prosecution case and naturally and legally presumption has gone against the prosecution and they might not have corroborated the prosecution case as a result if produced and examined before the court. In a similar nature case, the Learned Justice Rana Bhagwan Das and Zakir Hussain K Mirza in their judgment in reference 1997 PCr.LJ 1628 has thoroughly discussed about the testimony of such nature case wherein the eye-witnesses named in FIR not examined but examined those not named in FIR as eye-witness. The finding in this regard is as under: Non-examination of prosecution witnesses named in FIR as eye-witnesses whose evidence was material and admissible in order to arrive at just and correct conclusion, was not explained by the prosecution

Prosecution witnesses examined at the trial could not be termed as eye-witnesses of the occurrence and their testimony was neither unimpeachable nor reliable

Accused were not proved to have a strong motive to commit the murder of the deceased

Circumstance that the accused had already been shown to the witnesses well in advance of the identification parade was fatal to the prosecution case which was inherently weak and full of material inconsistent and infirmities

accused were acquitted in circumstance.

S. 302/149

Appreciation of evidence- Below mentioned citations will make this point further clear: 2. (DB) PLD 1960 Lah. 48 Ghulam Rasul. Prosecution must call witnesses named in FIR. Whether they support the prosecution or not. As a general rule, the prosecutor is bound to call all eye-witnesses who are mentioned in the first information report unless he has reasons to believe that the witness if called would not speak the truth, or is unnecessary or is an accomplice himself. The mere statement of the public prosecution not support by any material upon the record that the witnesses were won over the accused, would not absolve the prosecution to produce material witnesses mentioned in the first information report. If, however, the public prosecutor refuses to examine such witnesses, then a duty is cast upon the court to call those witnesses as court witnesses and afford opportunity to both the accused and the prosecution to cross-examine them. Failure to examine such witnesses or witnesses who were able to give important information in the case, or had some connection with the transaction in question might very well lead to miscarriage of justice which should be avoided at all cost. 3. 1972 SCMR

286. Case Title: Shah Nawaz v. Lal Khan Citation:- (a) Penal Code (XLV of 1860), S.302 read with Evidence Act (I of 1872), S.114 Illus. (g)-Non-examination of eye-witnesses mentioned in FIR

Circumstances of case demanding the witnesses should have been examined-inference adverse to prosecution in such case could and should be drawn

4. Calcutta High Court Afjal Hossain and others v. State of West Bengal and another On 28 February, 2007 Equivalent citations: 2007(4) CHN 482 "Against the said order of acquittal the opposite party No.2, the de facto-complainant of the case moved a criminal revision before the Sessions Court, Uttar Dinajpur. The learned Additional District and Sessions Judge, Fast Track, 2nd Court, Raigunge, Uttar Dinajpur by his judgment and order dated January 21, 2005 set aside the said order of acquittal and remanded back the said case to the Trial Court for fresh trial directing that during such fresh trial the de facto complainant be permitted to examine all the FIR named unexamined witnesses. Eighthly. as witnesses during trial some persons, about whom there was no reference in the FIR and left behind all the persons who have been referred as witness in the FIR except P.W.6. Ninthly, the learned Magistrate observed, according to the principle of law as laid down in the decisions, viz. 2001 Criminal Law Journal (SC) 170 and 2003 Criminal Law Journal (SC) 1282, the failure of I.O. cannot render the prosecution case doubtful nor there is any necessity to examine all the eye-witnesses, but in the instant case the matter is otherwise, here the prosecution has relied on P.W. 2 and P.W. 3 without examining the FIR named eye-witnesses. Initially not a single FIR named eye-witness was examined by the prosecution, subsequently the prosecution applying the provisions of section 311 of the Code of Criminal Procedure examined only the P.W.6, who is the father of P.W.1, but curiously enough the prosecution has not taken any pain to examine other FIR named eye-witnesses following the said provisions. Even no explanation for non-examination of those vital FIR named eye-witnesses has been offered. This aspect of the case speaks a volume against the prosecution as because examination of those FIR named eye-witnesses might have helped the defence. (c) The revision has been preferred by the de facto-complainant as no appeal has been preferred by the State, where prosecution has not examined the FIR named eye-witnesses and doctor. (d) The Revisional Court is to see whether there is miscarriage of justice and whether acquittal was unmerited. (e) There is evidence of relatives of both accused and the de facto-complainant. Apart from that in the instant case in hand during the trial the prosecution taking recourse to section 311 of the Code of Criminal Procedure examined P.W.6 Anauddin Ahamed, the father of the victim wife, but reason best known to the prosecution no attempt has been made to examine the other FIR named witnesses or the doctor there under. The doctors were not even examined under section 161 of the Code during the investigation. In my view, in such circumstances a presumption under section 114(g) of the Evidence Act is very much available in favour of the defense and sending the matter back for retrial with the opportunity to the prosecution to examine witnesses referred in charge sheet or not would certainly provide an opportunity to the prosecution to fill up its lacuna.

