MALIK HAQ NAWAZ, J.---The instant criminal appeal bearing No, Cr. Appeal-23/2016 has been filed by the convicts/appellants against the order/ judgment dated 31-05-2016 passed by learned Judge Anti-Terrorism Court No,1 Gilgit, whereby the learned trial Court convicted appellant No, 1 under section 302(b), P.P.C. read with 7-A Anti-Terrorism Act, 1997 and sentenced him to death with a fine of Rs, 300000/-. The learned trial Judge also convicted him under section 13-D and awarded 7 years imprisonment. The learned trial Court also convicted appellant No, 2 under section 302(b), P.P.C. read section 7-A of Anti Terrorism Act-1997 and awarded life imprisonment, with a fine of Rs, 200000/-. The appellant No, 2 was, also convicted under section 21-L of ATA-1997 and awarded 5 years Rigorous imprisonment.
2. The appellants being aggrieved from the verdict handed down by the learned trial Court have filed the instant appeal challenging the legality/propriety of the said judgment.
3. By means of this single judgment we intend to dispose Criminal Appeal No, 23/2016 filed by the appellants and Murder Reference No,01/2016 submitted by the learned trial Court under section 374, Cr .P.C. for confirmation of death sentence awarded to appellant No, 1 namely Adnan Hussain.
4. The instant murder reference and connected appeal are arising out of FIR No, 02/2014 registered under section 324/ 34, P.P.C., which was later on converted to section 302/34, P.P.C. read with section 6/7 ATA-1997. The FIR was registered at Police Station City Gilgit on the written report of one Char Yar Qul on a verbal report and marked as Exh. PW-2/A. The facts as narrated in the FIR and reproduced in the opening para of the judgment of the trial Court dated 31-05-2016 are as under:-- "I Char Yar Qul son of Qurban Nazar, an Afghan Refugee and I am residing in Gilgit since the year 1988 and working as chef (cook) in Karakuram Lodge Hotel situated at Nabi Bazar and reside in a rented house in Mughulpura Muhallah in the neighborhood of Mr. Zafar lqbal son of Nazeem Khan.
Mr. Zafar lqbal was running business of balance card near lodge hotel. As per routine, I and Zafar lqbal used to go home together after Mughrib Prayers. As usual, today on 09/01'/14 while going home at about 05:45 PM, when Zafar lqbal, and I reached near Newspaper office through Majini Muhallah Link Road, all of sudden a bike came from behind on which two persons were riding and one of the said persons opened fire on Zafar lqbal with the intention to kill him and ran away through the same link Road on motorcycle. Due to darkness, nothing could be identified. As a result of firing, Zafar lqbal got injured and fell down on the spot. I again went to the hotel and informed Mr. Akram and Bulbul about the occurrence and when reached on the spot, police were present on the spot. Struck with fear, I went to home though Jamat Khana Bazar from where I have come to Police Station for report. Legal action may be taken against unknown accused".
5. In pursuance of the information furnished by the complainant (PW-2), IP Ali Muhammad (PW-15) after reducing the FIR into writing deputed SI Ishaq Hussain to rush to the spot of occurrence and the said PW also cordoned the place of occurrence. During spot inspection he took into possession 5 empty shells of 30 bore pistol and prepared recovery memo Exh. PW-8/A. Blood stained earth was also collected from the place of occurrence and recovery memo Exh. PW-8/B in presence of the Marginal witnesses was prepared. PW Ali Muhammad also prepared site plan of the occurrence Exh. PW-15/A. SIP Ishaq was deputed to complete the codal formalities in the hospital. On 10-01- 2014 accused Adnan Hussain was arrested and a JIT was constituted for investigation of the instant case, During investigation accused Adnan Hussain got recovered a .30 bore pistol, which was taken into possession vide recovery memo Exh. PW-6/A. A site plan on the pointation of the accused was prepared which was exhibited during trial as Exh. PW-6/C. FIR under section 13 A.O. was registered against the accused Adnan Hussain for possession of arms without a proper/valid license. On 04- 02-2014 the confessional statement of the accused Adnan Hussain under section 21-H of ATA-1997 was recorded by SSP Gilgit and on the same day he was committed to judicial custody. On 12-01- 2015, accused Abdar Hussain was arrested and on the pointation of accused Abdar Hussain Exh.
