1. RAJA JALAL-UD-DIN, C J.---This Criminal Appeal has been preferred under section 410, Cr.P.C. Read with section 25 of the A.T.A. Against the impugned judgment/ capital sentence dated 31-8-2009 passed by the learned Administrative Judge Anti-Terrorism Court, whereby the appellant has been convicted under section 302(b), P.P.C. Read with section 7(a) of Anti-Terrorism Act, 1997, awarded punishment for death sentence and fine or Rs 3, 00,000 as compensation under section 544-A, Cr.P.C. To the L.Rs. Of deceased. In default of payment of compensation by the convict/appellant he shall further undergo rigorous imprisonment for two years and appellant has also been convicted under section 13(D) Arms Ordinance 1965 and sentenced to R.I. For seven years.
2. The background of the case pertains to the F.I.R. Nos. 163 of 2006 and 97 of 2006 dated 24-6- 2006/1-8-2006 registered at Police Station City Gilgit, wherein it is disclosed that one Mr, Jamsheed Khan serving as Judge Anti-Terrorism Court Gilgit has received pistol shot injuries and died at hospital at Gilgit. After investigation the challan of the case was put up against the convict/appellant Naveed Hussain under sections 302/109, P.P.C., 6/7 ATA and 13 A.O. After adducing 28 witnesses the Court came to the conclusion that the convict/appellant namely Naveed Hussain be sentenced to capital punishment under section 302(b), P.P.C. Read with section 7(a) of ATA, 1997 and 13(D) Arms Ordinance 1965 and acquitted the co-accused Sultan Ali from all charges levelled against him by giving benefit of doubt due to insufficient evidence provided by the prosecution.
3. During the course of arguments counsel for the convict/appellant pleaded that the convict/appellant is not directly charged for the commission of offences and secondly that there is no first hand information regarding the involvement of the convict/appellant in question for the commission of the offence. That the statements of the eye-witnesses on file are planted and procured after a lapse of considerable time after the occurrence. That their statements cannot be taken into consideration recorded at such a belated stage. That the recovery of the weapon of offence from the convict/appellant has got its major defects and its evidentiary value is of no accord as the witnesses cited are not of the locality and do not fulfil the conditions laid down by section 103, Cr.P.C. That the recovered empty shells from the spot of occurrence have been procured and planted. That the positive report of Forensic Laboratory has also got its defects based on the overdue time taken for sending the material for the test and the long period where the recovered articles were in the possession of the investigating authority, therefore nullifying the evidentiary value of the same. That the statements of the witnesses recorded under sections 161, Cr.P.C. And 164, Cr.P.C. Have been procured under duress, torture and pressure has been applied and as such it cannot be termed as voluntary statements. That the confessional statement procured from the convict/appellant under section 21-H of the Anti-Terrorism Act is not appraised and upheld by the superior Courts and the. Chief Court in various cases, hence discouraged and not relied upon on any statement recorded in the manner wherein the police officials have recorded confessions in serious cases. That the motive put forward by the prosecution is also very flimsy and not proved against the convict/appellant as the convict/appellant during the days of occurrence, and at the specific time was behind bars in the Sub Jail at Jutial, convicted for an offence by the deceased Judge, Mr. Jamsheed Khan. That the absence of the convict/ appellant from his place of detention is not proved by any official record and neither has he been reported missing by any jail authorities from the lock up as such the alibi taken by the convict/appellant has not been rebutted and no adverse evidence of the same has been placed on record. Counsel for the convict/appellant mainly relied upon the following case laws 2006 PCr.LJ 1671 (Quetta), 2006 PCr.LJ 1693 (N.A. Chief Court), 1998 PCr.LJ 1236, 1998 PCr.LJ 2104, 1983 PCr.LJ 1398, 1983 PCr.LJ 1113, 2010 GBLR 249, 1982 PCr.LJ 720, 1982 PCr.LJ 724 (Lahore), 1982 PCr.LJ 635 (Lahore), 1982 PCr.LJ 642 (Lahore), PLD 1989 SC 20, 1982 PCr.LJ 635 (Lahore), PLD 1963 (W.P.) Peshawar 161, 1996 PCr.LJ 528 (Karachi), 2010 GBLR 256 (S.A.C.)