13. Having regard to the materials on record, I am of the opinion that the Revisional Court has exceeded its jurisdiction while interfering with the order of acquittal of the petitioners and thus same cannot be sustained. Hence, the impugned order whereby order of acquittal of the petitioners has been reversed by the Revisional Court is set aside and order of acquittal passed in favour of the petitioners by the Trial Court stands restored". 5. 1976 PCr.LJ 28 Shamman etc. (g) Evidence Act. Non-production of eye-witnesses for examination. Presumption that such witnesses if examined would not support the prosecution case, held correct. Section 114 illus. 6. 1971 PCr.LJ

490. ILR 27 Lah. 1 (PC), (DB) PLJ. 1978 Cr.C. (BJ) 58 = PLD 1978 B.J. 9 Material witness if not produced without sufficient reason Court may presume that had the prosecution(sic.). 7. (DB) 1973 PCr.LJ 737 Najeebullah etc. Witness from neighbourhood not produced. Persons from neighboring houses soon attracted to the scene of occurrence. None was examined as prosecution witness or named in FIR. Prosecution version held doubtful. 8. (SC) 1972 SCMR 572 Independent witnesses present but not produced. Ocular evidence contrary to medical evidence. Accused acquitted. 9. (DB) 1973 PCr.LJ 990 Abdul Aziz etc. Disinterested witness not produced when occurrence took place in the most populous part of the town in daylight. Prosecution case resting only on the evidence of three interested-cum-hostile witnesses and their testimony irreconcilable with medical evidence. Such witnesses disbelieved. 10. (DB) 1976 PCr.LJ 243 Mangio. Non-partisan and natural witnesses not examined by the prosecution. Held, adverse inference to be drawn against the prosecution. 11. (DB) 1976 PCr.LJ 1082 Mushtaq Ahmed etc. Partisan witnesses only, produced at the trial although the occurrence took place in a congested bazar. Recoveries of crime weapons doubtful. Accused acquitted. 12. 1973 SCMR 12 Karam Dad v. Abdullah. (DB) 1973 PCr.LJ 649 Siraj etc. No independent witnesses produced. Incident taking place in busy cattle fair in presence of hundreds of people, yet no independent witness produced. Circumstances very suspicious. High Court rightly acquitted the accused. 13. (DB) PLD 1962 Kar. 800 Mamoon. Eye-witness not mentioned in the FIR. The evidence of the eye-witnesses not mentioned in FIR ruled out of consideration. iii. More interestingly, instead of making above mentioned FIR named witnesses as eye-witnesses, the prosecution managed to get recorded statement of the following six other police officials under section 161, Cr.P.C. as eye-witnesses after a delay of 09 days to 47 days of occurrence despite the fact that as per their own statement before the court, they are the officials stationed and posted at Police Station Ali Abad and were present at police station during occurrence of the incident as well but very surprisingly their statements under section 161, Cr.P.C. has been recorded after a delay 09 to 47 days and no explanation has been given for this extraordinary delay which makes their whole evidence absolutely doubtful and unreliable: i. PW-16 IP Retired Gulzar Hussain FIR Lodger/complainant: Very interestingly his statement under section 161 has not been recorded at all. ii. PW-1 