' MUHAMMAD ALAM, J.-- Through this Criminal Appeal, convicts/ appellants have challenged judgment/order dated 2-7-2012, passed by the learned Judge Anti-Terrorism Court No,II, Gilgit, whereby, the learned trial Court has convicted and sentenced convicts/appellants as under:- "In the wake of the above discussion, I hold that the prosecution has proved the case beyond any reasonable doubt against accused persons namely Farooq Ahmed, Binyameen, Mir Baz, Arshad Aman, Faizan ul Haq, Shakeel Ahmed, Mansoor and Amjad Wali.
' Hence I hereby convict the accused persons Farooq Ahmed, Binyameen and Faizan ul Haq under section 302(b)/34 read with section 7(a) and 21-L ATA and sentence to death on three counts each. They be hanged by neck till they are dead. They will further undergo five years' R.I.
Each under section 21-L ATA and shall also pay compensation under section 544-A, Cr.P.C. To the tune of Rs,300,000 each which shall be paid to the L.Rs, of the deceased persons in equal proportion, if realized. In default of paym ent of fine, they shall undergo imprisonment for a further period of six months. All the sentences shall run concurrently.
' Accused persons namely Mir Baz and Arshad Aman are hereby convicted under section 302(b)
P.P.C./sentence 7(a) ATA read with section 109 P. P.C. And sentenced to death on three counts.
They be hanged by neck till they are dead. A fine of Rs,300,000 each is also imposed under section 544-A Cr.P.C. Fine if realized, shall be paid to the legal heirs of deceased persons, in equal proportions. In default of paym ent of fine, they will further undergo six months. All the sentences shall run concurrently.
' Benefit of section 382-B, Cr.P.C. Is also extended to them.
' Accused Shakeel Ahmed is convicted and sentenced under section 109/302, P.P.C. And section 21-L ATA for life imprisonment on three counts and five years' R.I., respectively. A fine of Rs,50,000 is also imposed under section 544-A, Cr.P.C. Fine if realized shall be paid to the L.Rs, of the deceased persons in equal proportions. In default of payment, of fine, he , shall undergo six months. Benefit of section 382-B, Cr.P.C. Is also extended to him.
' Accused persons namely Mansoor and Amjad Wali are hereby convicted under section 212, P. P.
C. Read with section 21-J ATA and sentenced to five (5) years' R.I. Each. They shall also pay a fine to the tune of Rs,50,000 each under section 544-A, Cr.P.C. And in default thereof to undergo further six (6) months.. Fine, if realized shall be paid to the L.Rs, of the deceased persons, in equal proportion. Benefit of section 382-B is also extended to them."
2. Brief background of prosecution story of occurrence is that the then I.P. Mr. Noor Alam, S.H.O.
Police Station City Gilgit, received wireless message of firing and an explosion somewhere in link road Park Hotel Kashrote and the said proceeded towards the place of occurrence along with a police team. On the scene of occurrence near Girls High School Kashrote, the said S.H.O. Found a vehicle, GLT-C-4, parked in front of a bakery/shop. On entering the bakery/ shop, the said S.H.O.
Found two persons lying on the ground in injured condition while one dead in the rear seat of vehicle. On interrogation, it was disclosed that Mr. Asad Zaidi, the then Deputy Speaker Legislative Assembly of G.B., alongwith one Shahid son of Sabeel, was on his way on the government vehicle on the said road when some unknown persons opened indiscriminate firing on the vehicle. As a result of the said firing, the said Mr. Asad Zaidi and his driver were seriously injured while Mr. Shahid Hussain died at the spot. Police removed the dead body and the injured persons to hospital where the injured persons also succumbed to their injuries.
3. Police chalked F.I.R. And after completion of investigation, submitted challan/charge-sheet for trial of the convicts/ appellants. The learned trial Court charge-sheeted convicts/appellants, wherein convicts/appellants did not plead guilty, and after completing trial, the learned trial Court passed the impugned judgment/order. Hence this appeal.
