YAR MUHAMMAD, J.---Naeemullah son of Rehmat Diar (appellant), Taimoor Iqbal son of Javaid Iqbal and Waseeb-ur-Rehman son of Raees Khan were tried under sections 302, 114/34, P.P.C., section 21-L and sections 6/7 of the Anti-Terrorism Act, 1997, for committing the murder of Karamat alias Papu, in an indictment Exh.PW-11/A recorded on 25-8-2012 at about 1940 hours with police station Basin on the application preferred to SHO concerned by one Sadaqat the real brother of the deceased regarding the occurrence which took place on the same day at about 1900 hour in Basin Khari at a distance of about 3 furlong from the Police Station.
2. The learned Special Judge-1 established under ATA, 1997 through his Judgment dated 30-10-2014 convicted appellant Naeemullah under section 302(b)/34, P.P.C. And sentenced him to undergo Rigorous imprisonment for life with a fine of Rs,300000/- as compensation to be paid to the LRs of the deceased as provided under section 544-A, Cr.P.C. And in default of payment of fine to undergo further imprisonment for 2 years, However, the benefit of section 382-B, Cr.P.C. Was extended to the appellant.
3. Accused Taimoor Iqbal was given the benefit of doubt and for insufficient evidence against him was acquitted by the learned trial Court.
4. Since accused Waseeb-ur-Rehman was fugitive of law as such he was tried in his abscondence after got declared him as proclaimed offender and finally convicted him under section 302(b), P.P.C. Read with section 7(a) of the ATA, 1997 and sentenced him to death with a fine of Rs, 300000/- as compensation to be paid to LRs, of the deceased and in default there of the convict/proclaimed offender shall undergo further imprisonment for 2 years.
5. Convict Naeemullah has assailed the legality and propriety of the Judgment through this appeal and we have to consider only the conviction awarded to the appellant.
6. Briefly stated the prosecution case as divulging from FIR No, 65/2012 Exh. PW-11/A are that on the day of occurrence at about evening hours deceased Karamat alias Pupu who was running a shop at Napora Basin Khari and was available in the shop while his brother/complainant was present in his house that all of sudden he heard reports of firing from the side of the shop of his brother. He rushed to the shop where he was told that his brother Karamat was taken to City Hospital, Kashrote in injured condition due to sustaining fire injuries. The complainant then went to the Hospital where he found Karamat had expired. Regarding the causes about the murder, the complaint has stated in the FIR that his family had no enmity with anyone but has alleged that murder was due to religious terrorism.
7. After recording the FIR, IP/SHO Ali Muhammad of the Police Station assumed the initial investigation and as a result thereof he forthwith visited the site of occurrence and took into possession one crime empty of .30 bore pistol and a live cartridge of same caliber and prepared memo Exh. PW-9/13, took into possession the wearing cloths of the deceased under memo Exh.
PW-8/D and thereby further investigation of the case was entrusted to IP Baba Jan (PW-10). IP Baba Jan arrested some persons on suspicion basis but released, under -- section 169, Cr.P.C. On 09-9-2012 he arrested one Waqar resident of Khari Basin and on investigation the said person involved accused Taimoor Iqbal in the offence resultantly, the police arrested the said accused and the accused disclosed before JIT that the murder was committed by the ccused/appellant Naeemullah and his some companions. On this disclosure, the 1.0. Arrested the convict/appellant who during investigation told to JIT that accused Taimoor Iqbal once had come to village Shakyoot and convinced him to go to Afghanistan for training. On this, he went to the house of one Shuaib along with convict Waseeb-ur-Rehman situated at Napura Baseen where they agreed to go Afghanistan for training purpose and then they went to the house of one Zainul Abdin situated at Khari and Zainul Abdeen told them to murder one Aqeel belonging to Shia sect. At that time Taimoor Iqbal also called there one Waqar through phone and told them to show the shop of Aqeel. Thereafter accused Waseb-ur-Rehman, Naeemullah (appellant), Waqar Ahmad and Taimoor went to the shop of the deceased. Taimoor Iqbal stood in some distance away from the shop as watcher while accused Waseeb-ur-Rehman, Naeemullah and Waqar came to the shop of the deceased and by indentifying the shop of the deceased, Waqar ran away therefrom through a street whereas the other two accused to whom Aqeel was not acquainted as such accused Waseeb-ur-Rehman fired at Karamat supposing him to be Aqeel.
