MALIK HAQ NAWAZ, J.---Impugned here is the judgment of learned Anti-T errorism Court No, 1 Gilgit, whereby the accused/ appellant after having been found guilty for commission of the offences under Section 395/34, P.P.C. read with Sections 6/7 Anti-T errorism Act, 1997 was convicted and sentenced to undergo 10 years' R.I. and a fine of Rs,200000/- (T wo lac). In default of payment the appellant was to suf fer imprisonment for six months.
2. Prosecution case as narrated in FIR Exh. PW-4/A, which was lodged on a written Murasla Exh. PW-3/B, submitted by SIP Syed Qadeer Shah, have been mentioned in opening part of the impugned judgment, which is produced as under:-- "Briefly stated the prosecution, story is that the incharge Police Station Phandar , District Ghizer has registered a case on 05.09.2015 vide FIR Ex. PW-4/A on the written murasila Ex. PW-3/B submitted by SIP Syed Qadeer Shah wherein it has been stated that, "Reference to the Roznamcha report No, 11 dated 05.09.2015, I went to the place of occurrence Check post Lout Shat Thamushki and came to know about the situation at the place of occurrence that on previous night on 04-09-2015, HC Syed Shah Hassan and constable Gul Nawaz, Ghulab Khan and Shahid- ud-Din were present duty in Check post Lout Shat. At about 2000 hours at night about 12/13 accused equipped with weapons broke into the check post and tied the Police officials present in Check post with rope on gunpoint and looted government weapons SMG No, 35035399 (2) SMG No R. V7012 (3) Rifle 7.62 MM No, 10122320, (4)
Rifle 7.62 MM NO. 10035253 (5) Rifle 7.62 MM No,15303705, (6) Rifle 7.62 MM No, 12120493 (7) Rifle MP-5 No, C311984 and ammunition 7.62 MM total 600 rounds, whereas 90 rounds of MP-5, 4 spare magazines of SMG, 32 No, of charges, boot, bags cash and mobiles detailed list of which will be obtained. Besides, the above named Police officials, constables Bahadur Wali, Niat Arran, Sher Dil Khan, Abdul Jahan and Ehtsham-ul-Haq were also deputed on duty at check post who were absent on the day of occurrence without obtaining permission. The accused have not only drubbed/thrashed the Police officials taking arms and ammunitions and have committed offences under sections 395/ 386/342/353/147/134, P.P.C. Murasila is sent through constable Gul Nawaz and requested that case be registered again st the unknown accused and paras of FIR be conveyed. I am busy in carrying out the proceedings of the occurrence." After registration of the FIR, investigation was entrusted to the investigation wing.
3. It is pertinent to mention here that the appellant was already arrested in a case FIR No, 19/2015 under Sections 302/342/460, P.P.C. of Police Station Gupis and on application submitted by Investigating Officer of the instant case his custody was handed over to the I.O. and he was re-arrested in FIR No, 06/2015 of Police Station Phander (the FIR of the instant case).
4. After conclusion of trial, the appellant was convicted as stated above. Some of co-accused were also convicted in absentia and as informed by the learned counsel for the appellant and learned Dy. Advocate General none of them has yet been arrested.
5. The learned Counsel for the accused contended that impugned judgment of the learned trial Court is in total disregard of facts and circumstances of the case. The judgment of the learned trial Court is based on mis- appreciation and mis-application of evidence. The so called conditional confessional statement recorded by SSP has been made the sole base for convict ion, which under no circumstances could be termed as a genuine and a valid piece of evidence. The preparation of site plane Exh. PW-7/A on 10-12-2015 cannot come for rescue of the prosecution as all the information contained in site plan was already known to the police. The learned counsel lastly contended that there is no worth reliance evidence on record to establish even a remote involvement of the appellant in commission of the offence for which he has been convicted. Thus the impugned judgment of learned trial Court merit reversal and clean acquittal of the appellant be ordered to meet the ends of justice.