4. From plain perusal of F.I.R., it is evident that the F.I.R. Has been lodged promptly and the same does not contain any name of assailants responsible for the occurrence. Police cited 54 (fifty four)
P.Ws. In the challan/charge-sheet abandoned 16 (sixteen) while examined 38 (thirty eight). Out of the 38 examined P.Ws. 6 (six) P.Ws. Turned hostile. It is also not disputed that '9 (nine) of the examined P.Ws. Remained in police custody as suspects of the occurrence. The said 9 P.Ws. Are:--
(1) P.W.1, Mr. Nazaqat.
(2) P.W.2, Aslam Pervaiz.
(i)P.W.3, Sharif Ahmed.
(ii)P.W.4, Hamidullah.
(iii) P.W.7, Mr. Waseem.
(iv)P.W.9, Rizwanullah.
(v) P.W.10, Sajid Mir.
(vi) P.W.18,-Shabbir Ahmed.
(vi)P.W.21 Farooq.
' Out of the examined P.Ws., 16 (sixteen) are civilians, while 22 (twenty two) are government officials.
It is also not disputed that in all, 10 (ten) accused were tried for the occurrence, 9 (nine) faced the trial while the tenth (10) tried in absentia. Mr. Johar Usman and Mr. Manzoor Alam were acquitted.
5. Learned trial Court has relied on the prosecution evidence. On page 15 of the impugned judgment/order, learned trial court has remarked about the extra judicial confession of the accused persons and has discussed the evidentiary value of extra judicial confession. So, the first question for determination for us is also to take up the extra judicial confession for discussion. In this connection, the important question is that what kind of extra-judicial confession of the convicts/appellants is being termed as extra-judicial confession by the learned trial Court. The impugned judgment/order does not refer to extra judicial confession of the convicts/ appellants, but in pages 15-23 of the impugned judgment/order, the learned trial Court has very confusedly used the word extra judicial confession and confession. The learned trial Court has used the, word extra judicial confession as well as confession for the statements of the convicts/appellants recorded under section 21(h) of the Anti-Terrorism Act, 1997, hereunder referred as ATA. We find mention of extra-judicial confession of one Hamidullah (P.W.4), not among the convicts/appellants on page 23 of the impugned judgment/order, but the statement of the witness, i,e,, P.W.4 cannot be termed as extra judicial confession. As to the said P.W. (P.W.4), learned trial Court has himself observed that the said P.W. Resiled from his statement in cross examination. We have gone through the statement of the said P.W. Who has not uttered a single word in proof of any part of the prosecution story of occurrence, even in examination-in-chief part of his statement. In cross- examination part of his statement, P.W.32, Investigation Officer, I.P. Mr. Noor Alam has stated that:- "It is correct that neither any marks of used grenade were found on the walls of the bakery or on the vehicle of the deceased. I have not sent the lever/pin of the grenade for Expert opinion. I have no knowledge about the types of grenade. From the lever/pin, the identity of the kind of grenade could not be established. It is correct that I have not recorded the statement of any Moharrir of Investigation Wing, about the handing over of incriminating articles mentioned in various recovery memos of 20-4-2009. Accused Faizan-ul-Haq was arrested on 3-5-2010 from Rawalpindi by me and one DSP. Accused Faizan-ul-Haq was arrested from Railway Station Islamabad. I have not obtained any transit remand from any court at Rawalpindi. We have not reported about our arrival in the nearest Police Station of Islamabad. DSP Faisal was head of the team."