PW-4/B. was prepared. On 23-01-2015 the confessional statement of accused Abdar Hussain was recorded and he was also committed to judicial lock up. The recovered articles and crime weapon recovered from the accused Adnan Hussain was sent to the respective experts for expert opinion.
The opinion of the Project Director National Science Laboratory marked as Exh. PW-11/H is positive and the expert opinioned that 5 crime empties were fired from pistol No, F-06A009 and likewise the report of Chemical Examiner/ Serologist marked as P/A is also positive.
6. After completion of prosecution evidence the statement of accuse under section 342, Cr.P.C. were recorded. Accused Abdar Hussain got recorded his statement on oath under section 340(2), Cr.P.C., in which he denied commission of offence. In support of this version he requested the trial Court to summon Colonel Muzamil Hussain posted as ADOS in Gilgit-Baltistan Scouts, who was examined as CW-01 on 14-12-2015 and closing statement of accused was recorded on 09-03-2015, the date seems to be incorrect and a clerical mistake.
7. After completion of trial, the learned trial Court announced its verdict, which is reflected in paras Nos, 97 to 99 of the judgment, which paras are reproduced for the purpose of convenience.
"97. In view of the discussion made in paras Nos, 17 to 96 above, and after evaluation of entire evidence, 1 am, of the considered opinion that the prosecution has proved its case against accused Adnan Hussain and accused Abdar Abbas beyond any shadow of doubt by producing sufficient evidence in the shape of circumstantial evidence, Arms Expert Report, Chemical Examiner/Forensic Serological Report, confessional statements of accused, extra judicial confession of accused Abdar Abbas, medical evidence and recovery of weapon of offence.
98.No mitigating circumstances are available in favour to the above named accused, as they have brutally committed the murder of deceased Zafar lqbal. The manner in which the accused have committed the offence does not call for any leniency in the sentence.
99.In the light of above discussions, I hold that the prosecution has proved the guilt of the accused Adnan Hussain and accused Abdar Abbas for murder of deceased Zafar Iqbal in furtherance of their common intention. Hence, I convict accused Adnan Hussain under section 302(b), P. P. C. read with section 7(a) of the Anti Terrorism Act-1997 and sentence him to death. He shall be hanged by his neck till he be dead. The above named convict/accused shall pay Rs, 300000/- (three hundred thousand) as compensation to the LRs of the deceased under section 544-A, Cr.P.C. In default of payment of compensation by convict/accused, he shall undergo imprisonment for 2 years. Accused Abdar Abbas is hereby convicted under section 302/34, P.P.C. read with section 7(a) of the Anti Terrorism Act-1997 and sentenced him to undergo rigorous imprisonment for life and also fine of Rs, 200000 (two hundred thousand). The amount of fine if recovered shall be paid to the L.Rs, of the deceased under section 544, Cr.P.C. In default of payment of fine by the convict/ accused, he shall undergo imprisonment for two years. Accused Abdar Abbas is also hereby convicted under section 21-L of the Anti Terrorism Act, 1997 and sentenced him to rigorous imprisonment for 5 years. Accused Adnan Hussain is also hereby convicted under section 13(d) of Arms Ordinance, 1965 and sentenced him to imprisonment for 7 years. The weapon of offence pistol 30 bore bearing No, GAC 1465 is hereby confiscated in favour of the State.
8. The learned counsel for the appellant/convict Adnan Hussain submits that whole of the prosecution story is based on surmises and conjectures and no worth reliance, evidence is available on record to connect the appellant with the alleged offence. The learned counsel further submitted that the vital and fatal contradictions have been ignored by the trial Court and benefit of doubts have not been resolved in favour of the appellant rather the blessing have been showered on the prosecution. The learned counsel stated that PW-6 Arif Hussain, a Magistrate stated that a 30 bore pistol bearing No, GAC 1565 was recovered on the pointation of the accused/appellant Adnan Hussain, but as per recovery memo Exh. PW-6/A the number of pistol has been shown as GAC1465, further PW-8 SGC namely Hifaz-udDin himself admitted in cross- examination that he collected two empty shells of 32 bore pistol which also negates the version of prosecution. No identification parade of the appellants was conducted which was necessary as the names of the appellants were not mentioned in the FIR. The postmortem of deceased was not conducted which left a lacuna in the prosecution case and no valid reasons have been given for non-conducting of postmortem. Lastly that 21-H of the accused Adnan Hussain cannot be relied as the same has been recorded by the Superintendent of Police after 24 days of his arrest and in view of the judgment of hon'ble apex Court handed down in a case "Alliq Husain v. the State", such statement cannot be used against accused as a corroboratory piece of evidence.
