2016 P Cr (PLP)

MALIK HAQ NAWAZ, J.

The convicts/appellants were booked for the offences vide FIR No. 168/2011 of Police Station City Gilgit.

2. Since Criminal Appeal No. 01/2016 (Assadullah v. The State) and Cr. Appeal No. 3/2016 (Waqas Ahmad v. The State) are similar in nature and outcome of one FIR, therefore, these are being disposed of by this single judgment.

3. Briefly story of the prosecution as highlighted by the complainant (examined as PW-3) in the trial Court is as under:- "Briefly stated the prosecution story is that the SHO Police Station City Gilgit has registered a case vide FIR Exh.PW-13/A on 14.11.2011 at about 2240 hours on the written application Exh. PW-3/A submitted by PW Anil Abbas son of Sher Afzal resident of Majini Mohallah, Gilgit, wherein the said PW, "stated that we, the applicants Anil Abbas son of Sher Afzal, Syed Asghar Hussain Shah son of Syed Ibrahim Shah and Mohammad Alam son of Mohammad Yahya residents of Old Polo Ground Majini Mohallah were preparing for lighting on 13th Rajab at Raqs Chowk. At about 10:30 to 11:00 pm at night we three ridded on the motorcycle and went to Shaheen Hotel Kashrote to bring the meal where it took about 20 minutes for packing of meal and having returned from there, we stopped in front of Al-Murtaza Book Depot Kashrote for purchase of Kabab. Mr. Ashgar Hussain stayed on the motorcycle and we two stood on footpath for purchase of Kabab. In the meanwhile a motorcycle was coming from Western side Naseem Chowk towards Eastern side Kashrote and it came in front of us. Indiscriminate firing was opened on us with weapons and went towards Kashrote. Two unknown persons were riding on the motorcycle. As a result of firing, we got injured and fell down. Police mobile came there after 5 minutes and took us to the hospital. "On the said application, FIR Exh. PW-13/A was registered and investigation was entrusted to the investigation wing".

4. After completion of investigation an incomplete challan was submitted in the trial Court against the present appellants and accused Faizan Akhtar was placed in column No.2 of final police report submitted under section 173, Cr.P.C.

5. On 30-04-2013 the convicts/appellants were finally charged to which they pleaded not guilty and PWs were summoned for evidence, and to prove the case, prosecution examined 13 PWs and after closure of prosecution evidence convicts/appellants were examined under section 342, Cr.P.C., on 11.09.2013. However, both the convicts/ appellants neither examined themselves under section 340(2), Cr.P.C., nor opted to produce any defence evidence and the learned trial Court after hearing the arguments of both the parties fixed the case for announcement of judgment. The judgment was announced on 31.12.2015, whereby both the convicts/appellants were adjudged guilty and sentenced. The relevant portion of judgment is reproduced as under:- "In the light of the above discussions, I hold that the prosecution has proved guilt of the accused Waqas Ahmad and accused Assadullah for murderous assault on injured Syed Asghar Hussain, injured Aneel Abbas, injured Alam and injured Qadar Khan, hence, I convict accused Waqas Ahmad and accused Asadullah under section 324/34, P.P.C. read with section 7(c) of the Anti- Terrorism Act, 1997, for murderous assault and caused injuries to the above named injured persons and sentence them to rigorous imprisonment for 10 years and fine of Rs. 100,000/- (Rupees one hundred thousand) each. In default thereof, the accused to suffer imprisonment for a term of six months each. The above named accused are also hereby convicted and sentenced under section 337-D, P.P.C. read with section 7(c) of the Anti-Terrorism Act, 1997 to pay Arsh of Rs. 100,000/- each to the victim/injured persons namely Syed Asghar Hussain, Aneel Abbas, Alam and Qadar Khan and also sentence them to rigorous imprisonment for 10 years. Both the sentences shall run concurrently."

6. Being dissatisfied from the verdict of the learned trial Court both the convicts/appellants preferred separate appeals, which are now before us.