4. The- Deputy Advocate-General representing the State pleads that the nature of murder of the deceased Judge Mr. Jamsheed Khan is gruesome in nature and the act itself is very brutal and condemnable. The deceased by nature was a very fair man of his profession who belonged to District Hazara. He had no personal enmity in the area and had no axe to grind. He was performing his duties diligently and the murder of such a person is the result of a sick mind who took the law in his own hands for no adequate reason. The convict/appellant had previously been sentenced by the deceased in an offence which later on the remaining co-accused were acquitted from the various Courts as well as the apex Court of Gilgit-Baltistan. The convict/appellant was being held at the Sub-Jail Jutial where the acquitted accused namely Sultan Ali was the jail head warder. That both the convict and warder are co-villagers and also related to each others. That the said warder namely Sultan Ali used to give the concession of allowing the convict/appellant to go out and enjoy himself at the time of his duty. The said warder was also arrested in this connection and later on he is acquitted by the trial Court. That after the commission of offence, the convict/appellant tried to flee from the place of occurrence with the weapon of offence in his hand but was identified and apprehended by certain witnesses cited in the case. That the convict/appellant got away from the clutches of the witnesses and entered into the Jail premises and disappeared from the scene of occurrence. That as the convict/appellant did not belong to the locality and is a resident of Bargo village which is quite a distance from Gilgit as such his identification immediately was not possible. That later on due to the sketches formed by the police and other sources the investigating authorities identified the convict/appellant as the culprit after which the investigating authority apprehended the convict/appellant and recovered the weapon of offence, as such the convict/appellant was subjected to an identification parade and the witnesses recognized the culprit as the assailant. That the statements of the P.Ws. Recorded under section 161, Cr.P.C. Are all recorded well within time and the statements recorded under section 164, Cr.P.C. Were recorded without any duress and influence. That the retracted statements can be relied upon as the statements recorded under section 164, Cr.P.C. Do not suffer from any infirmity. That the retraction of the statements of the P. Ws. Is based on the ground that they are locals of Gilgit and the deceased belonged to District Hazara. The prosecution has based its reliance upon the following case laws: 1971 SCMR 326, 1995 SCMR 1793 (S.C), PLD 1996 (SC) 305, 1997 SCMR 1000, 2001 PCr.LJ 412 (F.S.C), 2001 MLD 807 (Lahore), PLD 2002 (SC) 558, 2004 PCr.LJ 1697 (Lahore), PLD 2006 (S.C.) 354, PLJ 2006 (S.C) 931 and 2009 SCMR 1440 (S.C.).
5. We have minutely perused the record of the case and given thought to the arguments of both the parties. We feel that the identification of the assailant immediately after. The occurrence was not possible and as such the name of the assailant did not appear in the F.I.R. In the initial stages the machinery of the government came into action and the prosecution started their investigation well within time. The two empty shells found from the scene of occurrence were recovered and the substitution of the same was not possible. The two empties were sealed in the presence of witnesses and taken into custody for onward transmission. The statements of the witnesses recorded under section 161, Cr.P.C. As well as the statements recorded by a competent Judicial Magistrate under section 164, Cr.P.C. Do not suffer from any &feet. All the possible legal formalities were completed before the recording of the statements of P.Ws. Under section 164, Cr.P.C. The large number of witnesses who have deposed against the convict/appellant under section 164, Cr.P.C.
6. Give the impression that their statements were voluntary and true. No doubt that the statements recorded under section 164, Cr.P.C. Have been resiled by the witnesses in their examination before the trial Court but in the cross-examination the witnesses have admitted certain material facts which are the contents of their statements recorded under section 164, Cr.P.C. The said portions of the statements of the witnesses are good and material. The identification parade which was conducted by a very competent Assistant Commissioner namely Mr. Momin Jan who has fulfilled all the formalities of the identification parade in the presence of witnesses who have deposed in favour of the prosecution and their statements have not been shattered by defence. The A.C. Is an impartial person and not affiliated to any sectarian groups. No doubt the P.Ws. Sohail Mustafa and Sher Khan who have been examined under section 164, Cr.P.C. By the Judicial Magistrate Mr. Mushtaq Muhammad have resiled from their statements but have not totally denied the facts of the case. Both the witnesses in their cross-examination have admitted that an identification parade has taken place and also that they had identified the convict/appellant as the individual who had run away from the scene of occurrence after the commission of offence. This admitting of the fact draws strong inferences against the contention of the convict/appellant and proves the case against him. This piece of evidence is a strong link in the commission of offence. After the amendment in section 21-H and section 6 of ATA, the relevancy of the section completely changes against the convict/appellant. Regarding the confessional statement of the convict/appellant recorded under section 21-H of ATA is no doubt a shaky piece of evidence and much reliance has not been placed on such confessional statements by this Court and in this regard many cases have been disposed of in the light of the same. After the amendment in section 21-H of ATA whereby a proviso has been added which is reproduced as under where a legislature has made it mandatory that section 21-H of ATA shall be admissible in evidence which has to be read with amended section 6 of the ATA:-- Amendment of section 21-H, Act XXVII of 1997.---In the said Act, in section 21-H, in the existing proviso, after the word "Provided" the word "further" shall be inserted and before the proviso amended as aforesaid the following new proviso shall be inserted, namely:-- "Provided that the confessional statement made before the District Police Officer or equivalent officer of security forces operating in aid of civil power in the .Military/security operational areas notified by the Government under section 4 of this Act, involving attack on the members of Armed Forces, Civil Armed Forces, Law Enforcement Agencies, Government installations, hotels or public property shall be admissible in. Evidence."
7. Amendment of section 6, Act XXVI of 1997 --- In the said Act, in section 6,--
(i) in subsection (1), in clause (c), after the word "cause" at the end, the words and comma " or intimidating and terrorizing the public, social sectors, business community and preparing or attacking the civilians, government officials, installations, security forces or law enforcement agencies," shall be added.
8. As such this Court without placing it as a sole piece of evidence sufficient for capital punishment would not be considered but it can be considered as a piece of corroborative evidence to be read with the remaining evidence on record.
9. The defence has failed to bring on record any circumstance where by it can be considered that the convict/appellant has been involved in the case due to mala fide intention other than the motive put forward by the prosecution.
10. 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 ATA 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 the 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.
11. For the above circumstances, facts and reasons, appeal fails and is hereby dismissed. The judgment/order dated 31-8-2010 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-ID Terrorism Act is confirmed accordingly. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.