9. The learned counsel for the appellant Abdar Hussain submits that the only' allegation against the appellant is that he took the principal accused on a motorbike and after commission of murder brought back the accused, but to substantiate this bald accusation there is no tangible evidence on record. The learned counsel for the appellant further contended that the main prosecution witnesses i,e, PW-1, PW-6, PW-8 and PW-10 have not stated a single word against the accused/ appellant and except his confessional statement under section 21-H, there is nothing on record to connect the appellant with the alleged crime. The learned counsel relied on 2005 YLR 1757, PLD 1995 FSC 20, 1984 PCr.LJ 1962, PLD 2003 Lah. 217, 1992 SCMR 1134, 2005 PCr.LJ 578, 2002 PCr.LJ 34, 1988 MLD 38, 2016 YLR 1418, 2006 PCr.LJ 639, PLD 1978 SC 21 and 2011 YLR 1369 in support of their arguments.
10. Conversely the learned Deputy Advocate General and the learned counsel for complainant submitted that there is strong evidence against both of the appellants/convicts and the defence despite lengthy and exhaustive cross-examination could not shatter the evidence of this natural and reliable evidence. The learned Deputy Advocate General further contended that both the accused confessed their guilt in their confessional statements recorded by Superintendent of Police, which are quite in line with the prosecution evidence. Further that a .30 bore pistol was recovered from accused Adnan Hussain, which was sent to Forensic Science Expert along with the crime empties recovered from the place of occurrence and it was found wedded with the crime empties, which is a strong piece of corroboratory evidence. Moreover accused Abdar Hussain remained absconder for a period of about 1 year, which remained unexplained. Long and unexplained ascendance be treated as a corroboratory piece of evidence and be read in support of prosecution evidence. The learned Deputy Advocate General and learned counsel for the complainant relied on 2011 PCr.LJ 389, PLD 2001 SC 222 and 2007 SCMR 518.
11. We heard both the learned counsel for the parties at length and have also gone through the available evidence. The trial Court divided evidence of prosecution in following categories in order to base conviction.
(i) Direct evidence
(ii) Circumstantial evidence
(iii) Confessional statements
(iv) Extra Judicial
(v) Arms Expert Report (vi)Absconsion Direct evidence of the occurrence as per the findings of trial Court has been furnished by PW-2 Char Yar Qul, but in our humble opinion although presence of the above PW is not disputed but it is evident that he also lodged FIR of the occurrence but did not either named the accused or even their features and no identification parade was held to indentify the culprits after their arrest, which was a mandatory requirement of law. The direct evidence of this PW is of no avail to the prosecution. Circumstantial evidence has been furnished by PW-11 Sir Iqbal. The statement of this PW who is real brother of deceased has been recorded by the local police under section 161, Cr.P.C. on 13-01-2014 after 3 days of the occurrence. The statement of this PW cannot be used as a circumstantial evidence as no recovery of motorbike or its further identification has been conducted through this PW which may have been a piece of corroboratory evidence, but strange enough that the recovery of motorbike from a busiest place and then its parking after commission of offence has not been noticed by any one. It does not appeal to a prudent mind that how the lock of motorbike was opened and how the motorbike was started without its original key and non recovery of master key or a key, which was used for lifting and starting of bike nor any explanation in this regard has come on record to satisfy the mind of this Court. Confessional statements of the appellants were recorded by PW-1 Dr. Muhammad Farooq Ahmed, DIG Range Gilgit. The confessional statement under section 21-H of ATA-1997 of appellant/accused Adnan Hussain was recorded on 04-02-2014, while the statement of accused Abdar Hussain was recorded by SSP Gilgit Ishaq Hussain on 23-01-2015 and after recording of conditional confessional statements they were committed to judicial custody. It has been held by the Hon'ble Supreme Appellate Court of Gilgit- Baltistan in a case titled "Alliq Hussain v. The State" that confessional statements recorded by a police officer under section 21-H will not be admissible in evidence. This Court in the light of the guide lines laid down by Hon'ble Supreme Appellate Court has held in number of judgments that there must exist some extraordinary or compelling circumstances to justify non-production of the accused before a Judicial Magistrate and instead getting his statements recorded by a police officer. The statements of I.O. and two senior police officials are on record and completely silent in this regard, hence these statements cannot be termed as confessional statement of the accused, which even otherwise runs counter to the prosecution story and statement of real brother of deceased (PW-11) Sir Iqbal. As per prosecution story the accused Abdar Hussain deceitfully