Mohammad Ismail: Statement under section 161, Cr.P.C. recorded on 07/09/2011 after a delay of 26 days. iii. PW-15 HC Ali Ahmad Jan: Statement under section 161, Cr.P.C. recorded on 20/08/2011: after a delay of 09 Days. iv. PW-04 HC Mohammad Yasin: Statement under section 161, Cr.P.C. recorded on 26/08/2011: after a delay of 15 days. v. PW-07 HC Mohammad Akram Baig: Statement under section 161, Cr.P.C. recorded on 28/09/2011 after a delay of 47 days. vi. PW-11 SGC Naeemullah Baig: Statement under section 161, Cr.P.C. recorded on 20/08/2011 after a delay of 09 days. It is an admitted fact that the prosecution did not mention any kind of explanation or reason in respect of extra ordinary delay of 09 to 47 days in respect of recording statements of above eye-witnesses under section 161, Cr.P.C. The following citations will make it clear that, the testimony of the above named eye witnesses in such a circumstance will be highly doubtful and unreliable: 1998 SCMR 70, Muhammad Khan v. Maula Bakhsh. Statement under section 161 recorded with delay without any plausible explanation casts serious suspicion on the credibility of witnesses, such evidence not relied upon. (DB) PLD 1960 Kar. 697 Qabil Shah. 48 hours' delay. Witness examined by the police 48 hours after the occurrence. Veracity of such eye-witness account doubted. (DB) PLD 1973 Kar. 693, Jalal 3 days' delay in examination of eye-witness after the occurrence is enough to look askance at his evidence. Such a person is not a witness of truth. (FSC) 1982 PSC 1217 Muzaffar Khan. Statement to police after 2 days by the persons who were not mentioned as the witnesses by the prosecutrix, held, such persons could not be treated as eye-witnesses. 4 days' delay. Statement of an eye-witness recorded by police 4 days after the incident ruled out of consideration by the Court. (DB) PLD 1965 Kar. 76 Badhu. 4 days' delay in recording statement by the police when the PW was running a shop near the police station and also going with the first informant to the police station. Statement not relied upon. (SC) 1976 SCMR 236 Sahib Gul v. Ziarat Gul. Police recorded the statement of a prosecution witness 22 days after the occurrence in a murder case. No explanation for this inordinate delay given. Held, a case of further inquiry. Bail allowed. 1994 MLD 862, Abdul Ghani. Statement under section 161, Cr.P.C. recorded after delay without explanation for such delay is to be ruled out of consideration. 1993 SCMR (S.APP.C.) 550, Syed Saeed Mohammad Shah. Gross and unexplained delay (11 days) in recording statements of P.Ws. under section 161, Cr.P.C. Ocular evidence not fit to be accepted without strong corroboration. (DB) 1976 PCr.LJ 34 Wahid Bakhsh. PLD 1978 Pesh. 38 Asfandyar Eye-witness appearing before police after 10 days, of occurrence no explanation for keeping silent for such a long period. Held, no reliance can be placed on such eye-witnesses. (DB) 1989 PCr.LJ 92, Zaheer-ud-Din. 15 days after the occurrence, a witness was examined by the police and no explanation offered for the delay. Held: not safe to rely on such evidence. (DB) 1976 PCr.LJ 249 Allah Din etc. Statements of witnesses recorded 15 or 20 days after occurrence, held reliability of such witnesses is always questionable. 1984 SCMR

