2019 P Cr. L J 297
[Balochistan]
Before Naeem Akhtar Afghan and Abdullah Baloch, JJ
The STATE through Additional Prosecutor -General ---Appellant
Versus
FAIZ MUHAMMAD alias FAIZULLAH and others ---Respondents
Criminal Acquittal Appeal No. 302 of 2013, decided on 13th June, 2018.
Penal Code (XLV of 1860) ---
----S. 365 -A---Anti -Terrorism Act (XXVII of 1997), Ss. 6(2)(e) & 25 ---Criminal
Procedure Code (V of 1898), S. 417---Kidnapping for ransom ---Appeal against acquittal --
-Appreciation of evidence ---Death of abductee--- Forensic evidence---Authorities assailed
order passed by Trial Court under S. 265- K, Cr.P.C. where accused were acquitted of
charge of murder of abductee after kidnapping ---Authorities contested that extra -judicial
confession of accused as well as recovery of dead body of abductee upon pointing of
accused were sufficient grounds for conviction ---Validity ---Extra -judicial confession as
well as confession of accused persons revealed discovery of new facts as well as discovery of remains of abduc tee---Forensic Science Laboratory report received in
negative had diminished evidentiary value of both extra -judicial confession and
confessional statement of accused ---Such statements were not recorded voluntarily,
otherwise accused could have pointed out exact grave of deceased and discovered remains
which could have matched with blood relations ---Case of prosecution was doubtful and
Trial Court while delivering order of acquittal had rightly extended benefits of such doubts in favour of accused and right ly they were acquitted of the charge---Accused, after
acquittal earned presumption of double innocence and acquittal orders were not interfered with until and unless it was proved on record that same was perverse, contrary to record, fanciful and not susta inable ---High Court declined to interfere in judgment passed by
Trial Court as same was neither perverse, fanciful nor ridiculous or contrary to record rather same was based on proper appraisal of material available on record ---Appeal was
dismissed in circ umstances.
Abdul Latif Kakar, Additional P.- G. for Appellant/State.
Date of hearing: 10th May, 2017.
JUDGMENT
ABDULLAH BALOCH, J. ---This judgment disposes of Criminal Acquittal
Appeal No.302 of 2013 filed by the State through Additional Prosecutor Gene ral (ATA),
against the judgment dated 17th September, 2013 (hereinafter referred as, "the impugned judgment") passed by learned Special Judge Anti -Terrorism Court -II Quetta (hereinafter
referred as, "the trial Court"), whereby the accused (respondents) wer e acquitted of the
charge under sections 365- A, 109, P.P.C. read with section 6(2)(e) of Anti -Terrorism Act,
1997.
2. Facts of the case are that on 24th February, 2010, the complainant Taj Muhammad
son of Wali Muhammad, lodged FIR No.06 of 2010 at police s tation Dalbandin under
sections 365- A, 109, P.P.C. read with section 6(2)(e) of Anti -Terrorism Act, 1997
(hereinafter, "A.T.A., 1997"), stating therein that he is actual resident of Killi Haji Baz
Muhammad Dalbandin and is retired government servant from R ailway Department. On
the said date at about 7.15 p.m. he was sitting in the office of Dalbandin Petroleum Service situated at Bazar Dalbandin, when one single door pickup having mud on it came at Petrol Pump and from the pickup 7/8 persons having muffled faces being armed with weapons arms alighted from the said pickup and entered in the office of petrol pump and forcibly abducted the owner of the Petrol Pump namely Haji Mehmood- ul-Hassan son of
Muhammad Sharif and boarded him in the pick- up and decamped f rom the scene of
occurrence.
3. In pursuance of above FIR, investigation was entrusted to PW -11 Javed Iqbal,
S.I./I.O., who during investigation, visited the site and prepared site plan; recorded the statements of witnesses under section 161, Cr.P.C.: PW -12 Abdul Wahid, IP is the second
I.O., who recorded the statement of wife of abductee namely Mst. Hajira; PW -14 Malik
Abdul Qayyum, SI, is the 3rd Investigating Officer of the case, who during investigation recorded the disclosure of the accused Yar Muhamma d and Faiz Muhammad under the
supervision of DSP Din Muhammad; obtained the warrants of arrest of absconding accused; PW -13 Abid Nawab, IP is the 4th I.O. of the case, who during investigation
recorded the disclosure of the accused Faiz Muhammad and Yar Mu hammad and pursuant
to such acquittal under the supervision of DSP Din Muhammad went to Dalbandin and on
the pointation of accused exhumed the dead body of deceased from grave and along with the blood samples of the son and the sister of abductee sent the bones to FSL Punjab for DNA and on completion of investigation submitted the challan in the trial Court.
