2020 P Cr (PLP)

MALIK HAQ NAWAZ, J.

The respondent stood trial in the Court of learned Judge Anti-Terrorism Court No. 1 Gilgit on the basis of FIR No. 163/2006 dated 24-06-2006 registered under sections 302/109, P.P.C. read with sections 6/7, Anti-Terrorism Act, 1997.

2. Co-accused namely Naveed Hussain was convicted and awarded death sentence by the learned trial Court vide judgment dated 31-08-2009. The convict/appellant Naveed Hussain filed an appeal before this Court against his conviction, while the State/complainant has not filed any appeal against the acquittal of the present respondent. The appeal filed by the convict/appellant was dismissed by this Court and murder reference was answered in positive vide judgment dated 19-10-2010. While hearing appeal of the convict/appellant in Cr. Appeal No.16/2016 and in Cr. P.L.A. No.30/2016, the Hon'ble apex Court set aside the judgment of trial Court dated 31-05-2009 upto the extent of the respondent only and remanded back the case of the appellant to the trial Court for its decision afresh.

3. The learned trial Court again examined the case of the respondent in the light of the judgment/order of Hon'ble apex Court and acquitted the respondent vide judgment/order dated 28-03-2018, which has been challenged by the learned Dy. Advocate General before this Court on the plea that the respondent was the main mischief monger, who played a decisive role in enacting the whole tragedy of murder of a judge and the acquittal was unwarranted.

4. The learned Dy. Advocate General was confronted with the legal as well as the factual proposition, that when no appeal was filed by the State/Complainant against the judgment of learned trial Court dated 31-08-2009 and the death sentence of the convict/appellant Naveed Hussain was confirmed, who was later on executed. After receipt of direction from the Hon'ble apex Court the respondent filed an application before the learned trial Court for his acquittal, which was dismissed. The order dated 26-04-2017 passed by the learned trial Court was assailed before this Court but met with the same fate and it was clearly held by this Court vide judgment/order 17-05-2017, that this Court has no powers under Criminal Procedure Code to adjudicate upon a matter, which has finally been adjudicated upon by the Hon'ble apex Court and disposed. The judgment/order dated 07-05-2017 was assailed before the apex Court by filing Cr. Appeal No.14/2017 in Cr. P.L.A. No.26/2017, whereby judgment/order of this Court was upheld vide judgment/order dated 11-08-2017.

5. As discussed in para 3 supra, the learned trial Court re-heard the parties and re-affirmed the verdict of acquittal.

6. Paras 19 to 22 of the impugned judgment of learned trial Court are relevant, which are re-produced for ready reference:- "

19. This Court has tried the accused Sultan Ali only upto the extent of section 109, P.P.C. in the instant case for which the material available on record was insufficient to convict the accused Sultan Ali as reflected in page 47 of my detailed judgment dated 31-08-2009 passed in T.C. No.15/2006. There was no iota of evidence against accused Sultan Ali upto the extent of abetment or conspiracy and the prosecution had badly failed to collect any evidence against accused Sultan Ali as such Sultan Ali was acquitted from the instant case. This Court has given its finding on the available record, therefore, review of its own judgment without de novo trial would mean a gross violation of the procedure.

20. It is also important to note here that the Hon'ble D.B of Gilgit-Baltistan Chief Court, Gilgit vide judgment dated 19-10-2010 passed in Cr. Appeal No.17/2009 has maintained the judgment dated 31-08-2009 passed by this Court in T.C. No.15/2006 in "Toto" and thereby maintained the acquittal order of accused Sultan Ali and the said acquittal order of the Hon'ble D.B of Gilgit-Baltistan Chief Court is still in field being unchallenged by the State. The learned Public Prosecutor admitted the fact in the open Court and stated at bar that the State has not filed any appeal against the acquittal order dated 19-10-2010 passed by the Hon'ble D.B of Gilgit-Baltistan Chief Court. The learned Public Prosecutor further admitted that the State has also not filed any appeal against the acquittal order dated 28-11-2015 passed by the learned Judicial Magistrate Gilgit in Criminal case No.119/09 where under the accused Sultan Ali has been acquitted from the charges levelled against him under sections 223, 224, 225, P.P.C. vide FIR No.96/2016 of Police Station Airport, Gilgit. Both the above mentioned acquittal orders of accused Sultan All are still in field being unchallenged by the State.