lifted a motorcycle from Shaheed-e-Milat Road. There is another aspect which contradicts the prosecution story, that both the accused set forth for target killing of Faizan afternoon time but after having failed to achieve the mission, they decided to take life of deceased Zafar Iqbal, it is worth mentioning here that deceased as per prosecution story was murdered at 1740 pm after Magrib prayer time, which also does reconcile with the time of commission of offence and confession recorded under section 21-H of ATA-1997. The learned trial Court has wrongly treated the statements of both the accused before police in presence of Magistrate as a circumstantial evidence. Any statement made by an accused while in police custody is not admissible in evidence. Art 39 of Qanun-e-Shahadat is reproduced as under:-- "Art-39:- Confession by accused while in custody of police not to be proved against him.
Subject to Article 40- no confession made by any person whilst he is in the custody of police- officer, unless it be made in the immediate presence of a Magistrate, shall be proved as against such person".
12. The abscondence of accused has been taken as a corroboratory piece of evidence by the learned trial Court and the accused Abdar Hussain has also been convicted under section 21-L and awarded 5 years rigorous imprisonment under section 21-L of ATA-1997. Now almost all it is a settled proposition of law that mere abscondence of an accused will not improve the prosecution case, if from other independent evidence, the same is not proved.
13. A .30 bore pistol was allegedly recovered from accused Adnan Hussain on his pointation vide recovery memo PW-6/A. The accused Adnan Hussain was arrested on 10-01-2014. On 28-01-2014 the recovery was effected. On 26-01-2014, I.O. submitted an application to Ilaqa Magistrate to depute a Magistrate as the accused was willing to get the weapon of offence recovered. On the same day PW-6 Naib Tehsildar Arif Hussain was deputed but recovery was effected on 28-01-2014 and no reasons have been shown for this delay. As discussed above the recovery was effected on 28-01-2014. The recovery of crime weapon after 18 days of arrest of accused raises a big question mark regarding its genuineness. Crime empties (5) in number were recovered on the day of occurrence i,e, 09-01-2014, the recovery of crime weapon was effected after about 18 days of the occurrence i,e, 28-01-2014 but the same were received in the office of Forensic Expert on 10-04-2014 and report Exh.PW-15/H was issued on 05-05-2014. The crime articles were sent to expert after inordinate delay of about 03 months 12 days and that too together which also create doubts about the authenticity of the report. Now it is settled law that if the crime empties and weapon of offence are recovered on different dates but sent together, the positive reports are always seen with suspicions and similar is the situation here. For the purpose of convenience the reference and guide lines could be gathered from the following judgments. It has been so held in PLD 2008 SC 01, 2008 SCMR 707 and 2007 PCr.LJ 332. The relevant citations are re-produced as under:-- "PLD 2008 SC 01:
(b) Penal Code (XLV of 1860)-- ---S.302--Appreciate of evidence---Crime empties and weapon sent together to Forensic Science Laboratory--Positive report of Laboratory--Validity--Such repost would be liable to be rejected--- principles. [p. F 2008 SCMR 707:
(b) Penal Code (XLV of 1860)-----S.302---Reappraisalofevidence---Sending of crimeempties---Delay---Crime empties allegedly found at the place of occurrence were retained in police station and were sent to Forensic Science Laboratory, along with crime weapons, 12 days after the recovery of alleged weapons---Effect--Delay had destroyed the evidential value of piece of evidence and the recoveries could not offer any corroboration to the ocular testimony. [p. 711] C 2007 PCr.LJ 332: Penal Code (XLV of 1860)--- ----Ss. 302(b)/109 & 302(b)---Appreciation of evidence---Statements of prosecution witnesses that they had seen and heard the accused requiring the principal accused to kill the deceased had remained uncorroborated and did not inspire confidence--Parties were admittedly inimical to each other and being not on visiting terms prior to the occurrence, claim of complainant of having been called by the deceased for compromise did not appeal to reason---Eye-witnesses were chance witnesses and their presence at the scene of occurrence was not established on record by any independent evidence---Motive on the part of accused to commit the offence was not proved---Crime empties and the rifle were sent to Forensic Science Laboratory after the recovery of rifle--Prosecution evidence suffered from material contradictions and inconsistencies and did not inspire confidence at all---Accused were acquitted in circumstances. [pp. 340, 342, 3431 A, B & C"
As a sequel of above discussions, we found each and every piece of prosecution evidence defective and tainted and one tainted piece of tainted evidence cannot corroborate another piece of evidence. There is not an iota of evidence to connect the appellants with the alleged offence.