930. Mohammad Iqbal. 1 month's delay. Witnesses examined by the police after lapse of one and a half months. Testimony of such witnesses is to be disregarded. (DB) 1974 PCr.LJ 391 Muhammad Rafiq etc. 1974 PCr.LJ 391. 2 months after the occurrence a witness when examined by the police, such witness was not believed without explanation for delay. PLD 1968 Lah. 49 Amir. iv. As per statement of FIR lodger/complainant PW-16 SHO Gulzar Hussain, the mob entered into the police station by beating guard Abdul Qayum FC standing at the gate of the police Station whereas all the above named so called eye-witnesses contradicted the same by stating that the mob entered into police station through windows of kitchen after breaking the same. Interestingly the site plan Ex.PW-6/A prepared and signed in presence of Magistrate Salman Ali PW 06 categorically states that the accused Shukuralh Baig along with mob had pelted stones on the windows and roshandan of kitchen from garden of Raja Sakhi Ahmad Jan a place situated outside the police station towards east. This document does not show any indication that the window of kitchen was broken by mob and entered the police station through this way. This document further falsify the statement of PW-01 Mohammad Ismail HC in respect of presence of Shukur Ullah Baig in side the police station during the occurrence. Moreover, the PW 16, the FIR lodger states to be inside the police station at the time of occurrence but the PW-01 Mohammad Ismail HC states that during the incident the PW-16 was somewhere else outside the police station. The PW-01 HC Mohammad Ismail falsify his own statement by saying that most of the rioters were muffled among them he recognized some accused which is apparently seems to be untrue and self-contradictory. v. That just to strengthen their statements, the following prosecution eye-witnesses pretended themselves to be injured as a result of occurrence and stated to be examined and treated by the medical officers but no medico legal certificate in this regard has been produced by the prosecution before the trial court. Moreover very surprisingly all the three Medical Officers examined by the trial court, totally falsified the statements of the so called injured witnesses by not mentioning even their names in the statement before the trial court: PW-01 Mohammad Ismail claims that as a result of incident he became injured and he managed to reach Askurdas Dispensary and got treatment. But Medical Officer of this Dispensary, Dr. Wali Mohammad PW-23 totally negates this story in his statement before the trial court and does not mention the name of this so called eye-witness in his statement among those injured officials who were examined and treated by him on the day of occurrence. PW-07 Mohammad Akram Baig claims that after the occurrence he went to doctor for treatment but none of the three Medical officers examined before the trial court did mention his name in their statements. PW-11 SGC Naeem Ullah Baig claims that on the day of occurrence he went to the house of Iqbal Karim from where at about 11 p.m. at night went to Agha Khan Hospital at Karim Abad and got discharged after first aid and thereafter they referred him to DHQ Hospital Gilgit. Interestingly no doctor from Agha Khan Hospital came forward to substantiate his statement. However PW Shahid Ullah Baig Medical Officer Ali Abad Hospital contradicted his story by stating that the PW-11 Naeemulah came to him on 14/08/2011 for medical checkup and examination and it was he who referred him to Gilgit Hospital. PW-15 HC Ali Ahmad Jan stated in his statement that after the incident he went to doctor along with the injury sheet. But none of the three medical officers examined before the court mentioned even his name in their statements. vi. The Learned Trial Court misconceived about the statements of accused/respondents recorded under section 342, Cr.P.C. before the trial court that they have admitted to be present at the place of occurrence hence liable to be convicted and sentenced. The statements of accused recorded under the above referred section and careful perusal of record of case files makes it clear that the accused actually stated about their presence in respect of another incident reported under:- FIR No. 23/2011 which took place at a different location of Ali Abad Town at a different time on the same day wherein two affectees of Ata Abad were killed and five injured as a result of firing by DSP Babar and his Gunman FC Azam. The accused further stated that since they were eye-witnesses of that incident as such the police has involved them in the present case to harass and pressurize to stop them from giving evidence to save their police officials from the murder case.

