2017 PLP 2035 (MLD)

MUHAMMAD ALAM, J.

This is a criminal appeal under section 25 of ATA, read with section 410, Cr.P.C. against judgment/ order dated 18-06-2015 passed by the judge of Anti-terrorism Court G.B. Gilgit, whereby, the trial court has convicted the appellant under section 13 A.O. and have acquitted him from the offences of sections 302, 324, 341, 353, 186, 427, 114, 147 and 34 P.P.C. Appellant was also charged for the offences of sections 6/7 of Anti-Terrorism Act, 1997 along with his co-accused. Through impugned order, learned trial court has convicted, convict/accused Mohammad Alam, convict/accused Saqib and convict/accused Maqsad Nayab besides convict/ appellant (Mehboob son of Himat Wali). As only appellant has challenged the impugned order, therefore, our today's order will be effective only against appellant and as to rest of the convicts, the impugned order will remain in field and will operate against them, if has not been reversed or is not reversed by any other competent forum. So, hereunder, appellant means the only appellant/convict, Mehboob.

2. Police of P.S. Gahkuch chalked FIR No.10/2014 and FIR No.11/14, in connection with occurrence that took place in the bazaar of Gahkuch town. Police chalked FIR No.10/14 on the written report of Barkatullah Khan, SIP/SHO P.S. City Gahkuch, and chalked FIR No.11/14 on the report of Akbar Hussain IP/SHO P.S. City. Prosecution story of occurrence is that Mst. Gul Nasreen, daughter of Himat Wali, resident of Gahkuch, eloped with deceased Abdul Latif for marrying with him and police arrested both of them from Juglote Gilgit. Police took both the said persons to the court of Judicial Magistrate Gahkuch, where court marriage was effected and the learned court directed police for safe transit of both of them to their house. Police team took the said two persons in two vehicles, and at the time of occurrence, the assailants opened indiscriminate fires on the said vehicles. Police also retaliated. As result of the firing, deceased Abdul Latif died while many police persons received bullet injuries. After chalking above FIRs, police presented charge sheet/challan in the court of ATC Gilgit, who through the impugned order, acquitted all the accused from the offence of section 302, P.P.C. and other offences except the offence of section 13 Arms Ordinance. Through impugned order/judgment, the court convicted and sentenced the appellant for the offence of section 13 A.O. Feeling aggrieved from the same, appellant has filed this appeal. For ready reference, we reproduce the relevant part of impugned order which goes as under:-- 11. "Charges under section 13 A.O. against the above named accused have already been framed separately in the above mentioned cases and the accused have failed to produce any valid licenses for the arms recovered from them by the police. As the accused have committed the main offence and they have effected a compromise with the L.Rs. of the deceased and injured persons, as such the charges leveled against the accused Mehboob, accused Muhammad Alam, accused Saqib and accused Maqsad Nayab is fully proved. Hence, I convict accused Mehboob under section 13 A.O. and sentence him to undergo 11 months 21 days and the convict accused shall pay fine of Rs.3000/-. I convict accused Saqib under section 13 A.O. and sentence him to undergo 11 months 20 days and the convict accused shall pay fine of Rs.3000/. I convict accused Maqsad Nayab and sentence him to pay fine of Rs.3000/. and I also convict accused Muhammad Alam under section 13 A.O. and to undergo 4 months and 17 days and the convict-accused shall pay fine of Rs.3000/. The amounts of fine be deposited in Government treasury and the copies of challans be annexed with relevant case file each."

3. We have heard learned counsel for appellant and learned Deputy Advocate General and have very thoughtfully considered their valuable arguments. At the outset of their arguments, learned counsel for parties argued on the application for condonation of delay in filing the appeal. The appeal in hand is clearly time barred, but keeping in view the peculiar nature of the impugned order, we allowed the petition for condonation of delay and on joint request of counsel for parties, we heard arguments on the appeal although the case was not fixed for arguments.

4. In the very peculiar circumstances of the case in hand, learned trial court has passed a unique order. The impugned order is unique in the sense that the trial court did not base the impugned order on any prosecution evidence and instead, based the same on the compromise that appellant effected with the legal heirs of deceased and the injured persons in connection with offences reported through FIR No.10/14. From ex-facie perusal of impugned order, it is evident that a jirga appeared before the learned trial court with a compromise of the appellant and his co-accused with the legal heirs of the deceased and other persons who received bullet injuries in the occurrence, reported through FIR No.10/14. Learned trial court instead of recording prosecution evidence in proof of the guilt of appellant, in connection with the occurrence reported through FIR No.11/14, based the impugned order on the compromise filed in connection with proceedings regarding the occurrence reported through FIR No.10/14.

5. We are of the confirmed opinion that the two occurrences reported through FIR No.10/14 and FIR No.11/14 are quite distinct and different in nature. In the occurrence of FIR No.10/14, appellant and his co-accused are charged for committing murder of deceased Abdul Latif and causing bullet injuries to many persons of the police team. We have noted that there are many offences which are not compoundable, that appellant and his co-accused were charged with through FIR No.10/14, but for reasons better known to the trial court, the court was passionate enough in accepting the compromise and acquitting the appellant and his co-accused, even from the offences which were not compoundable. We, hereunder, term the occurrence of FIR No.10/14 as main occurrence and, in our opinion, the compromise in the main occurrence is never sufficient proof of guilt of the appellant for the occurrence of FIR No.11/14. We are of the view that learned trial court has adopted his own style of convicting and sentencing the appellant instead of following the relevant law of evidence which mandatorily requires recording of prosecution evidence for basing all judgments/orders of conviction. Recording conviction/ sentence without recording evidence or admission of convict/accused is not only astonishing but is displaying the alarming attitude of any judicial officer.

6. In the sequel of above discussion, we allow this appeal and hold that the impugned order is fit to be set aside to the extent of its application and operation against the appellant (Mehboob). As to rest of the convicts/accused, we have passed our opinion, supra of this judgment. Appeal allowed accordingly. This file be consigned to record. HBT/105/GB Appeal allowed.