' In cross-examination part of his statement, Investigation Officer, DSP Fida Ali (P.W.35), has stated that:-- "As per my investigation accused Amjad Wali and one Nazaqat took the injured to Civil Hospital Kashrote, for treatment and then shifted him to Sonikot. The car of Nazaqat was used in the commission of offence and was taken into possession by police. The car was being driven by Nazaqat. The said Nazaqat was arrested, interrogated and was released under section 169 Cr.P.C. I have not recorded the statement of any of the employee of Civil City Hospital Kashrote Gilgit, regarding the fact that any injured person was brought in the hospital for the purpose of stitching. I have not taken into my possession any admit outdoor slip or patient card or register to substantiate the fact of the treatment of any injured person, on the day of occurrence. I have not recorded the statement of any Gate-keeper or any Medical Officer, on duty to the effect that any injured was treated in the City Hospital Kashrote Gilgit, on the day of occurrence. I have not carried out the pointation of the room of the hospital by Hameedullah, where the injured was given treatment. It is correct that said Hameedullah remained under arrest and then was released under section 169, Cr.P.C. Both the P.Ws. Namely Hameedullah and Nazaqat, remained under arrest and subsequently they were cited as P.W., in the instant case Both the weapons of offence were recovered out simultaneously. Exh.P.W.12/A was written by me. It is in my own hand-writing.
When the accused entered into his house, his handcuffs were removed. Court Note (At this juncture, the counsel for the accused asked from the witness whether he could lead the Court to the place/house where recovery was effected into. The witness was uncomfortable and replied that this is not a relevant question). The time of occurrence of the recoveries of unlicenced weapons vide F.I.R. No,146/2009 has been shown as 07:00 hrs. I do not remember the exact date on which the recovered weapons were sent to Forensic Science Laboratory. No statement of any Moharrir has been recorded in respect of the custody of recovered weapons of offence from the date of recovery and it's dispatch to the Expert. I have not recorded the statement of any-police official, who took the incriminating articles to the Expert nor he has been cited as a witness in the final report, submitted under section 173, Cr.P.C........ I have not sent the lever or pin of the grenade for Expert opinion. It is incorrect to suggest that the incriminating weapons of offence were planted on the accused, after getting money from their relatives."
6. The above reproduced parts of the statements of the P.Ws., who are very important witnesses of the prosecution shows their poorest kind of investigation. On the one hand, the prosecution story shows the explosion on the scene of occurrence as an important part of occurrence and regarding the same, the Investigation Officer has conducted very negligently by omitting not to dispatch the parts of the same explosive instrument to the Expert. This kind of conducting the investigation has rendered a very important part of prosecution evidence not proved.
7. It is also very important to note that convict/appellant Amjad Wali has been convicted for harboring the assailants but the trial Court did not discuss any evidence of any P.W. Regarding the offence of harbouring while passing the impugned judgment/order except the statement of convict/appellant recorded under section 21(h) of ATA. Likewise, we do not find any evidence against convict/appellant Mirbaz and convict/appellant Arshad Aman except their statements under section 21(h) of ATA. So, is the case of all convicts/ appellants. We have further noted that prosecution has released accused Rizwan under section 169, Cr.P.C . While the role attributed to said accused and convict/ appellant Arshad Aman is very similar. The prosecution has not only acquitted Mr. Rizwan but cited as P.W. Who when examined in the court not only turned hostile but supported the defence. Version.
8. There is no any direct or circumstantial evidence on record, connecting the convicts/appellants with the occurrence. Very astonishingly, on page 22 of the impugned judgment/order, the learned trial Court has held that:-- "The confession of accused Arshad Aman and Faizan-ul-Haq, in terms of preceding para, are proof against them and a circumstantial evidence against the rest of the accused persons."
Learned Assistant Advocate General could not convince us that there is any law in the light of which a confessional statement, extra judicial or judicial, can be accepted as circumstantial evidence or a trial court has any power to convert such a statement into circumstantial evidence.
This concept was quite new for us, so we sought particular assistance from the learned Assistant Advocate-General who could not convince us justifying the said concept or opinion of the learned trial Court.