14. The Recoveries. As per record of the case, nothing recovered from accused Baba Jan, Irfan Ali, Aleemullah Khan, Ahmad Khan, Ghulam Abbass, Ameer Ali, Rashid Minhas Mittu, Musa Baig and Shukurallah Baig. However the prosecution has shown recoveries against accused Iftikhar Hussain, Salman Karim, Irfan Karim, Sher Khan and Sarfaraz Khan but the same are highly doubtful, fake and unreliable because of the following reasons: i. As per prosecution story, the mob broke the koat and looted the arms and ammunition stored therein as per details mentioned in FIR but very surprisingly the prosecution could not produce any police record, document or witness to substantiate this fact that such kind and quantity of arms and ammunition were actually existed in the police station arms store/koat before the incident and the same is missing as a result of alleged incident. ii. It is an admitted fact that the police could not show any recovery from the above named 12 accused at all except the alleged recovery from the following five accused persons: Salman Karim: A G-3 gun on 18/08/2011 Irfan Karim: A Semi Automatic on 18/08/2011 Iftikhar Hussain: 79 Nos of 7.62 mm live cartridges on 07/09/2011 Sher Khan: One .12 Bore Shot Gun on 17/08/2011 Sarfaraz Khan: 80 nos live cartridges of G-3 on 03/11/2011 It is very interesting to note here that the learned trial court acquitted accused Salman Karim and Irfan Karim having alleged recovery of fire arms of G-3 gun and a semi automatic rifle but convicted accused Iftikhar Hussain, Sarfaraz Khan and Sher Khan having alleged recovery of commonly available live rounds and a .12 bore shot gun. iii. The prosecution, instead of making independent notables and respectable of the locality, has made only police officials as marginal witnesses of all the recoveries despite availability of non partisan private and public witnesses at spots being a place of thickly populated locality. The testimony of police officials thus has lost credence in such a situation and the recoveries would become totally unreliable when no public witness was associated with the recovery proceedings. Moreover the recovered arms and live cartridges were not sent to forensic laboratory which resulted loss of evidentiary or corroborative value of the same as well. iv. Alleged recovery of weapons and live cartridges from the above named 05 accused have been made after a delay of 07, 08, 17, and 82 days of occurrence respectively. It is hard to believe that the accused would keep on hiding the police weapons in their owned places just for waiting for its recovery by the police in a situation when the police was searching their looted weapons like a hungry hunter and recovering the same from public places of Ali Abad Town in a thrown away position. v. As per prosecution story and recovery memo Ex.PW-9/A, two empty magazines of Kalashnikov and 79 alive rounds of 7.62 mm were recovered from a plot having boundary wall owned by the accused Iftikhar Hussain at a place known as Giram located at a distance of 500 meters from police station. But PW-25 Farman Ali Magistrate, specially brought as a witness to these recoveries, totally falsified the statements of prosecution recovery witnesses by stating that the number of alive rounds of 7.62 mm recovered from accused Iftikhar Hussain were 17 and the same were recovered from a plot having no boundary wall at a different place know as Gurman Aliabad which is located at a distance of 1.5 Kilo Meter from Aliabad Police Station. vi. A recovery of .12 bore shot gun has been shown against the accused Sher Khan by the prosecution. But it is very interesting to note here that the weapon of .12 bore shot gun claimed to be recovered from the accused does not include in the detailed list of FIR looted by mob from police station during the incident. In a situation explained above, the recoveries shown against the above named 05 accused seems to be concocted, fake and not genuine and lacks credibility and reliability thus could not become a ground for a conviction against the accused at all. The following case laws further substantiate whatever discussed above. 1993 MLD 551 Case Title:- Muhammad Akram v. The State. Citation:- Section 103

objection of associating public witnesses with recovery is to obviate possibility of false implication of accused persons. Recoveries would become unreliable when no public witness was associated while making inquiry though public witnesses were available. 1994 MLD 1419 Case Title:- Dur Muhammad v. The State. Citation(sic.)

S.13-D

Double barrel gun

Recovery of

Conviction for

challenge to

Contention that lower courts did not give any importance to fact that in spite of availability of private persons, none was asked to act as Mashir

Admission of prosecution witnesses, is also on record that there were shops and hotels ground place of recovery of gun and so many private persons were available but only police party acted as Mashir - in view of the above testimony of police officers has lost credence-Held-prosecution has failed to establish charge against petitioner, beyond reasonable doubt-conviction set aside. 1985 PCr.LJ 1987 Case Title :- Bashir v. The State Recovery

Recovery of carbine which is not sent to forensic laboratory

Carries no evidentiary or corroborative value

it cannot be used to rehabilitate ocular evidence which is wholly unreliable. 1977 PCr.LJ

671. Case Title: Muhammad Azeem v. The State. Citation:

S. 13

Conviction propriety of

Recovery

Benefit of Doubt

only two police officers appearing as witnesses to recovery and not a single independent public witness cited possibility that accused was falsely implicated in case, not ruled out accused given benefit of doubt and acquitted in circumstances, {witnesses benefit of doubt} 1983 SCMR

350. Ahmed Hayat. Recovery of blood-stained knife 13 days after the arrest of the accused from cowdung heap. Held, unlikely that blood-stain will remain intact so as the origin may be detected. Riaz Masih 1995 SCMR 1730. Recovery of blood-stained knife from appellant by itself is not sufficient for conviction on murder charge. Recovery also held doubtful because attesting witnesses are police officials only. The recovery was made on last day physical remand of the accused. Recovery disbelieved. PLD 1995 SC 475, Muhammad Arshad. Blood-stained hatchet recovered after 22 days of the occurrence from the house of the accused. It is hard to believe that the accused would keep blood-stained weapon in his house for so long. Recovery not relied upon. (DB) PLD 1973 Lah. 467 Muhammad More than 46 days elapsing between occurrence and actual recoveries. Such inordinate delay creates doubts as to whether the recoveries were genuine or fake. Held, recoveries not reliable. 1985 PCr.LJ 1987, Bashir Recovery of Fire-Arms (Carbine) not sent to forensic Laboratory has no corroborative value.

