ALI BAIG, J.---This criminal appeal has been directed against the impugned dated 16.10.2017 passed by Anti-Terrorism Court No.1 Gilgit Baltistan whereby the learned trial Court has acquitted the respondents/accused from the charges under sections 324,114/34, P.P.C. read with sections 21-
(L) and 6/7 of Anti-Terrorism Act, 1997.
2. Briefly stated facts of the case are that on 22-11-2010 at 1700 hours a case under sections 324,114/34, P.P.C. and 6/7 ATA, 1997 was registered at police station city Gilgit on the written report of one Mubarak Jan son of Mohammad Ramzan vide FIR No 324/2010 wherein it was alleged that brother of the complainant namely Salamat was sitting" in his shop situated at Naseem Cinema Bazar Gilgit. At about 4:30 pm on 22.11.2010 some unknown persons/culprits opened fires on the above named brother of the complainant which hit on the face of victim namely Salamat Jan and he was shifted/removed to CMH Gilgit for treatment. The victim has no enmity with any person.
After opening fires on the victim the accused/unknown culprits/persons decamped from the place of occurrence.
3. After lodging formal FIR investigation of this case was entrusted to investigation wing Gilgit and JIT was constituted by the competent authority and accordingly JIT started investigation in this case.
4. After completion of investigation conducted by the JIT, in-complete challan against the accused/respondents namely Imran Hussain son of Muhammad Bashir, absconding accused/respondents namely Imran Haider son of Haider Ali, Sajjad son of Yousuf and Muhammad Younus son of Yousuf was submitted in the trial vide Exh PW 12/D on 12-07-2012.
5. During trial the above name absconding accused were declared proclaimed offenders by the learned trial court after fulfilling legal requirements as provided under sections 19(10) of the ATA, 1997 Vide Order Sheet dated 23-07-2012 maintained by the learned trial Court.
6. Formal charge against arrested accused /respondent namely Imran Hussain was framed on 04- 10-2017 wherein the respondent/ accused pleaded not guilty and opted to face trial and charge against the absconding accused namely Imran Mir, Sajjad and Muhammad Younus was framed in absentia. Later on absconding accused Muhammad Younus, Imran Mir were arrested on different occasions and they were formally charged on 29-05-2013, to which the above named accused/respondents pleaded not guilty and claimed trial.
7. After framing of formal charge against the above named three respondents/accused the learned trial Court summoned the P.Ws.
8. The prosecutions in order to prove its case against the accused/respondents has produced as many as 17 PWs in the learned trial Court. After examination/ production of above said 17 PWs the learned special prosecutor Mr.Hafiz Ullah and counsel for complainant, Mr. Burhan Wali Advocates closed prosecution's evidence vide their closing statements dated 09-05-2017.
9. After closing of prosecution's evidence the learned trial court recorded statements of respondents/ accused under section 342, Cr.P.C. wherein the respondents/accused repudiated the charges leveled against them and professed their innocence. However, the respondents/accused did not record their statements on oath under section 340(2), Cr.P.C. and also did not produce any witness in their defence.
10. At the conclusion of the proceedings, after hearing the arguments of the learned counsel for the parties and going through material available on record, the learned trial court has acquitted respondents/accused namely lmran Hussain, Muhammad Younus and Imran Haider vide the impugned Judgment dated 16-10-2017 whereas proclaimed offender namely Sajjad was convicted under section 21-L of the Anti-Terrorism Act, 1997 and sentenced him to undergo rigorous imprisonment for 10 years vide the aforesaid impugned Judgment.
11. The learned Deputy Advocate General appearing on behalf of state contends that the impugned Judgment passed by the learned trial court is contrary to law and facts on the record of the case as such the impugned Judgment passed by learned trial court is not maintainable and liable to be set aside. The learned counsel for state further contends that the respondents/accused have confessed their guilt in their confessional statements recorded by the SSP Gilgit under section 21H of ATA, 1997. The learned Deputy Advocate General further argued that site plan has been prepared on the pointation of respondents/accused and one empty shell of .30 bore pistol has been recovered from the place of occurrence. The learned Dy. Advocate General further contends that immediately after the occurrence the respondents/accused had absconded to avoid their arrest therefore weapons of offence could not be recovered from the respondents. Concluding his arguments the learned Dy. Advocate General argued that the prosecution has proved it case by producing reliable circumstantial evidence in the trial court and the learned trial court has wrongly acquitted the present respondents/accused vide the impugned judgment under appeal.
12. On other hand the learned counsel for the respondents/accused defended the impugned judgment passed by the learned trial court by contending that the respondents/accused were not directly charged in the FIR rather FIR was registered against the unknown person/persons despite the fact that the occurrence was allegedly taken place at main Gilgit Bazaar on day time. The learned counsel for the respondents further argued that there is no single evidence on the record against the respondents except confessional statements of respondents recorded under section 21-H of ATA, 1997 by SP Gilgit which are not admissible in evidence. The learned counsel for the respondents further argued that the provisions of section 164(3), Cr.P.C. were not adhered to while recording confessional statements of respondents by DIG Wasal Khan as it was not explained to them that they are not bound to make such statements, hence the learned trial court has rightly acquitted the above named respondents vide the impugned judgment which may be maintained.
13. We have given our anxious consideration to the submissions made by the learned counsel for the parties and have gone through whole record with their able assistance.
14. Admittedly the respondents accused were not directly charged in the FIR rather FIR was registered by the complainant against the unknown culprits/persons despite the fact that the occurrence was taken place at main Gilgit Bazar at day time i.e. 4:30 pm on 22-11-2010 as evident from the contents of FIR. No eye-witness has witnessed the occurrence and no weapon of offence has neither been recovered from the possession of the respondents nor on their pointation and no any identification period was held/conducted after arrest of the present respondents.
15. In the instant case sole piece of evidence produced by the prosecution in the trial court is confessional statements of the respondents/accused namely Imran Hussain and Muhammad Younus recorded by Mr. Wasal Khan (DIG) under section 21-H on 16-12-2012 and the said confessional statements were retracted by the respondents, hence possibility could not be ruled out that the confessional statements recorded by police officer were tutored one, hence alleged confessional statements which have been made before the Police officer alone has no evidentially value because any confession made before the police is not admissible in evidence unless corroborated by other strong circumstantial evidence.
16. In view of above stated facts voluntarily nature and truthfulness of confessional statements of the respondents recorded under section 21-H. ATA, 1997 by police officer have become highly doubtful and implicit reliance could not be placed upon such statements for sustaining conviction.
17. Upshot of above discussion is that we do not find any material in the instant appeal filed by Dy.
Advocate General on behalf of State which is accordingly dismissed. Consequently the impugned Judgment dated 16.10.2017 passed by the learned Ant-Terrorism Court No. 1 Gilgit-Baltistan is upheld. File.