6. The leaned Dy. Advocate General vehemently refuted the arguments of learned Counsel for the appellant and submitted that writ of State was challenged by the terrorists, who attacked a Police Chocki in a remote area of District Ghizer . The terrorist tied the police officials with ropes and took away the Government arms and ammunitions. There is a dire need to deal such like offenders with iron hands to establish the writ of the State. The learned Dy. Advocate General contended that the appellant is a man of criminal credentials as he is also involved in a double murder case registered at Police Station Gupis vide FIR No, 19/215 under Sections 302/342/460/34, P.P.C. The custody of the appellant was handed over to the I.O. of the case on 07-12-2015. On 10-12-2015 the appellant pointed out the place of occurrence and on 14-12-2015 his confessional statement under Section 21-H of Anti-T errorism Act, 1997 was recorded, which seems to be true and voluntarily . The accused pointed out the place of occurrence in presence of Magistrate which is fully covered under Art-40 of Qanun-e-Shahadat, 1984. A packet of toffees was also taken by the terrorist from the Police Chowki, which was later on recovered from a cave. The evidence brought on record by the prosecution is suf ficient to maintain conviction of the accused.
7. Perusal of record shows that the appe llant was already under arrest on the charges of double murder , when on 07-12-2015 the learned trial Court allow ed the I.O. of the instant case to take custody of the appellant from Superintendent Jail. The accused pointed out the place of occurrence in the presence of PW-7 Syed Tahir Hussian Magistrate 2nd class and another witnes s of pointation memo is PW-8 Faryad Hussain. PW-8 Faryad Hussain while deposing in Court stated in cross-examination that "It is correct that in the month of December , there was severe cold and snow falls in the place of occurrence and nobody can proceed to the place of occurrence"
8. The perusal of impugned judgment shows that the learned trial Court while convicting the appellant has relied on the following pieces of evidence:-
(i) Ocular evidence
(ii) Circumstantial evidence
(iii) Recoveries
(iv) Confessional statement of the accused
(v) Abscondence of the accused The ocular evidence when examined, none of the PW stated a single word about the involvement of the accused nor identified him either in any identification parade or even in the trial Court. Circumstantial evidence is also not worth reliance. No recovery has been effected on the pointation of the accused and a packet of toffees was allegedly recovered by the I.O. during investigation and it was stated that the said packet of toffees was taken by the terrorist from the Police chowky .
10. As well as the abscondence is concerned, it cannot come for rescue of the prosecution when there is no other corroboratory evidence to connect the accused with the crime. The learned Dy. Advocate General laid much stress that the confessional statement of the accused is sufficient to maintain his conviction. We are at pain to observe that it has been held by this Court in number of judgments that the accused must be produced before a judicial Magistrate for recording their confessional statements as the statement under Section 21-H, howsoever transparent cannot be substitute of a confessional statement recorded under Section 164, Cr.P.C. The confessional statements recorded under Section 21-H of Anti-T errorism Act, 1997 are always treated as suspected piece of evidence until and unless it is shown by the prosecution that there were some compelling circumstances which were beyond the control of the investigation agency to produce the accused before a Judicial Magistrate. We repeatedly asked the learned Dy. Advoca te General to point out any such circumstances but he kept his lips tight.
The Hon'ble Supreme Appellate Court in a judgment passed in Cr. PLA No, 10/201 1, titled (Atteq Hussain v. State) dated 21-09-201 1 has held that the confessional statement recorded by a police officer shall not be admissible in evidence. Paras. 16, 17, 19 and 20 are relevant which are re-produced for ready reference:-
16. This is basic principle of criminal administration of Justice that an accused is and innocent child of law unless he is proved guilty and this principle is based upon the concept of Justice in Islam., There is no cavil to the proposition of law that conviction can alone sustain on the basis of even a retracted confession made by and accused person before a Judicial Officer if it is found truthful and confidence inspiring and since no sanctity is attached with the confession of guilt before a Police Officer , therefore, such confession cannot be considered at par to the Judicial confession and is not admissible in evidence to be made basis of conviction. The question of admissibility of confession before a police officer under Section 21(h) of Anti-T errorism Act, 1997 was considered by the Supreme Court of Pakistan in Mahram Ali Case (PLD 1998 SC 1445 ) supra wherein it was held that confessional statement before a police officer was not admissible and obse rvation was made for suitable amendment of Section 21(h) of Anti-T errorism Act, 1997. This is settled law that a confession made before a judicial officer subject to the credibility of statement is admissible in evidence whereas a confession made before a Police Officer or any other person in authority or a private person may have no legal sanctity and can hardly be treated an extra judicial confession in law. The confession of an accused under custody before a Police Officer may not be free from undue influence and coercion as Police custody itself is considered coercion and a statement during custody may not be voluntarily . This is settled principle of constitutional law that a person an accused of an offence cannot be compelled to be witness against himself and in that context the Judicial confession made by an accused voluntarily before a Magistrate which is recorded After fulfillment of legal requirement may be admissible as evidence against him but a confession made before Police Officer cannot be equated with the confession before Magistrate because no presumption of its being voluntary can be attracted with such a statement.