9. The only basis of conviction of the convicts/appellants is confessional statement of the convicts/appellants recorded under section 21(h) of ATA. It is very astonishing that the trial Court has on the one hand accepted the statement of convicts/appeIlants recorded under section 21 (h) of ATA as direct evidence or extra judicial confession but at the same time has acquitted accused Johar Usman, although his statement was also recorded under section 21(h) of ATA. Statements of convicts/appellants recorded under section 21(h) of ATA is not a admissible in evidence in the light of case-law referred in:--
(1) PLD 1998 SC page 1445-1462.
(2) SAC, Criminal Appeal No,10/12, page 17.
Once statements of the convicts/appellants recorded under section 21(h) of ATA are excluded from accepting as evidence against the convicts/appellants, there is no other independent evidence connecting convicts/appellants for the occurrence. None of the P. Ws. Is stating giving any role to the convicts/appellants in commission of the occurrence. So rest of the pieces of prosecution evidence are not worth-consideration as the said pieces could hardly corroborate the circumstantial or direct evidence.
10. In the case in hand, the investigation is not only poor, but very patently show the incompetency and foul-play on the part of police officers who conducted investigation of the case. It is not disputed that Judicial Magistrates were sitting in their seats in Konodas Gilgit when police, who were conducting investigation of the case, instead of taking convicts/appellants to the said Magistrates, took them to police officers for getting recorded their statements under section 21(h) of ATA. In our opinion, in such a circumstance, the Investigation Officers of police were duty bound to take the convicts/appellants to such Magistrates instead of police officers. Moreover, it is also not disputed that police has joined Magistrates in the proceedings of investigation which the police concerned knew very well to be an act against the mandatory provisions of law. Mr. Muhammad Ibrahim (P.W.24) is a witness to Exh.P.W.24/A, a site plan. Mr. Firdos Ali (P.W.25) is a Magistrate to Exh-P.W.25/A, a site plan. Mr. Momin Jan (P.W.31) is a Magistrate who has conducted search of a house. Mr. Gaib Ali Shah (P.W.37) is a Magistrate in whose presence Exh.P.W.36/A was prepared vide which accused Farooq Ahmed identified the weapon of offence and the place of occurrence.
Superior courts have consistently discouraged and deprecated joining of Magistrates in investigation proceedings. We also feel this conduct of the police injurious and damaging to the prosecution case.
11.. In his statement, P.W.35 has stated that he did not get the identification of 22 gore rifle recovered from accused Mansoor and he did not send the lever or pin of the grenade recovered by police to any Expert for Expert opinion. All these admissions of the Investigation Officer are very strange and the acts admittedly omitted are damaging the prosecution case.
12. In the sequel of above discussion, we hold that statements of convicts/ appellants recorded under section 21(h) of ATA are not admissible in evidence, neither as judicial confession nor as extra judicial confession. So, in the case in hand, There is no direct or circumstantial evidence in proof of guilt of the convicts/appellants. We further hold that rest of the pieces of evidence are corroborative pieces of evidence and are not worth-consideration, firstly, because once we did not accept the statements of convicts/appellants recorded under section 21(h) of ATA; there remains no evidence to be corroborated through the said pieces of evidence. Secondly, because of poorest kind of conducting of investigation by police, these pieces of evidence have become weakest and doubtful kind of evidence, therefore, also are not worth-consideration, and thirdly, because these pieces of evidence do not independently show any connection of convicts/appellants with the occurrence. We, therefore accept this appeal throughout and acquit the convicts/appellants from the case. We direct for immediate release of convicts/appellants from the custody if not required in any other case. We direct for payment of Rs,300,000 (Three Lac), as compensation, to the legal heirs of each of the deceased, by the respondent/State. Copies of this judgment/order be sent to the Inspector General of Police (IGP) GilgitBaltistan for taking disciplinary action against the police officers who conducted investigation of the case, and the Administrative Judge Anti-Terrorism Court Gilgit-Baltistan to try said police officers, under the relevant provisions of law for poorly conducting investigation of the case. This file be consigned to record.