8. The I.0. Took the accused to site of occurrence in presence of one Magistrate Chiragh-ud-Din. He also recorded the statements of both the -accused under section 21-H of ATA, recorded statement of PWs under section 161, Cr.P.C. And on 05-10-2012 he committed the accused to Judicial Lock-up whereas search warrant was got issued against the accused Waseeb-ur-Rehman and thereby submitted challan of the case to the Court of competent jurisdiction for trial.
9. Dr. Abidullah Medical Officer City Hospital Gilgit on 29-09-2012 has conducted postmortem on the body of the deceased. According to the opinion of the Doctor death was caused due to gun short injury. According to the medical report the probable time that has elapsed between death and the postmortem was more than 8 hours.
10. In order to prove its case, the prosecution has adduced 11 PWs. In all. AIG Wasal Khan (PW-1) on 05-10-2012 recorded the statements of accused Naeemullah and Taimoor Iqbal under section 21-H of ATA, 1997. Chirag-ud-Din Magistrate (PW-2) has accompanied the I.O. Baba Jan on 05-10-2012 when he took both the accused to scene of occurrence to prepare site plan on the pointation of the accused. This witness says that in his presence the accused persons identified the place wherefrom proclaimed offender Waseek-ur-Rehman targeted the deceased Karamat and then decamped from the place of occurrence and basing on the identification the I.O. Prepared site plan Exh. PW-2/A. Sadaqat (PW-3) has lodged the FIR Exh. PW-3/B by preferring an application Exh.PW-11/A. Dr. Abidullah Khan (P'W-4) who conducted the postmortem on the deadbody of the deceased and prepared report Exh.PW-4/A, Muhammad Khan (PW-5) who was present in his home at the relevant time when he heard reports of firing and rushed to the firing direction where he was told that Karamat deceased alias Papu had received bullet injuries. Waqar Ahmad (PW-6) was declared hostile. Saqib Hussain (PW-7) says that in his presence the police brought the accused at the site of occurrence for identification of the site and during the proceedings the accused confessed the role they played in the murder of deceased Karamat. Maqbool Ahmad (PW-8) is the witness of memos pertained to recoveries Exh. PW-8-A to Exh.8/F vide which handing taking of dead body and inquest report was prepared. Mir Bahadur Khan (PW-9) is the witness of recovery memos. Vide which the Police has taken into possession the blood of the deceased and crime empty. Baba Jan (PW-10) who has carried partial investigation of the case. IP Ali Muhammad (PW-11) was the SHO of the police station Basin and has conducted the initial investigation.
11. On the completion of the prosecution evidence, the accused were examined under section 342, Cr.P.C. By putting questions whereby the accused refuted the allegations leveled against them by the prosecution rather professed their innocence and none of them volunteered to make the statement on oath as provided under section 340(2), Cr.P.C. In disproof of the charges and the allegations.
12. We have heard the learned counsel for the parties and have gone through the entire evidence available on case file. Mr. Amjad Hussain Advocate the learned counsel for the appellant while advancing his arguments assailed that it is a case which lacks evidence of any sort required to connect the accused in any manner with the in hand murder. He argued that none has seen the occurrence committed by the appellant. He next argued that the evidence upon which the learned trial Court has based the impugned conviction got no value in the eye of law and submitted that as compared to the appellant some other persons who comparatively had played much role in the offence to that of the appellant .Either they have been acquitted by the learned trial Court or the police have avoided to implicate them in the offence and the learned trial Court has convicted the appellant on the basis of statement recorded under section 21-H of ATA holding the same as confessional statement and the alleged site plan prepared next time by the 1.0. On the pointation of the accused and submitted that both the pieces of evidence got no evidentiary value as such basing upon the evidence no conviction could be recorded. Malik Shrbaz the learned Deputy Advocate General on the other hand submitted that the appellant/accused has been convicted on the basis of credible evidence. He argued that the I.O. Has prepared site plan at the pointation of the accused in presence of Charag-ud-Din Magistrate (PW-2) in whose presence the accused have also made confession about the murder of the deceased which is not different from an extra Judicial confession. He argued that under Article-40 of Qanune-Shahadat when site plan is prepared at the pointation of the accused same will be used as a valuable piece of evidence against the accused. He further argued that before a police officer the accused have recorded his confessional statement as provided under section 21-H of ATA and through these pieces of evidence the appellant has been fully connected with the in hand offence and maintained that the conviction recorded by the learned trial Court calls no interference.
