MALIK HAQ NAWAZ, J.---Appellant Ashiq Hussain Changezi has preferred this appeal against his conviction and sentence recorded by Anti-Terrorism Court-1, Gilgit. The charge against him that on 25.5.2009 at 23:45 hours he along with his co-accused (since acquitted) Muhammad Jaffar threw a desi made grenade on the roof of one contractor Afsar Jan residing in old polo ground, Gilgit. The FIR was registered on the murasala of SIP Fida Hussain Jaffari (PW-5) and the section 3/4 Explosive Substance Act, 1908 and sections 6/7 of Anti-Terrorism Act, 1997 were imposed. The learned trial Court by its judgment dated 7.12.2013 convicted the appellant and awarded the sentences of life imprisonment under section 3 of Explosive Substances Act, 1908 while co-accused Muhammad Jaffar was acquitted from the charges.
2. The appellant not contended with the verdict of the trial Court filed an appeal under section 25 of Anti-Terrorism Act, 1997, which is now before us for hearing while the State also filed a counter appeal against acquittal of co-accused Muhammad Jaffar, both the appeals are being disposed of by this single judgment. The learned Counsel for the appellant raised many fold arguments to substantiate his submissions that in fact there is not a single piece of evidence available on the file to connect the appellant with the alleged offence. He submits that recoveries are fake and planted and not a single independent witness has been cited as a PW in the instant case and there is no explanation from the prosecution regarding violation of provisions of section 103, Cr.P.C. Further per learned counsel, the site plan rather rendering support to prosecution case goes against the story tried to be painted by the prosecution.
3. The learned counsel states that the appellant as per prosecution own record was arrested on 09-08-2011 and was also produced for physical remand before the Court on the same day as per the remand form available with the prosecution but on the other hand the I.O. Of the case requested A.C. Gilgit to depute a Magistrate as the appellant wanted to point out the place of occurrence and this request was made on 08.08.2011, which makes whole of the prosecution case doubtful and the appellant is entitled for acquittal.
4. Malik Sherbaz, the learned Dy. A.G. Resisted the appeal and vehemently argued that there are many pieces of circumstantial evidence, which if read cumulatively connect the appellant with commission of. Offence and the judgment handed down by the trial Court, warrants no indulgence from this Court and prays that the conviction awarded by the trial Court be maintained in the larger interelt of justice.
5. The case in hand was registered vide FIR No, 145/2009 dated 26.5.2009 in police station City Gilgit against some unknown culprits. As per statement of PW-8 (available at page-54) of paper book the culprits present appellant and acquitted accused Muhammad Jaffar came to surface as an accused during investigation of FIRs Nos. 215/10, 226/10 and 60/11 whereby present appellant not only confessed his guilt but also disclosed the name of his accomplice Muhammad Jaffar. The 1.0.
As per prosecution's own story was so extra active and vigilant that one day before obtaining physical remand of appellant on 9.8.2011, requested SDM Gilgit to depute a Magistrate as accused was willing to point out the place of occurrence and this request was made on 8.8.11. The accused pointed out the place of occurrence and a site plan Exh. PW1/B of pointation was prepared by the I.O. And Gaib Ali Shah Magistrate 2nd Class who was examined as PW-1 was the Magistrate supervising the pointation. From the contents of the site plan it transpires that it does not disclose discovery of any fresh facts exclusively in the knowledge of the appellant and does come under the ambit of Article 40 of Qanun-e-Shahadat as the site plan of the occurrence was already prepared by PW-5, ASI Fida Hussain Jaffary on 25.5.2009 and has been exhibited as PW-5/B. Even otherwise site plan is not a substantive piece of evidence and it is only prepared to explain the ground realities noted down after the occurrence and another advantage of the site plan is that the Court may examine the site plan to know, how the case of the prosecution was set down soon after the occurrence. The appellant cannot be convicted merely on the basis of site plan, which is alleged to have been prepared on his pointation, when there is no other corroboratory or confirmatory evidence on record. From the place of occurrence one piece of local made grenade was taken into possession vide Exh. PW-5/A but as reveals from the statement of PW-5, the recovered articles were not sealed at the spot nor these were sent to expert for expert opinion. These articles were taken into possession on 25.5.2009 as reflected in Exh. PW-5/A and per statement of PW the occurrence took place on 26.5.2009. We observed with concern that there is cutting on the date of occurrence on FIR and initially date/time of occurrence was written 25/5/2009, which was later on over written as 26.5.2009 and on this crucial point, the PW-5 was not re-examined by the learned prosecutor whether the occurrence took place on 25/5/2009 or on 26/5/2009, and strangely at the time of framing of charge the date of occurrence was shown 25.5.2009. This is a material contradiction and when such a material contradiction appears on the surface of a criminal case, the accused is blessed with its results and not the prosecution. This single circumstance, which creates an inherent doubt in the prosecution case goes to very root of the prosecution story, would be sufficient for extension of benefit of doubt to the accused, as it has created such a big dent beyond the capacity of prosecution to repair it.
6. In the case in hand the trial Court in para-13 of the impugned judgment has relied on three pieces of evidence:-
(1) Circumstantial evidence.
(2) Confessional statement of accused.
(3) Extra judicial confession.
(i) The evidence of the appellant's pointing out the place of occurrence is inadmissible in evidence as no fresh facts were discovered in consequence of the information received from the accused.
For the purpose of making information received from an accused in police custody under Article 40 of Qanun-eShahadat 1984, admissible, discovery of fresh and relevant facts is a mandatory and qualifying requirement but when place of occurrence and its details were already known to everybody then prosecution cannot claim that the pointation of place of occurrence by the appellant be considered as a piece of evidence against the accused/appellant.
(ii) Confessional statement of the accused under section 2I-H is also defective piece of evidence as it does not fulfill the requirement of a confession. That statement of an accused under section 21-H is to be adjudged on two fold parameters first its admissibility and second its voluntariness.
We wanted to thoroughly discuss the above two aspects of confessions recorded under section 21- H but have decided to leave this crucial issue to be resolved at another apropriate time. At present, there is no other evidence against the appellant except 21-H, which cannot and should not be made a base for conviction, when corroboratory evidence is lacking.
(iii) The learned trial Court has treated the pointation of place of occurrence as extra judicial confession, which approach is also out of the scope of extra judicial confession and even otherwise the extra judicial confessions requires minute scrutiny before these are relied upon by a Court of law and circumstantial evidence in criminal cases is considered a weak type of evidence, unless and until it is interlinked, interlaced and interwoven but unfortunately all these three basic ingredients are lacking in this case.
7. We found that all the pieces of evidence produced by the prosecution are mutually destructive and advance the case of appellant for acquittal rather than the case of prosecution to maintain conviction.
8. In view of above, we on being satisfied that prosecution has miserably failed to prove its case against the appellant and the trial Court had erred in convicting him without any cogent and convincing evidence, had set aside his conviction and sentence, allowed the appeal and acquitted him by a short order passed and announced on 24-03-2016 and the above are the reasons which persuaded us to come to the above conclusion.
9. The State filed a CriminF.1 Appeal No,36/2013 against the acquittal of co-accused Muhammad Jaffar, which is also dismissed, as we have acquitted the convicted accused Ashiq Hussain Changezi and no mis-reading or non reading of evidence, which is a basic requirement to upset an acquittal has been pointed out by the learned Dy. A.G.