' YAR MUHAMMAD, J.---This appeal under section 25 of the Anti-Terrorism Act is directed against the judgment dated 23-5-2012 passed by the Special Judge Anti-Terrorism Court-II Gilgit-Baltistan whereby the learned Judge has acquitted the respondents of the charges leveled against them vide FIR No, 447/2005 registered with police station, City Gilgit and for conversion of the acquittal into conviction and to award sentence of death to the respondents/accused to secure the ends of justice.
2. Shortly the background of this case as divulging from the FIR is that on 8-9-2005 at about 20,00 hours complainant Rehbar Ali along with an application (Exh.PW-3/A) appeared before S.H.O. Of the Police Station and got recorded the FIR to the effect that on the date at about 7.30 pm his brother Ramazan Ali Danish boarding on his own vehicle bearing Registration No, PSB191 while going to his home situated at Nagral stopped at a vegetable shop situated in front of Makka Market for purchasing fruit that in the meantime accused Manzoor, Tariq sons of Turab, Mir son of.
Ismail, Akhun Rathore, Attiq residents of Jagtole and ibadat Khan son of Innayat Khan resident of old Polo ground who were already ambushed there started firing at Ramazan Ali Danish resulting in his sustaining bullet injuries. Victim Danish was shifted to DHQ Hospital in injured condition but subsequently he succumbed to the injuries in the hospital. It has further stated in the FIR that Molana Khalil Ahmad, Molana Shahab, Yaqoob Ali, Mirnawaz Advocate, Sultan Golden, Molvi Ishfaq were there behind the murder which was the dilemma of Sectarian.
3. After registration of the case, the I.O. Carried out the investigation but not in accordance with the line provided by the complainant vide his report in the shape of FIR and after lapse of more than 5 years the I.O. Arrested the present respondents/accused and challan was accordingly filed against them in the court for trial. After completion a full dress trial, the learned special Judge acquitted the respondents/accused of the charges through his Judgment dated 25-5-2012. Having been aggrieved and dis-satisfied with the findings recorded by the learned trial Court, the State has filed this appeal for setting aside the same and then to convert the acquittal order into conviction and to award death sentence to the respondents besids imposition of heavy fine and diyat.
4. The prosecution althcugh had cited 42 PWs in the calendar of witnesses but examined 23 PWs giving up the remaining PWs.
5. We have heard the learned counsel of the parties at length and have gone through the entire record of the case with their able assistance.
6. Malik Sherbaz the learned Dy. Advocate General assisted by Mr. Amjad Hussain Advocate argued that the I.O. Although has not carried out the investigation on the line provided by the complainant in the FIR for which he was not legally bound rather he was duty bound to collect the truth and trace the actual culprits which principle has been followed in this case and accordingly the I.O.
Arrested the present respondents as accused and has connected them with the offence by collecting sufficient evidence against them. They contended that the weapon of offence has also been recovered at the pointation of accused Shakeel which was sent to Forensic Science Laboratory for test wherefrom positive report has been furnished. Autopsy report also confirms the death was caused due to bullet injury. It was argued that confessional statements of the accused/respondents recorded under section 21-H of ATA are the pieces of evidence which sufficiently have connected the respondents/accused with the offence beyond any shadow of doubt.
7. Defending the respondents/accused, Malik Haq Nawaz advocate the learned counsel drew our attention to the fact that the I.O. Released those accused persons nominated in the FIR and arrested the respondents in the case as accused purely on the alleged disclosure of one Ikramullah regarding involvement of the present accused who later on while appearing in the witness box as PW-9 did not support the prosecution story resultantly he was declared hostile. He argued that no weapon of offence has effected from the accused/respondent rather the recovery proceeding was proved to be a drama for the very reason that when the pistol was unsealed before the court during examination of the marginal witness of the recovery memo, same was found different from the one mentioned in the memo and the expert report which can be gathered from the statement of PW-13.. He argued that although the PWs have supported the recovery proceedings but when the court checked the pistol same turned out to be one different in description rather it was 163 mm and not .30 bore. He assailed that confessions of the respondents recorded before police under section 21-H could not be taken as a valid, piece of evidence for conviction because the procedure provided for recording such confessions has also not been followed by its author. Regarding pointation of the place of occurrence the learned counsel argued that same was known to everyone and the site plan was prepared prior to the pointation of the same by the accused as such cannot be equated the discovery to bring it within the ambit of Article-40 of Qanun-e-Shahadat.
