' MALIK HAQ NAWAZ, J.---The brief facts of the case are that the respondent/accused was arrested in case registered under sections 302/. 324/109/34, P.P.C. Read with sections 6/7 of ATA-1997 and during investigation of the above case the respondent led to recovery of a .30 bore pistol on 21.01.2009 and a separate FIR for having unlicensed arms was registered in Police Station City Gilgit on 22.01.2009.
2. The above mentioned murder case after completion of investigation was sent to ATC Gilgit along with the case registered under section 13 A.O. And the learned ATC Judge took cognizance of the case under section 12 of Anti Terrorism Act, 1997.
3. On 18.12.2011 the learned trial Judge Anti Terrorism Court No,2 sent the instant case to the Court of learned Judicial. Magistrate Gilgit under the assumption that the case registered under section 13 A.O. Is exclusively triable by the Court of Judicial Magistrate.
4. The learned Judicial Magistrate summoned the accused for 11.12.2012 and the accused put up his appearance on 28.08.2013 and copies of the case were provided to him under section 242-A, Cr.P.C.
The case could not be finalized due to one or the other reasons for which respondent/State both are equally responsible for causing delay of the case.
5. On 06.09.2016 the learned Judicial Magistrate acquitted the respondent/accused only on the ground that the charge was framed on 29.7.2009 and prosecution has not produced the PWs so far. The learned Judicial Magistrate assumed that there exists no probability of accused being convicted for the offence charged with and the accused was acquitted vide order impugned before this Court.
6. The state being aggrieved of the order filed an appeal under section 417, Cr.P.C. For setting aside the acquittal of the respondent/ accused mainly on the ground that the case registered under section 13 A.O. Vide FIR No, 17/2009 was an integral part of the main case arising out of FIR No, 303/2008 and the transfer of the case to the learned Judicial Magistrate by the learned Judge ATC was not only illegal but also without jurisdiction and all the subsequent proceedings were illegal, unwarranted and the case be remanded back to the ATC as the main case is still sub-judice in the trial Court. Moreover the acquittal has been recorded on the basis of conjectures/surmises without any legal justification, which merit reversal.
7. On the other hand the learned counsel for the respondent defended the order of learned Judicial Magistrate and submits that the order of lerned trial Court is well reasoned and has been passed after due application of judicial mind.
8. I having heard the parties on last date of hearing and learned Dy.A.G was directed to produce the record of main case, which has been provided for perusal. From the perusal of site plan, which was prepared by the I.O. Immediately after the occurrence 5 crime empties of .30 bore pistol were also recovered from the place of occurrence besides the recovery of crime empties of 7.62 MM. The crime empties which were recovered from the place of occurrence were found wedded with the .30 bore pistol recovered from the possession of petitioner on his pointation. The acquittal of the respondent/accused and that on some flimsy grounds cannot be accorded judicial blessing as the learned Judicial Magistrate has not followed the procedure provided from section 68, Cr.P.C, to section 93(C), of Cr.P.C. For procuring attendance of the witnesses. The transfer of the case of 13 A.O. By the Judge Anti Terrorism Court No,2 was not only illegal but also unwarranted, as it was a corroboratory piece of evidence in the main case and the witnesses of recovery are also cited as PWs, in the calendar of witnesses of main case pending adjudication in the Court of Anti Terrorism Gilgit.
9. The result of above discussion is that the order of learned Judicial Magistrate Gilgit dated 06.09.2016 is set aside and case is remanded back to the Court of Anti-Terrorism Gilgit, which will be proceeded/disposed along with the main case. The case file of this case be immediately sent to the learned Judge Anti-Terrorism Court Gilgit for further proceeding. The parties are directed to appear before the trial Court on the date fixed in the main case.