2018 PLP 1005 (MLD)

MALIK HAQ NAWAZ, J.

The appellant was booked for the offences under sections 302/34/114, P.P.C. read with sections 6/7 of Anti-Terrorism Act, 1997 vide FIR No.20/2011 registered at Police Station Gilgit.

2. After conclusion of trial the accused/appellant was found guilty and awarded various punishments. He filed Criminal Appeal No.17/2015 challenging the conviction, while trial Court sent reference under section 374, Cr.P.C. for conformation/otherwise.

3. During pendency of appeal a compromise was effected between the parties and as a result of compromise the appellant was acquitted by this Court on 19/9/2016 and murder reference was answered in negative.

4. A case under section 13 A.O. vide FIR No.120/11, was registered against the accused/appellant, which has been entrusted to me by the Honourable Chief Judge for disposal.

5. The learned counsel for the appellant submits that the case is false and the recovery is planted as no private persons from locality were associated in the recovery proceedings with sinister motive. The learned counsel submits that provisions of section 103, Cr.P.C. are mandatory in nature, which Section has been enacted to provide a safe guard against the possible padding. The learned counsel stated that the recovery memo. contains the date of recovery as 21/4/2016, whereas the site plan of recovery marked as Exhibit PW 7/B contains the date as 20/04/16 and it has also been overwritten, which makes the case doubtful and the accused may be relieved from the criminal liability.

6. On the other hand the learned Advocate General submitted that the case is proved against the appellant as the police officials are as good witnesses as any private witness, till any ill will is attributed and no such allegation against the witnesses is available on record. The accused has rightly been convicted by the trial Court. The learned Advocate General submitted that compromise itself is a proof of guilt of the accused and the conviction so awarded be maintained.

7. I have heard the arguments of both the learned counsel for the parties at length and perused the case file with their able assistance. It is evident from the FIR that the recovery was effected on 20/04/16 but the FIR has been lodged on 21/04/16 and no explanation is available regarding inordinate delay in lodging the FIR. The recovery memo. Exhibit PW 7/A has been prepared on 20/04/16 but the site plan of recovery has been prepared on 21/04/16 and same has been admitted by the Investigation Officer during cross-examination. Exhibit PW 7/B and PW 7/C contains the date 20/04/16, which makes whole of proceedings doubtful. The contention of learned Deputy Advocate General that the compromise is a proof of guilt of accused is devoid of any legal force as it has been held in some of judgments of this Court and even otherwise as a legal proposition that compromise is not an incriminating piece of evidence. The prosecution has to prove its case on the strength of its own evidence and cannot take advantage of any weakness of defence. The Investigation Officer (I.O.) of the case and PW-8 F.C. Ashraf Baig admitted during cross-examination that many people were present at the place of recovery but I.O. of the case did not bother to associate any independent witness in recovery proceeding, thus violated the mandatory provision of law, which cannot be waved in the absence of any valid and convincing reasons. The ultimate effects of above discussion are that prosecution miserably failed to prove their case against the appellant and he is acquitted from the charges extending him benefit of doubt. The appellant is present in court on bail, his bail bonds are discharged and his sureties are relieved from their liabilities.

8. Crime weapon 30 Bore Pistol bearing No.17921 stands confiscated in favour of state. 9 File be consigned to record after completion. JK/155/GB Appeal accepted.