Now it is a settled law that many circumstances are not required to extend benefit of doubt to an accused and if a single circumstance which create a reasonable doubt in a prudent mind would be sufficient to bless accused with the benefit of doubts as the accused is always considered a "favourite child of law".
Prosecution has to build its own case and not to claim benefit of any weakness of defence. It is the prime duty of the Court to sift grain from the chaff but we found chaff all around and if could not pick a single grain from the chaff for rescue of prosecution then the result would be obvious. All the above detail discussion leads us to the irresistible and unavoidable conclusion that prosecution miserably failed to establish their case beyond any shadow of doubt. Benefit of doubt is decades recognized principle in our criminal dispensation of justice system. Wisdom could be drawn from PLD 1970 SC 10 and 2008 SCMR 1221. Relevant citations are re-produced as under:-- PLD 1970 SC 10: Panel Code (XLV of 1860), 5.302-- Conviction---Should rest surly and firmly on evidence adduced and clear inference that may be drawn there from-Guilt cannot be based merely on high probabilities that may be inferred from evidence in case-Evidence Act (I of 1872), S.3.
The High Court in a murder case observed that "the findings of a Court may not be wholly dependent on evidence alone" and by reference to the definition of word "proved" given in the Evidence Act, 1872 remarked "the Court is, therefore, not bound to base its findings on evidence alone as mentioned in the Evidence Act, but has to see the high probabilities regarding the existence or non-existence of a fact after considering the matter before the Court": Held, it may be said that a finding of guilt against an accused person cannot be based merely on the high probabilities that may be inferred from evidence in a given case. The finding as regards his guilt should be rested surely and firmly on the evidence produced in the case and the plain inferences of guilt that may irresistibly be drawn from that evidence. Mere conjectures and probabilities cannot take the place of proof If a case were to be decided merely on high probabilities regarding the existence or non-existence of a fact to prove the guilt of a person, the golden rule of "benefit of doubt" to an accused person, which has been a dominant feature of administration of criminal justice in this country with the consistent approval of the superior Courts, will be reduced to a naught. [p. 121 A 2008 SCMR 1221:
(e) Criminal trial-- --Benefit of doubt, principle of--- Applicability---For the purpose of benefit of doubt to an accused, more than one infirmity is not required---Single infirmity creating reasonable doubt in the mind of a reasonable and prudent person regarding the truth of charge, makes the whole case doubtful. [p. 12281 E
(f) Qanun-e-Shahadat (10 of 1984)-- ----Arts. 117 & 120---Anti-Terrorism Act (XXII of 1997), S.7--Burden of proof---Principle---Merely because burden is on accused to prove his innocence, it does not absolve prosecution from its duty to prove its case against accused beyond any shadow of doubt and this duty does not change or very in the case---Finding of guilt against person cannot be based merely on high probabilities that may be inferred from evidence in a given case---Mere conjectures and probabilities cannot take place of proof. [p. 12281 F
15. In view of above detail discussion, we are of the view that prosecution has failed to prove their case beyond reasonable doubt and as a result thereof the appeal filed by the appellants is allowed and Murder Reference No, 01/2016 of accused Adnan Hussain is answered in negative. The appellants shall be released forthwith if not required to be detained in any other case. Criminal Appeal No, 23/2016 and Murder Reference No, 01/2016 are disposed of accordingly.