14. Legal Sanctity of confessional statement of accused under section 21-H of Anti-Terrorism Act, 1997: i. The matter pertains to the interpretation of legal position on confessional statement of an accused before the police officer in terms of section 21-H of Anti-Terrorism Court, 1997. The statement of an accused relating to inculpatory statement before the Police Officer is not admissible and on the touch stone of the same principle a confessional statement, in terms of section 21-H of Anti-Terrorism Act, 1997, may have no evidentiary value and is not as such admissible. This apex Court in its judgment under reference 2012-14 GBLR 227 has held that: "the Anti-Terrorism Act, 1997 is a federal statute and is made applicable to Gilgit-Baltistan also thus the interpretation of section 21-H ibid to the contrary may not be justified in terms of Article 10-A of the Constitution which assures fair trial. This is settled principle of law that any law or provision of law, in conflict to the constitution is not valid." ii. The learned Trial Court while convicting and sentencing the accused/respondents has based upon the confessional statements of respondents/accused made before the police officials under section 21-H of Anti-Terrorism Act, 1997 terming the testimony of the same as admissible under the law and by doing so the learned Trial Court mainly relied upon a decision of learned Chief Court Gilgit Baltistan under reference 2011 PCr.LJ 389 but it is interesting to note here that this judgments has become overruled as a result of judgment of this Apex Court under reference 2011 GBLR 475 wherein it has been held as under: "The basic principle of criminal administration of justice that an accused is an innocent child of law unless he is proved guilty and this principle is based upon the concept of justice in Islam. There is no cavil to the proposition of law that conviction can alone sustain on the basis of even a retracted confession made by an accused person before a judicial officer if it is found truthful and confidence inspiring and since no sanctity is attached with the confession of guilt before a police officer therefore such confession cannot be considered at par to the judicial confession and is not admissible in evidence to be made basis of conviction. The question of admissibility of confession before a police officer under section 21-H of Anti-Terrorism Act, 1997 was considered by the Supreme Court of Pakistan in Mahram Ali's case (PLD 1998 SC 1445) supra wherein it has held that the confessional statement before a Police Officer was not admissible and observation was made for suitable amendment of section 21-H of Anti-Terrorism Act, 1997. This is settled law that a confession made before a judicial officer subject to the credibility of statement, was admissible in evidence, whereas a confession made before a Police Officer or any other person in authority or a private person, could have no legal sanctity and could hardly be treated as extra judicial confession in law. Confession of the accused under custody before a police officer, could not be free from undue influence and coercion as police custody itself was considered coercion and a statement during custody could not be voluntary. This is settled principle of constitutional law that a person an accused of an offence, can not be compelled to be witness against himself and in that context the judicial confession made by accused voluntarily before the Magistrate which was recorded after fulfillment of legal requirements, could be admissible as evidence against him but a confession made before a police officer, could not be equated with the confession before Magistrate because no presumption of its being voluntary, could be attached with such a statement. There is no compulsion for the court to accept the confessional statement of accused recorded by judicial officer or a police officer, but confessional statement made before a Judicial Officer had evidentiary value to be accepted as evidence, whereas a confession made before a police officer was not considered legal evidence. The Official Authority of a police officer, may create an impression of compelling accused to make confession". In a similar nature case under reference 2004 MLD 1337 it has been held that: "Recovery of hand grenades from possession of accused was not witnessed by any independent. Police officials, were no doubt as good witnesses as any other from the public, but when in a case the very occurrence on the alleged date and spot was highly doubtful, recovery of incriminating material in the absence of independent witnesses, had to be looked askance at. Alleged confessional statement of accused thought had been recorded after fulfilling all legal formalities, but same having been recorded by a police officer, would cast a serious doubt on its voluntariness despite its admissibility under section 21-H of Anti-Terrorism Act, 1997. Question was not merely of admissibility or otherwise of a confessional statement, but the question was its voluntariness or otherwise before a person who could never be thought to be independent, impartial, non-partisan and separated from those who were entrusted with the job of investigation. Confessional statement of accused was of no help to prosecution as same was not voluntary. Prosecution having failed to prove its case beyond any shadow of doubt, their conviction and sentence recorded by Trial Court were set aside and they were set aside free". In the light of the above discussion, there can be no departure to the principle that a confession before a police officer is not admissible in evidence under the provision of Qanun-e-Shahadat, 1984 and cannot be used against the accused at the trial at par to the judicial confession for the purpose of conviction. The confession before a Police officer may carry the presumption of coercion and undue influence unless it is established on record that an accused voluntarily made a statement before a police officer quite free from any influence or coercion. The voluntary confession before a police officer who is not associated with the investigation of case may have the status of an extra judicial confession which is a very weak type of evidence and cannot be relied upon without independent corroborative evidence of sound and un impeachable character. Thus I fully agree with the findings of Honourable Supreme Court of Pakistan given in Mehram Ali v Federation of Pakistan (PLD 1998 SC 1445) and of this Apex Court verdict given in Ateeq Hussain and others v. The State's case (2011 GBLR 477), wherein this issue has exhaustively been dealt with to declare the provision of section 21-H of Anti-Terrorism Act, 1997 violative and ultra vires to the Article 17 of the GB (Empowerment and Self-Governance) Order, 2009 read with Articles 10-A, 13 and 25 of the Constitution of Pakistan. The Anti-Terrorism Act, 1997 is a Federal Law which has been made applicable to Gilgit Baltistan and a provision of federal law declared by the Supreme Court of Pakistan ultra vires to the Constitution of Pakistan thus can no more be treated as part of statute and would have no legal effect.

