MUHAMMAD ALAM, J.---Through this criminal appeal, convict/appellant has challenged judgment/order dated 02-07-2012, passed by the learned Judge Anti-Terrorism Court No.II, Gilgit, whereby, the learned trial court has convicted and sentenced convict/ appellant as under:-- "Hence I hereby convict the accused persons Farooq Ahmed, Binyameen and Faizan ul Haq under section 302(b)/34 read with sections 7(a) and 21-L ATA and sentence them 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.300,00/- each which shall be paid to the LRs of the deceased persons in equal proportion, if realized. In default of payment of fine, they shall undergo imprisonment for a further period of six months. All the sentences shall run concurrently."
2.Brief background of prosecution story of occurrence is that the then I.P. Mr. Noor Alam, SHO Police Station City Gilgit, received wireless message of an occurrence of firing and an explosion somewhere in link road Park Hotel Kashrote and the said police officer proceeded towards the place of occurrence alongwith a police team. On the scene of occurrence, near Girls High School Kashrote, the said SHO found a vehicle, GLT-C-4, parked in front of a bakery/shop. On entering the bakery/shop, the said SHO found two persons lying on the ground in injured condition while another 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 indiscriminite 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 on 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 FIR and after completion of investigation, submitted challan/charge sheet for trial of the convicts! appellant. Through impugned order, learned trial court convicted/sentenced convict/appellant in the above terms although appellant was then absconding. So the impugned conviction/sentence was passed in absence of appellant/convict. The co-accused of appellant filed appeal (Cr.Ap. No.24/2012) in this court and through their judgment/order dated 20-11-2013, a DB (including myself) of this court passed the following order :--
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) Gilgit-Baltistan for taking disciplinary action against the police officers who conducted investigation of the case, and the Administrative Judge Anti-Terrorism Court GilgitBaltistan to try said police officers, under the relevant provisions of law for poorly conducting investigation of the case. This file be consigned to record.
ANNOUNCED 20-11-2013 Sd/xxx JUDGE Sd/xxx JUDGE
4. We have heard learned counsel for appellant and the learned Deputy Advocate General and have thoughtfully considered their arguments. The simplest question debated before us is that whether conviction and sentence of the appellant can be upheld in the attending circumstances of the case in hand? Now it is not disputed that co-accused of the appellant have admittedly been acquitted after thorough appraisal of prosecution evidence. Result of the said finding of a DB of this court has been reproduced herein above. In this connection, learned counsel for appellant relied on case law reported in 2009 M LD 1198 Karachi. We have also perused the said case law wherein the learned court has set out a very golden principle, i.e., in such a situation appellant had two remedies open. The first one is, moving an application under Section 19(12) before the trial court as and when appellant surrendered after ending his absconcion or appellant arrested by police and the second one through appeal in hand. So, in our opinion, the appeal in hand is competent. Once it is established that co-accused of the appellant have been acquitted from the charges after thorough appraisal of prosecution evidence in proof of the guilt of the co-accused of appellant as well as the appellant himself, there remains no prosecution evidence in proof of guilt of the appellant. The only question for consideration is whether conviction/sentence of the appellant can be maintained only on the ground of mere abscission of the appellant? On that aspect of the case, we rely on the principle laid down in the above referred case law submitted by counsel for appellant and hold that , the impugned conviction/sentence cannot be upheld. We further hold that the learned trial court has passed impugned order in utter defiance of the principle laid down in the above referred case law as well as in defiance of above referred judgment/ order of a DB of this court. So, we strongly pass remarks of deprecation against the views of the learned trial court demonstrated by him in passing the impugned conviction/sentence.
5. We, therefore, allow this appeal throughout, set aside conviction/sentence of the appellant and acquit the appellant from the case. Appellant be released forthwith, if not required in any other case. This file be consigned to record.