4. At the trial the accused Niaz Muhammad alias Niazo, Wali Muhammad alias
Walika, Moula Dad, Abdul Ghani and Muhammad Rafique were declared as proclai med
offenders by the trial Court by initiating proceedings under section 88 and 88(sic.), Cr.P.C. The trial commenced to the extent of accused Sanaullah son of Sakhi Dost Jan, Faiz Muhammad alias Faizullah son of Allah Noor and Yar Muhammad son of Muhammad Gul. During trial of the case, the accused Sanaullah was acquitted of the
charge by the learned trial Court under section 265 -K, Cr.P.C., vide order dated 11th
January 2013, while the prosecution to the extent of accused (respondents) Faiz Muhammad alias Faizullah and Yar Muhammad, the prosecution has produced fourteen (14) witnesses. Thereafter, the accused (respondents) were examined under section 342, Cr.P.C. On conclusion of trial and after hearing arguments, the trial Court has acquitted of the charge to both the accused (respondents) Faiz Muhammad alias Faizullah. Yar
Muhammad son of Muhammad Gul and to the absconding accused Niaz Muhammad alias Niazo, Wali Muhammad alias Walika, Moula Dad, Abdul Ghani and Muhammad Rafique, vide judgment dated 17th Se ptember, 2013. Whereafter, the State through
Additional Prosecutor General (A.T.A.) has filed the instant appeal.
5. Perusal of record reveals that after admission of this appeal for regular hearing,
notices of the accused (respondents) were issued and tim e and again were repeated, but
could not be served, however, report of learned Additional Sessions Judge Dalbandin was received on 24th May, 2016, which reflects that the accused Maula Dad and Muhammad
Rafique have passed away, while the remaining accused persons are not traceable and
have left the area, thus we have left with no other option, but to hear the arguments of learned Additional Prosecutor General.
6. Learned Additional Prosecutor General contended that the impugned judgment of
acquittal passed by the learned trial Court is perverse and contrary to material available on record; that the prosecution has produced overwhelming and confidence inspiring evidence establishing the charge of abduction of the abductee by all the accused p ersons
with the connivance of each other and his murder during the abduction as well as the discovery of his dead body on the pointation of accused (respondents); that the confessional statement as well as the disclosures of the accused (respondents) have also
strengthened the case of prosecution, thus keeping in view all the facts, circumstances and in presence of sufficient solid and direct evidence, the accused (respondents) were required to be convicted and sentenced in accordance with law, but they wer e acquitted of
the charge on the grounds, not available in favour of accused (respondents), thus they
deserve to be convicted and sentenced in accordance with law.
7. Heard the learned counsel for parties and perused the record with their valuable
assistan ce. Perusal of record justifies the impugned judgment of acquittal recorded by the
learned trial Court in favour of accused respondents. The prosecution in order to
substantiate the charge has produced the evidence of fourteen (14) witnesses, but none of the witnesses have directly implicated the accused (respondents) with the commission of
charge.
8. It has been observed that the FIR was lodged on the complaint of Taj Muhammad
son of Wali Muhammad, according to whom on the night of occurrence at about 7.15 p.m.
he was sitting in the office of Petrol Pump owned by the abductee Mehmood- ul-Hassan,
when all of sudden 7/8 persons entered in the office and on gun point abducted the abductee. According to the contents of FIR all the persons were having masks on their faces. The contents of FIR are silent with regard to any clue including the physique or structure of the culprits. Likewise, this witness appeared in the Court as PW -5 and he
mostly reiterated the contents of his fard -e-bayan. The statement of this wit ness being
devoid of any clue in respect of culprits cannot help the case of prosecution.
9. Similarly, PW -1 Muhammad Hayat being the employee in the said Petrol Pump
has not disclosed about the accused persons rather according to his own showing at the relevant time he had gone to bring water. PW -1 has also contradicted the statement of
complainant (PW -5). The statement of PW -2 Amanullah is also on the same footings to
that of the statement of PW -1. This witness though has claimed his presence at the site
prior to the incident, stated that the abductee had given him Rs.100/ - with the directions
to bring change of it from nearby the shop. He went to make changes and on his return, it revealed to him that the unknown culprits have abducted the abductee. The e vidence of
this witness is not supporting the case of prosecution. PW -3 Muhammad Ismail claiming
his presence prior to the incident at the place of occurrence, but according to him he went out for purchasing household articles and on his return, he came to know about the
incident.