13. Admittedly, the occurrence has taken place in the shop owned by the deceased. Site of occurrence was, therefore, not disputed from the very beginning. Moreover, deceased Karamat was shifted in injured condition from the shop as such every person of the locality had the knowledge about the place of occurrence. As per the Doctor's report (Exh. PW-4/A) which has been prepared after conducting postmortem upon the body of the deceased shows that death of the deceased was caused due to gun-shot injuries and this aspect of the case is also not disputed but the evidence collected by the I.O. Shows that none has seen the occurrence. A perusal of impugned Judgment would reveal that the learned trial Judge has based the impugned conviction on the statement of the accused recorded under section 21-H of ATA before a senior police officer and the site plan prepared subsequently by the I.O. When he visited the place of occurrence along with the accused allegedly on their pointation.
14. So far the statement of the accused/appellant recorded under section 21-H of the ATA is concerned, superior Court have held the same was insufficient for conviction until such statement is not corroborated through some unimpeachable, reliable, and trustworthy source or strong circumstances that might remove inherent doubts attaching to the statement. The nutshell is that confessional statement recorded under section 21-H of ATA 1997 could by itself not constitute material evidence on which a criminal case could be based for conviction. However, it would be read as a piece of evidence along with other implicating material on the record. A police officer who records statement under section 21-H of ATA, is generally a District Police Officer who by virtue of his position is the SHO of whole District therefore, the statement recorded by him, would cast a serious doubt on its voluntariness. Such statement becomes doubtful when at the place where the occurrence took place or the statement is recorded also situate Courts competent for recording statement under section 164, Cr.P.C. And instead of recording the statement of an accused under section 164 the I.O. Produces the accused before police officer. In the instant case the statement of the accused/appellant was recorded at Gilgit where admittedly General Courts were functioning and in presence of General Courts Senior Police Officer recorded the statement of the accused was not justified.
14(sic.) The learned Deputy Advocate General during the course of arguments laid much emphasis on the statement made by PW-2 namely Charag-ud-Din in whose presence the I.O. At the pointation of the accused prepared 2nd site plane. In this regard the relevant PW says that he was deputed by Assistant Commissioner concerned to go to Basin Khari to associate the site inspection proceedings being carried by the I.O. At the pointation of the accused/appellant. Article 40 of Qanun-eShahadat says that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information whether it amounts to a confession or not, as relates distinctly to fact thereby discovered may be proved. In the instant case site of occurrence was already known to every person of the area wherefrom the deceased was removed to Hospital in injured condition, as such the exercise made by the I.O. Taking the accused at site for preparation of the site plan next time was a futile because site of occurrence was already identified. Mdreover, PW-2 went to the site by his own vehicle whereas the accused were taken there in a police vehicle in which the I.O.
Was also boarded. The PW-2 was not ensure if the police vehicle was made to stop by the accused when it reached at the place of occurrence. A question further arises whether the PW himself was acquainted with the place of occurrence. Benefit of Article 40 of Qanun-e-Shahadat goes to the prosecution when an accused leads the police to the site of occurrence which was still unknown to police and that from the site any signs relevant to the occurrence have been discovered. Thus, we hold that this piece of evidence will serve no purpose in favour of the prosecution case.
15. Accused Taimoor Iqbal who was acquitted by the learned trial Court, his case was found to be at par to the case of appellant thus, rule of consistency demands that the accused who equally charged for same offence must be treated equally otherwise the concept that "one law for all" would be defeated. The learned trial Court without recording any reason acquitted accused Taimoor but convicted the appellant despite of the fact that both the accused were standing at same position. Record also shows that one Zainul Abdin who pushed the accused towards the commission of the instant offence was not apprehended by the police. The police also released accused Waqar under section 169, Cr.P.C. Who was also equally charged in the case and later on the said Waqar while appearing in the witness box as PW turned hostile making the prosecution case further doubtful. During the course of arguments the learned counsel pointed out that both the accused and the deceased belong to same sect and this very fact leads to believe that police has also failed in conducting proper investigation and submitted challan against the appellant/accused under special law i.e, ATA-1997.
16. In the light of above discussion, we are of the considered view that the impugned conviction and sentence was not based on any evidence as such same is liable to be set aside and these are the reasons of our short order dated 09-03-2016 which is reproduced as under:- "For reasons to be recorded later, we accept this appeal and set aside the conviction and sentence passed against the appellant/convict and the appellant/convict is acquitted of the charges under sections 302, 114/34, P.P.C., section 21-L and 6/7 ATA 1997, vide FIR No, 65/2012, registered at Police Station Baseen, Gilgit. The appellant/convict be released forthwith, if he is not required to be detained in any other case." File.