7. The learned counsels for the appellants submitted at bar that there is no worth reliance evidence against both the appellants and they have been convicted on the basis of surmises and conjectures, which is against the principles of dispensation of criminal justice. The learned counsels submitted that it was a night occurrence and the accused were not nominated in the FIR. Per arguments of learned counsel PW-1 S.P. Wasal Khan recorded two confessional statements under section 21-H of the accused Waqas Ahmad i.e. 1st on 20.10.2012 and second on 24.11.2012, which are self contradictory and there is no other reliable evidence on record to connect the appellant with the crime. The appellant Waqas Ahmad was arrested on 16.10.2012 and was sent to judicial lock up after completion of investigation in the instant case. His custody was retaken on 24.11.2012 in the same case and a .30 bore pistol was recovered as a weapon of offence in the instant case. Accused Faizan was arrested by the local police and was released under section 169, Cr.P.C., by JIT. However, no incriminating recovery was affected from the accused Assadullah and only evidence against him, is his confessional statement under section 21-H, without any other corroboratory evidence and both the convicts/appellants are entitled for clean acquittal.

8. On the other hand when the learned Dy.A.G. was confronted with the arguments of the learned defence counsels, he argued that prosecution has proved its case beyond any shadow of doubt against the appellants and the judgment of trial Court is well reasoned and supported by facts and law. The learned Dy. A.G., submitted that the confessional statements of both the accused are voluntary and without any undue pressure or duress and are supported by the report of Forensic Expert exhibited as Exh. P/A dated 08.09.2015 and available at page 79 of paper book besides the report of chemical examiner marked as PB dated 08.09.2015, which is regarding the blood stained shirt and blood stained trousers of the victims Aneel Abbas, which piece of evidence if read together are sufficient to establish a prima facie case against the accused. Per learned Dy. A.G, the conviction of the appellants be maintained in the larger interest of society and technicalities if any be overlooked in such like cases.

9. We heard counsel for both the parties at considerable length and scanned the relevant record with their able and valuable assistance. We despite of our best efforts and due application of judicial mind were unable to find any legal worth reliance evidence to connect the appellants with the alleged crime. As evident from the final police report submitted in trial Court and marked as Exh. PW.11/A, the crime in question was unearthed during investigation of FIR No. 41/2012 registered under sections 302/324/34, P.P.C. read with sections 6/7, A.T.A., 1997, whereby appellant Waqas Ahmad was arrested and he disclosed that he along with his two co-accused namely Assadullah and Faizan were also involved in the above incident. On his clue accused Assadullah was arrested, who confessed while in police custody, that he on the fateful day, facilitated in commission of the offence and took both his co accused to the place of occurrence on a motor bike and after commission of offence, they decamped from the place of occurrence. Accused Waqas Ahmad was arrested on 03.10.2012 and on 20.10.2012 he was produced before PW-1 (SP Wasal Khan) for recording of his confessional statement under section 21 H, wherein he attributed firing on the victim to co-accused Faizan and he was sent to judicial lock up on the same day as evident from the record. Accused Assadullah was arrested on 15.11.2012 and when on 06.12.2012, he was produced before SP Wasal Khan for recording his confessional statement under section 21-H, he divulged that in-fact firing was opened by accused Waqas Ahmad with a .30 bore pistol. On emergence of this new development, the I.O. of the case namely Jan Muhammad examined in trial Court as PW-12 submitted an application before the trial Court on 19.11.2012, for retaking custody of accused Waqas Ahmad, whose re-custody was accordingly allowed and was formally again arrested in the same case on 20.11.2012 and on his pointation a .30 bore pistol was also recovered as a weapon of offence. Another site plan was prepared on the pointation of accused in presence of Magistrate Ghaib Ali Shah which was marked as PW-12/F. On 29.11.2012 the I.O. again requested the trial Court for re-custody of accused Assadullah, which was allowed on the same day. On 03.12.2012, the place of occurrence was pointed out by accused Assadullah in presence of Magistrate Chiragh-ud-Din and the site plan was marked as Exh.PW.6/A and on 06.12.2012 accused Assadullah was produced before the PW-1 SP Wasal Khan, who recorded his statement under section 21-H and he was sent to judicial lockup on 06.12.2012.

10. When the learned Dy. A.G. was confronted with the above anomalies, he frankly stated that the statements of accused under section 21-H are "bundle of lies" and when he was categorically questioned as to which of the confessional statement of accused/appellant should be believed as true and correct and why, he was unable to defend the misdeeds of police officials and the IO who had played a game of "hide and seek" in the instant case. One wonder that all the members of JIT affixed their thumb impression on such a dishonest and lethargic investigations, without realizing that the same will undergo judicial scrutiny at any time. The I.O. of the case just fill in the blank and booked the present appellants, without collecting any circumstantial or corroboratory evidence. We observed with pain that two confessional statements of the accused Waqas Ahmad were recorded, which are mutually destructive and similarly two site plans were prepared on the pointation of the accused Waqas Ahmad in the presence of Magistrate and one site plan was prepared on the pointation of accused Assadullah which speaks a volume about the standard and transparency of investigation carried out in the instant case.