10. The most important evidence produced by the prosecution in the shape of
statement of PW -4 Hajira Mirza, being the wife of abductee and the statement of PW -6
Muhammad Yahya, being the brother of PW -4. According to both the witnesses, on
receipt of information they reached at Dalbandin and made inquiries about the
whereabouts of the abductee and the culprits, but they have failed to get any clue. Both the witnesses have stated that the culprits had contacted them on satellite phone through the abductee, whereby the abductee requested for arranging of ransom amount of Rs.90,00,000/ - and showing of their inability by both the witnesses. The admitted feature
of the case is that the evidence of both the PW -4 and PW 6 is also not helpf ul to the case
of prosecution in any manner as both the witnesses were not present at the relevant place and relevant time, when the incident had taken place. Even otherwise, nothing has come on record establishing the fact that the accused (respondents) w ere making phone calls or
pressing the abductee to approach his family members to making arrangement of ransom amount.
11. Now adverting to the extra -judicial confession of accused Yar Muhammad and
Faiz Muhammad recorded under the supervision of Din Muhamm ad DSP and in presence
of PW -9 Abdul Ghafoor and the concessional statement of the accused (respondent) Yar
Muhammad recorded by PW -10 Faisal Hameed Judicial Magistrate. Perusal of both the
extra- judicial confession as well as the confessional statement of confessional statement
would reflect that the accused (respondents) Yar Muhammad and Faiz Muhammad have
purportedly confessed their guilt by disclosure the names of their remaining accomplices
and stated that the abduction of the abductee was made at the instigation of Sanaullah son of Sakhi Dost Jan, however, after two months of the alleged abduction, the abductee Mehmood- ul-Hassan due to illness died in their detention, thus they buried him in the
graveyard. Perusal of record further reveals that the pol ice under the supervision of
Judicial Magistrate and on the pointation of both the accused (respondents) dig out a grave and discovered the human bones, which were taken into possession by the police.
Whereafter, the recovered bones along with the blood sa mples of the son of abductee
namely Ameer Hamza and sister Saeeda Jan Gul were sent to Punjab Forensic Science Agency for DNA analysis. After examination, the analysis report was issued and exhibited in the Court as Ex.P/13- C, perusal of which reveals that both the blood samples
of Ameer Hamza (son) and Saeeda Jan Gul (sister) were not matched and it was opined that, "the house of the partial DNA profile of unknown male origin, obtained from femur bones (item # 2), is NOT THE BIOLOGICAL FATHER of Ameer Hamz a son of the
deceased". Likewise, it has further been held that, "The source of the partial DNA profile of unknown male origin, obtained from femur bones (item # 2), is UNRELATED to Saeeda Jan Gul, sister of the deceased.
12. It has been observed that though the extra -judicial confession as well as the
confession of the accused persons reveals of discovery of new facts as well as the discovery of remaining of abductee, but the FSL report received in negative, have diminished the evidentiary value of both the extra -judicial confession and the
confessional statement of accused (respondents) and it appears that the same were not recorded voluntarily, otherwise the accused could have pointed out the exact grave of the deceased and the discovered remaining could have matched with the blood relations.
13. The overall reappraisal of prosecution evidence is suggestive of the fact that the
prosecution has absolutely failed to produce any convincing, confidence inspiring or direct evidence against the accused (responde nts) either establishing the abduction of
abductee Mehmood -ul Hassan or his death during incarceration period or his burial by the
culprits. The medical evidence produced by the prosecution has also negated the case of prosecution. Admittedly, the prosecut ion had badly failed to establish the charge against
the accused (respondents) beyond the shadow of reasonable doubt. The case of
prosecution is doubtful and the learned trial Court while delivering the impugned order of acquittal has rightly extended the benefits of such doubts in favour of the accused
(respondents) and rightly they were acquitted of the charge. It is well settled principle of law that accused after acquittal earns the presumption of double innocence and the acquittal orders are not interf ered with, until and unless it is proved on record that the
same is perverse, contrary to record, fanciful and not sustainable, however, the perusal of record and in view of discussion made hereinabove it is clear that the impugned judgment is neither perverse, fanciful nor ridiculous or contrary to record rather the same is based on proper appraisal of material available on record and is not open for interfere by this Court.
For the above reasons, the appeal being devoid of merits is dismissed.
MH/60/Bal. Appeal dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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