8. A careful scanning of the record would reveal in this case that prosecution has relied upon the following pieces of evidence to substantiate its case:--
(1) Confessional statement.
(2) Recovery of weapon of offence.
(3) Forensic Science Laboratory Report.
(4) Site plan prepared at the pointation of the accused.
9. The instant case has been tried by the Special Judge of Anti Terrorism Court because same was registered under the special law of Anti Terrorism Act. Section 21-H of the Act authorizes a police officer not below the rank of DSP to record the statement of an accused which may be used against the accused provided that the statement was made voluntarily. The procedure for recording such statement has also been provided under the same Act. In the instant case the statement of the accused under section 21-H of the Act has been recorded by the concerned S.P.
But we have noticed that the statements does not contain the proper and clear answers given by the accused to the questions put to them which could suggest that the confessions were voluntary within the contemplation of Section 21-H of ATA. Since the statements have not been properly recorded as such same have lost its effectiveness for becoming a piece of evidence. Apart from the above, the superior Courts of the Country have been held that the statement recorded under section 21-H of the Act could not be used as exclusive piece of evidence upon which conviction could be based and that if the statement was not corroborated by a strong piece of evidence. It has time and again held that the confessional statements recorded under section 21-H of ATA could by itself not constitute material evidence on which a criminal could be placed for conviction.
Confessional statement recorded by the SP would be treated just a piece of evidence which would be read along with the other material on record. These statements of the accused admittedly have been recorded at Gilgit which is the capital of this region where services of the Judicial Magistrate are available throughout. The SP concerned, therefore, was required to approach the Judicial Magistrate along with the accused persons provided that the accused had volunteered to make the confessional statement. Despite availability of the facility of the Judicial Magistrate, if such statement is being recorded by the Police officer would be considered based on mala fide and against the basic rights of the accused. Section 21-H of ATA admittedly is repugnant to Articles 13(b) and 25 of the Constitution of Pakistan vide which no person is compelled to be witness against himself.
10. The prosecution has claimed that a .30 bore pistol had been recovered on 20-11-2010 at the pointation of the accused and this version has substantiated by PW-13 saying that the pistol shown to him was the same recovered on the pointation of the accused but when the court examined it it turned out to be a different one in description rather it was 163 mm and not 30 bore making doubtful the recovery proceedings as a whole. It is the fact on record that two empties of .30 bore pistol were recovered on 20-11-2010 but the empties have remitted to the expert for opinion together with crime weapon and the laboratory expert have received both the articles together on 24-3-2011. Possibility is there that during this period the police itself had fired the empties from the pistol otherwise law suggests that the police should send the empties forthwith after its recovery and thereafter the .30 bore pistol to avoid doubts. Thus, for this reason too the recovery of pistol could not be treated as corroborative piece of evidence.
11. So far the site plan prepared at the pointation of the accused is concerned, same could not be termed to be in pursuance of Article-40 of Qanun-e-Shahadat because the site of occurrence was already known to the I.O. Which was the reason that initially the I.O. Prepared the site plan on 9-9- 2005 at the pointation of eye-witnesses. Article-40 of Qanune-Shahadat is an exception to the rule enacted in Articles-38 and 39 and in order to bring the case within the ambit of Article-40 the prosecution must establish that firstly, the information conveyed by the accused actually led to the recovery of same fact and secondly, the fact was unknown to the police and it was for the first time derived from the accused. Just after the occurrence the police has visited the spot and on the pointation of shopkeeper as eye-witness, the I.O. Prepared the site plan as such the conditions laid under Article-40 does not attract in the case.
12. The each and every piece of evidence collected by the 1.0. In this case to connect the accused with the offence is suffering with doubts and infirmities, thus no conviction could be based upon.
13. Consequently, the appeal is dismissed as meritless. File.