11. As far as the main contention of the learned Dy.A.G, that a conviction could be based on 21-H, we are afraid, we cannot scribe to this contention, as section 21-H of ATA-1997 has never been taken by Courts of the Country, with a good taste while considering the vires of section 21-H and its implications, Court has to see two vital aspects firstly its admissibility and secondly its voluntariness. If for the sake of arguments, we consider that section 21-H is admissible in evidence, then its voluntariness will be question mark, because if an accused was willing to confess his guilt, what were the extra ordinary circumstances, which prevented his production before a Judicial Magistrate particularly where, as in the case in hand, the Judicial Magistrate was conveniently available. Section-21-H offend against the spirit of judgment of Supreme Court of Pakistan reported in PLD 1998 SC 1445 and in a judgment reported in 2011 GBLR page

475. The relevant portion regarding the admissibility of section 21-H has been capitulated in para 20 of the said judgment which is reproduced as under:- Para20.... "In consequence to the above discussion we hold that the confession before a police officer is not admissible as evidence of guilt and provision of section 21-H of the Anti-Terrorism Act, 1997 being violative of Article 17 of Gilgit-Baltistan (Empowerment and Self Governance) Order, 2009 read with Articles 13 and 25 of the Constitution of Pakistan unless suitably amended as observed by Supreme Court of Pakistan in Mehram Ali's case supra cannot be treated a valid law. This is important to point out that in terrorism cases, usually direct evidence is not available and culprits may get undue benefit of the situation therefore, in the light of observation of Supreme Court of Pakistan in Mahram Ali's case, the suitable amendment in section 21-H of Anti-Terrorism Act, 1997 is necessary and Chief Secretary Government of Gilgit-Baltistan will take up the matter with Ministry of Law, Justice and Human Rights, Government of Pakistan for the amendment in section 21-H of Anti-Terrorism Act, 1997 on priority."

12. The Anti-Terrorism Court is a special Court and in terms of section 32 of Anti-Terrorism Act, 1997 is Court of Session, where provisions of Criminal Procedure Code, 1898 and of Qanun-e-Shahadat, 1984 mutatis mutandis have been made applicable to the proceeding before a special Court, which does not leave any ambiguity that self contained provision of Criminal Procedure Code, 1898 and Qanun-e-Shahadat, 1984, would be followed in the case of Anti-Terrorism Act, 1997 and no provision of Anti-Terrorism Act, 1997 would override the provisions of Constitution of Pakistan and Self-Empowerment Order, 2009. How a confession made before a police officer could be termed as voluntary. A confession made before police would be against the spirit of Article-38 of Qanun-e-Shahadat, 1984, Articles 13 and 25 of Constitution of Pakistan and Article-17 of Gilgit -Baltistan (Empowerment and Self-Governance) Order, 2009 and any confession made before a police officer would be suspected piece of evidence and will not advance the case of prosecution rather it will put the Courts further as guard to scrutinize the case of prosecution with extra care. Many a time certain observations have been made regarding the implication of section 21-H but no one bother to take any remedial steps in this regard. This piece of evidence being defective and "Conditional" in its character, when not finds any corroboration from any other evidence cannot be made a base for conviction.

13. Another piece of corroboratory evidence in the instant case is recovery of .30 bore pistol allegedly recovered from the appellant Waqas Ahmad. Suffice to say that the pistol was recovered on 23.11.2012 and the crime empties were recovered from the place of occurrence on 14.6.2011 but they were sent together to forensic expert on 11.4.2013. Such a long and inordinate delay in sending the pistol and crime empties together to the fire arm expert reduces its value to naught. The contention of the learned Dy. A.G, that no question was asked from the I.O. about any tampering does not absolve the prosecution from its duty. If the question regarding delay in sending the crime empties was not put to the I.O., the prosecution has to suffer for its consequences and not the accused.

14. After discarding the evidence of recovery and its positive report there remain nothing with the prosecution to maintain conviction of the convicts/appellants.

15. As discussed above each and every piece of evidence produced by the prosecution are mutually destructive and hits on its own core.

16. The result of above discussions is that the prosecution has miserably failed to connect the convicts/appellants with the crime. Both the appeals are allowed and the appellants are acquitted from the charges leveled against them. They shall be released forthwith, if not required to be detained in any other case. HBT/94/GB Appeals allowed.