2020 P Cr (PLP)

MALIK HAQ NAWAZ, J.

This appeal has been filed against a judgment passed by learned Judge Anti-Terrorism Court No.1 Gilgit. In terms of the said judgment the appellants were convicted and sentenced as under:- (a) Ashiq Hussain:- Under section 324, P.P.C. read with sections 6/7, A.T.A.,-1997 10 years' R.1 with a fine of Rs.2000000/-(two lac) in default thereof to undergo 6 months' R.I under section 33-D, 10 years' R.I. and to pay Arsh of Rs.100000/- (one lac) to be paid to victim Akber Khan. (b) Adam alias Azam Kalia:- Under section 324, P.P.C. read with sections 6/7 of A.T.A.,-1997. 10 years' rigorous imprisonment with a fine of Rs.100000/- (one lac) and in default thereof undergo 6 months' R.I. (c) Shafat Ali:- Under section 324, P.P.C. read with sections 6/7 of A.T.A., 1997. 10 years' R.I with a fine of Rs.100000/- (one lac) and in default thereof undergo 6 months' R.I.

2. Brief facts of the case in hand are reflected in the opening para of the judgment, which are re-produced in toto:- "Briefly stated the prosecution story is that DSP (Rtd) Noor-Alam (PW-6) the then SHO Police Station City, Gilgit has registered a case vide FIR Ex.PW-3/A on 10-01-2011, on the written application Ex.PW-3/A submitted by Muhammad Kumail (PW-3) wherein is state that, "I am resident of Majini Muhallah. Mr. Akbar Khan son of Shuja'at resident of Astore is Moozzain for about 20 years in Waziri Mosque situated at Majini Muhallah. Today on 10-01-2011 after Isha Prayers, Akbar Khan son of Shuja'at was present in Waziri Mosque. The other worshippers had left the mosque after offering prayers while the above named Moa'zin used to live in a room inside the mosque. In the meanwhile, unknown accused person(s) entered the mosque by scaling the boundary wall and entered in the room of Moa'zin and injured him by opening fire with the intention to kill him. The bullet has crossed the chest. About one year prior, fire was opened on the pesh Imam of the said Mosque whereas this is second incident. This incident is a result of sectarian terrorism. It is requested action may be taken against unknown accused person(s)/terrorism."

3. In order to prove the case prosecution examined 10 PWs. The gist of the evidence of prosecution witness is as under: PW-1 Dr. Tajammul Hussain:- Who examined the injured Akbar Khan and prepared injury sheet Ex.PW-1/A. PW-2 Akbar Khan:- Is the injured who was Moazzin in Waziri Masjid and stated that he opened the door of the mosque and was fired at and the shot hit his chest. I could not identify the persons who came there. PW-3 Kumail:- He removed the injured to the Hospital. PW-4 ASI Zaidullah Khan:- He was directed by SHO to proceed to DHQ Hospital to prepare the injury sheet, which he prepared and found a built injury on his chest. PW-5 Syed Ghaib Ali Shah Magistrate:- He in his presence accused Ahsiq Hussain pointed out the place of occurrence vide Ex.PW-5/A. Likewise accused Adam alias Azam Kalia and Shafat Ali pointed at the place of occurrence which has been marked Ex. PW-5/B. PW-6 DSP Noor Alam:- He registered the FIR No.09/2011 on the written application of PW-3 Kumail. PW-7 SP Wasal Khan:- Record conduct of confessional statement (under section 21-H) of the appellant marked as PW-7/A Ex.PW-7/B and Ex.PW-7/C. PW-8 Muhammad Mubeen:- Circumstantial witness, who also met the injured in hospital and on inquiry the injured told him that he could not see any one. PW-9 DSP (Retd.) Muhammad Izzat:- Conducted partial investigation of the case. PW-10 SP Jan Muhammad:- After falling ill of DSP Muhammad Izzat the remaining investigation was conducted by him.