21. This Court has no power to review its own judgment and be that as it may, accused Sultan Ali has already been acquitted from the offence under section 109, P.P.C. for which he was charged in the instant case, and as far as para 47 of my judgment is concerned, I have held that accused Sultan Ali is fully involved in escaping of convict accused Naveed Hussain from Sub-Jail Jutial Gilgit, but for the said charges, a separate case under sections 223, 224 and 225, P.P.C. was under trial before the Court of Judicial Magistrate, Gilgit and the said accused has already been acquitted by the learned Judicial Magistrate/Senior Civil Judge, Gilgit vide order dated 28-11-2015 passed in Criminal case No.119/09.

22. Keeping in view the above discussions, I hold that this Court had rightly acquitted accused Sultan Ali from the charge levelled against him under section 109, P.P.C. in the instant case. Hence, I, hereby maintain my findings upto the extent of accused Sultan Ali as held in page 47 of my detailed judgment dated 31-08-2009 passed in T.C. No.15/2006."

7. In the judgment of this Court dated 19-10-2.010, while maintaining death sentence of appellant Naveed Hussain, the name of the respondent does not figure, for two folds reasons that no appeal was filed against the acquittal of the respondent and secondly it was not agitated during arguments by the learned Dy. Advocate General that the murder was committed with the facilitation of respondent. In concluding para of the above judgment of this Court it finds mentioned as under:- "In the light of the material available on record and the statements of P.Ws. recorded under section 164, Cr.P.C. read with the confessional statement of the appellant/convict as recorded after the amendment in section 21-H of A.T.A. coupled with recovery of weapon of offence and its positive report, the act of the sub-warder and his relationship with the appellant/convict, we have come to definite conclusion that the prosecution has succeeded in establishing the guilt of the appellant. The judgment of conviction and sentence passed against the appellant is based on fact and there is nothing to indicate that the judgment is based on any error of law or it is opposed to well established principles of judicial approach or it can in any manner be characterized as unjustified. We are of the considered view that the sentence of death was rightly and carefully awarded to the appellant which does not admit of any interference by this Court. For the above circumstances, facts and reasons, appeal fails and is hereby dismissed. The judgment/order dated 31-08-2010 of the trial Court is upheld in toto. The murder reference made by the Administrative Judge Anti-Terrorism Court No.1 Gilgit Baltistan under the provisions of section 374, Cr.P.C. read with section 25 of the Anti-Terrorism Act is confirmed accordingly."

8. It is pertinent to mention here that a separate FIR No.96/2016 against the respondent under sections 223/224 was lodged, which per learned counsel for the respondent resulted in acquittal, giving another blow to the case of prosecution, while considering the merits of the present appeal. The judgment/ order of learned Judicial Magistrate dated 28-11-2015 depicts that the learned Judicial Magistrate keeping in view that none of the PW in their statements attributed any role to the accused which would show his collusion or negligence. No appeal was filed by the State against the acquittal of respondent from the above charges and the acquittal order dated 28-11-2015 attained finality.

9. In view of above discussion and the finding of learned trial Court, we are of the view that the acquittal of the respondent, which was announced by the learned trial Court vide judgment/order dated 31-08-2009 was not challenged by any of the aggrieved party. The respondent was charged under section 109, P.P.C., which was not proved as reflected in para 19 of the impugned judgment. No apparent infirmity has been pointed out by the learned Dy. Advocate General in the impugned judgment, which is upheld accordingly.

9. The appeal filed by the learned Dy. Advocate General is meritless and is dismissed. File be consigned to record after completion. SA/77/GB Appeal dismissed.