15. The nut shell of the above discussion is that: i. The prosecution demolished its case by not making those police officials as eye-witnesses who were specifically named by complainant SHO Ali Abad in his FIR as witnesses being present at the police station when the provoked mob attacked Ali Abad police station. ii. In presence of FIR named eye-witnesses, the manure and arrangement of other police officials as eye-witnesses and recording their statements under section 161, Cr.P.C. after an extra ordinary delay of 09 to 47 days without mentioning any explanation by the police and their contradictory and false statements before the trial court as explained supra, has made the prosecution case as totally unreliable highly doubtful false and fabiracted. iii. The extra ordinary delay in making recoveries from 05 out of 17 accused and by making interested and partisan police officials as marginal witnesses to these recoveries and their contradictory statements as well made the recoveries as highly doubtful, false, concocted and unreliable. iv. No Medico-legal Certificate existed on case file except police injury sheets mentioning no description and nature of injuries of FIR named witnesses along with examination of three Medical Officers as witnesses who stated to make check up and treatment of those police officials on the day of occurrence who were named in FIR as witnesses but surprisingly the prosecution did not make none of them as eye-witnesses of the occurrence demolishing its case as a result. v. The confessional statement of accused/respondents before the Police Officer under section 21-H, Anti-Terrorism Act, 1997 has no legal effect being violative and ultra vires to Article 17 of Gilgit-Baltistan (Empowerment and Self-Governance) Order, 2009 and Articles 10-A, 13 and 25 of the Constitution of Pakistan as declared by this Apex Court as well as Supreme Court of Pakistan supra.

16. In the light of the above discussions, the Appeals Nos.05/2015, 06/2015, 07/2015 and 10/2015 filed by the State stands fail and accordingly dismissed. There shall be no order as to costs. Consequently the judgment dated 09/04/2015 passed by the learned Gilgit-Baltistan Chief Court in Criminal Appeals Nos. 34/2014, 35/2014, 36/2014 and 40/2014 under FIR No. 20/2011 are upheld and the respondents stand acquitted. Sd/- Shahbaz Khan, J. Majority decision of the Court.

31. All the above appeals Nos. i.e. Cr. Appeal No. 05/2015, Cr. Appeal No. 06/2015, Cr. Appeal No. 07/2015 and Cr. Appeal No.10/2015 filed by the State are allowed. Sd/- Dr. Rana Muhammad Shamim, C.J. Sd/- Javed Iqbal, J Sd/- Shahbaz Khan, J HBT/123/GB Appeals allowed.