4. On 16-11-2017 the appellants were examined under section 342, however, they did not opt to be examined on oath under section 340(2), Cr.P.C. nor opted to produce any defence witnesses.

5. On 05-05-2018, the impugned judgment was announced.

6. The learned counsel for the appellants raised multiple grounds in his appeal as well as in arguments and stated that the judgment passed by the learned trial Court is bad in law and not sustainable in the eyes of law. The learned counsel stated that names of the appellants are not mentioned in the FIR nor features of the assailants are mentioned in the statements. No identification parade was conducted by the I.O. after arrest of the appellants which was mandatory requirement in the eyes of law to establish identity of the culprits. The only evidence per learned counsel available with the prosecution is the confessional statements of the appellants under section 21-H, which are not admissible in evidence as no other supporting evidence is available against the appellants. The pointation of place of occurrence is also not admissible in evidence as it does not fall within the ambit of Article-40 of Qanun-e-Shahadat, 1984. The learned counsel lastly submitted that the appellants have been made scapegoat just to fill in the blanks and they deserve clean acquittal from the charges falsely levelled against them.

7. The learned Dy. Advocate General submitted that FIR was promptly lodged. The mode and manner of occurrence have been admitted by the defence and fully corroborated from the statements of all the three accused, which have been recorded by a very senior Police Official, who was having no ill will or malice against the appellants. The medical evidence is a corroborative piece of evidence, which could be read in evidence in the aid of prosecution. Lastly that the cases of terrorism are committed with pre-planning and the assailants always try to conceal their identity upto the possible extent. The appellants are habitual offenders and involved in many cases of terrorism hence they should be dealt with iron hands and the conviction be maintained.

8. This was a blind FIR in which no one was nominated. The features of the assailants were mentioned in the FIR nor any effort was made by the I.O. to conduct an identification parade. The I.O. of the case PW-9 DSP Muhammad Izzat very conveniently stated that appellant Ashiq Hussain was arrested in murder case of Advocate Mir Nawaz in FIR No. 60/2012 and during investigation before a JIT, he disclosed that he and his co-accused (appellants) committed the instant offence also. Accused Ashiq Hussain was re-arrested in the instant case on 03-08-2011 and on the same day he pointed out the place of occurrence Ex.PW-5/A. on 04-08-2011, appellant Adam alias Azam Kalia and Shafat Ali were arrested. On 09-08-2011 on the pointation of both the above accused Ex.PW-5/B was prepared. On 10-08-2011 the confessional statements of all the three accused were recorded under section 21-H of A.T.A.,-1997 and they were committed to judicial lockup. No recovery of weapon of offence was effected from any of the accused and I.O. stated that as per statements of accused Ashiq Hussain that same pistol was used by him in commission of offence which was already case property in the case FIR No. 60/2011. Hence I.O. of the case placed recovery memo of FIR No.60/2011 in the instant case.

9. It is pertinent to mentioned here that the accused Ashiq Hussain and Adam alias Azam Kalia and Shafat Ali who were convicted in murder case of Mir Nawaz Advocate vide FIR No. 60/2011, have been acquitted by a division bench of this Court vide judgment rendered in Criminal Appeals Nos. 17, 18/2012 dated 27-03-2018.

10. As discussed supra that one of the appellants namely Ashiq Hussain, who as per investigation of the case opened fire on the victim Akbar Khan, the victim out rightly stated that he was unable to identify the assailant. FIR was lodged by PW-3 Kumail, which he lodged after meeting the complainant and no one is mentioned in the FIR as an accused. The evidence brought on record by the prosecution against the appellants is their confessional statements (under section 21-H), A.T.A., 1997 and the preparation of site plan in presence of PW-5 Ghaib Ali Shah.