17. There is no compulsion for the court to accept the confessional statement of accused recorded by a Judicial officer or a Police Officer but fact remains that a confession made before a Judicial officer has evidentiary value to be accepted as evidence whereas a confession made before a police officer is not considered a legal evidence.
The official authority of Police Officer may create an impression of compelling the accused to make confession and Supreme Court of Pakistan in Mehram Ali v. Federation of Pakistan (PLD 1998 SC 1445 ) having exhaustively dealt with the issue declared the provision of Section 21-H of Anti-T errorism Act, 1997 ultra vires to the Articles 13 and 25 of the Constitution of Pakistan. The Anti-T errorism Act, 1997 is a federal law which has been made applicable in Gilgit- Baltistan and a provision of federal law declared by the Supreme Court of Pakistan ultra vires to the constitution of Pakistan can no more be treated as part of statute and would have no legal effect.
19. In the light of the above discussion there can be no departure to the principle that a confession before a Police Officer is not admissible in evidence under the provision of Qanun-e-Shahadat Ordinance, 1984 and cannot be used as evidence against the accused at the trial at par to the Judicial Confessio n for the purpose of conviction.
The confession before a Police officer may carry the presumption of coercion and undue influence unless it is established on record that an accused voluntarily made a statement before a Police officer quite free from an influence or coercion. The voluntary confession before a Police officer who is not associated with the investigation of case may have the status of extra judicial confession which is very weak type of evidence and cannot be relied upon without independent corroborative evidence of sound and unimpeachable character .
20. In consequence to the above discussion we hold that the confession before a police officer is not admissible as evidence of guilt and provision of section 21-H of the Anti-T errorism Act, 1997 being violative of Article 17 of Gilgit- Baltistan (Empowerment and self Governance) Order , 2009 read with Articles 13 and 25 of the Constitution of Pakistan unless suitably amended as observed by Supreme Court of Pakistan in Mehram Ali's Case supra cannot be treated valid law. This is important to point out that in terrorism cases, usually direct evidence is not available and culprits may get undue benefit of the situation therefore , in the light of Supreme Court of Pakistan in Mahram Ali's Case, the suitable amendment in Section 21-H of Anti -Terrorism Act, 1997 is necessary and Chief Secretary Government of Gilgit-Baltistan will take up the matter Ministry of Law, justice and human Rights, Government of Pakistan for the amendment in Section 21 -H Anti-T errorism Act, 1997 on priority .
11. Needles to say that in cases of terrorism and sectarian killing the approach of the Court must be dynamic and not static and the Court, while considering or adjudicating upon a case of terrorism must take into consideration the surrounding circumstances, the prevailing law and order situation in the country . The accused charged with the offences of terrorism and sectarian killing should not be acquitted on technicalities and self style benefit of doubt.
However , in a case of terrorism, where deterrent punishments are provided the standard of proof should also be above board and the doubts, whenever and wherever occurring the benefit should not be withheld only because an accused was booked in the offences of terrorism. The Court must keep in mind that there is a common trend in our society and especially in cases relating to terrorism and sectarian killing, where innocent persons are falsely implicated just to equal the score with rival groups. However , the prime duty to dispense justice lies with the Court and Court should have in mind that it is better to acquit hundred guilty persons instead of punishing one innocent person.
12. In view of above discussion, we are of considered view that no worth reliance evidence is available against the appellant and all the pieces of evidence produced by the prosecution are defective and lack the required standard of proof and that too in a case, where appellant has been booked for a case under Anti-T errorism Act, 1997.
13. The appeal is allowed, the appellant is acquitted from the charges. He is directed to be released forthwith, if not required to be detained in any other case.
14. File be consigned to record after completion.