11. As stated by I.O. of the case that one of the appellant Ashiq Husain disclosed about the commission of offence and he also disclosed about the involvement of co-accused in the instant case. Ashiq Hussain, was arrested on 03-08-2018, while remaining two appellants were arrested on 04-08-2018. Accused Ashiq Hussain has identified the place of occurrence on 03-08-2018, while two appellants identified the place of occurrence on 09-08-2018. Site plan of the occurrence was prepared by the I.O. on his first visit which has been exhibited in the trial Court as Ex.PW-6/B. The second site plan was prepared on the pointation of appellant Ashiq Hussain, which was exhibited in the trial Court as Ex.PW-5/A, third site plan was prepared on the pointation of appellant Adam alias Azam Kalia and Sadaqat Ali, which was exhibited in the trial Court as Ex.PW-5/B. The comparison of the initial site plan Ex.PW-6/B, Ex.PW-5/A and Ex.PW-5/B shows that there was no material difference and no fresh information, which could be termed as discovery of "fresh facts" have been brought on record. There is another legal defect in preparation of site plan. PW-5 Syed Ghaib Ali Shah is basically a "Girdawar" of BPS-09, how he can be termed as an "Executive Magistrate" and why he was chosen when a lot numbers of other 1st Class Magistrates were available. The association of Magistrate during investigation is unwarranted and uncalled for. This Court in the judgment titled Zakir Hussain v. The State (reported in 2017 PCr.LJ 757), have held as under:- "Although in the present case the unwanted association of Magistrate did not have a bearing either on the case of the prosecution or that of the defence, yet we fear that this practice will become the order of the day if not depreciated, the amalgamation of those powers and duties which have been kept separate by the Legislature if intermingled will have devastating implication on the system of fair administration of justice, the frequent association of Executive Magistrate is not legal requirement and the police should improve her professional skills rather than seeking shelter under the umbrella of an Executive Magistrate. Here it is further clarified that any proceeding conducted by the second class Magistrate is not admissible in evidence even otherwise. The I.O. of the cases should use their professional skills to unearth the crime rather seeking calling and associating executive Magistrate in the proceedings. The Executive Magistrate so deputed should also avoid to execute their authority, when law does not allow them. When the site plan of occurrence exhibited as Ex.PW.5/A was already prepared and site plan Exh.PW.5/B is similar in detail, then its preparation in presence of Magistrate is on altogether unwarranted exercise good for nothing except to raise volume of the file and increase the number of prosecution witnesses." Likewise it was also held in 1999 PCr.LJ 445 as under:- "Panel Code (XLV of 1860)

Ss. 324/353

West Pakistan Arms Ordinance (XX of 1965), S. 13

Constitution of Pakistan (1973), Art. 199

Constitutional petition

Quashing of FIRs.

Police, right from the beginning, had acted with mala fides

One FIR had been registered initially without territorial jurisdiction

Police official concerned had joined a Magistrate 1st Class and two SHOs of different police stations with their subordinates with him who were not competent to have so joined for investigation

Subsequent proceedings after registration of the initial FIR, which had already been cancelled for want of territorial jurisdiction were without authority and without jurisdiction

Constitutional petition having been filed before the completion of investigation, submission of challan, in each case could not debar High Court to dispose of the same finally on merits, especially when it was a common practice with the police to immediately submit the challan of a case wherein constitutional petition was filed for quashment of FIR

Impugned FIRs were quashed accordingly."

12. The second piece of evidence relied upon by the prosecution is the confessional statements of the accused recorded by PW-07 IG Wasal Khan and exhibited in trial Court as Ex.PW-7/A, Ex.PW-7/B and Ex.PW-7/C. These confessional statements of the accused, when recorded by a Police Officer are always treated as a suspected piece of evidence. Even otherwise these confessional statements are conditional and the Court may consider, the evidentially value of the statements in the light of other available evidence of the prosecution. It has been held in 2006 PCr.LJ 1671. "(a) Anti-Terrorism Act (XXV of 1997)

Ss. 7(b) & 21-H

Explosive Substances Act (VI of 1908), Ss. 3, 4 & 5

Criminal Procedure Code (V of 1898), S. 164

Qanun-e-Shahadat (10 of 1984), Art. 40

Constitution of Pakistan (1973), Arts. 13(b) & 25

Appreciation of evidence

Confessional statements recorded by Police Officer under S. 21-H of Anti-Terrorism Act, 1997 were repugnant to Arts. 13(b) & 25 of the Constitution

Features of accused not described in FIR

Delay in conducting identification parade

Effect- --Complainant Police Officer on the basis of Marasla, registered FIR against three unknown accused persons regarding a bomb laying on railway track which went off when police officials removed bomb there from causing injuries to Police officials

Accused/Appellants were later on arrested as suspects and identified by police constable as accused who had planted bomb on railway track-Accused allegedly recorded their confessional statements under S. 164, Cr.P.C. before District Police Officer as to commission of offence

Trial Court convicted and sentenced accused to imprisonment for life

Validity-- Identification parade was held thirteen days after arrest of accused and no explanation was offered for delay in conducting identification parade

Such delay in conducting identification parade was fatal to prosecution case

Prosecution witness, who allegedly indentified accused persons, did not support prosecution and was declared hostile

Neither in Marasla nor in FIR it was mentioned that there were three accused persons who had planted the bomb

Record did not show that accused persons were known to witness who identified accused or accused were identified on glimpse

Description and features of accused were not provided in Marasla of FIR

Piece of evidence used against accused that they led to discovery of place of occurrence did not amount discovery of new facts as place of occurrence was already in knowledge of accused

Discovery of place of occurrence on alleged pointation of accused was not in line with provision of Art. 40 of Qanun-e-Shahadat, 1984

Section 21-H of Anti-Terrorism Act 1997 contemplated that circumstances in which confession of accused were recorded by Police Officer were also to be explained

Police Officer failed to point out special circumstances which compelled him to record statements of accused under S. 164, Cr.P.C. himself instead of sending accused to Judicial Magistrate

Section 21-H of Anti-Terrorism Act 1997 was repugnant to Arts. 13(b) & 25 of the Constitution because no person accused of an offence could be compelled to be witness against himself

Admissibility of confessional statements recorded under S. 21-H of Anti-Terrorism Act 1997 was open to criticism

Voluntariness of confessional statement of accused recorded by Police Officer after lapse of 14 days in police custody was doubtful

Statements of accused recorded under S. 164, Cr.P.C. by Police Officer was not worth credence

Disclosure memo and identification parade having been discarded, there was no other circumstantial and direct evidence left against accused to involve them in commission of offence

Accused were acquitted of the charge

Appeal was allowed." "(b) Anti-Terrorism Act (XXV of 1997)

S. 21-H

Confessional Statements recorded by Police Officer Question of credibility and voluntariness of such statements

Scope-- If confessional statement, recorded by Police Officer, was voluntarily made by accused then question would arise as to why accused was not produced before Judicial Magistrate

Confessional statements recorded by Police Officer though may be above board and transparent but fact would remain to be explained as to what was unusual and extraordinary which compelled the Police Officer to record statement himself instead of Judicial Magistrate

Accused when produced by one Police Officer before another Police Officer he could neither feel free nor think that he was in safe hands

For accused all Police Officers, irrespective of their ranks, were chips of same block

Decision about admissibility of confessional statements under S. 21-H of Anti-Terrorism Act, 1997 was left to discretion of Court and before relying upon such statements, Court was to satisfy itself about the credibility of such statements

Admissible evidence did not necessarily mean that it was credible as well. "

13. We look all around but could not find a single piece of evidence, which may persuade us to maintain conviction of the appellants handed down by the learned Judge Anti-Terrorism Court No. 1 Gilgit. Resultantly the Criminal Appeal No. 14/2018 is allowed. The conviction recorded by the learned trial Court is set aside. The appellants are present in the Court on bail. Their sureties are discharged and bail bonds stand cancelled. JK/108/GB Appeal allowed.