' RAUF AHMED SHEIKH, J.---Gulfraz Khan Abbasi, the complainant of case F.I.R. No,343 dated 9-12- 1996 Police Station Industrial Area, Islamabad, has assailed the vires of the judgment dated 23-2- 2000 recorded by the learned Sessions Judge, Islamabad, whereby the respondents were acquitted of the charge under sections 302/201/34, P.P.C. For causing Qatl-e-amd of Niaz Abbasi and Muhammad Munir and subsequently causing disappearance of the prosecution evidence.
2. The prosecution version, in brief, as set forth in the F.I.R. (Exh. PC) recorded on the statement of the complainant/appellant (Exh.PA) is that the complainant had two other brothers. Imtiaz Khan Abbasi was a school teacher whereas he and his brother Niaz Khan Abbasi along with Wajid Kiani and Sajid Kiani, resident- of G-7/4, Islamabad, used to deal in property. On 3-11-1996 at about 8-00 p.m. All the three brothers were at their home when a telphone call was received by Imtiaz Khan Abbasi and from the other end Wajid Kiani asked to connect him Niaz Khan Abbasi so Niaz Khan Abbasi talked to him who was told by Wajid that a bargain of land has been struck so he should come with sum of Rs, 200,000 as earnest money. Thereafter Sajid Kiani also talked on telephone.
Niaz Khan Abbasi took Rs, 200,000 and went to house of Wajid Kiani on his Car No, RIF-6644 along with his maternal uncle Muhammad Munir. Thereafter Mumtaz Khan son of Zaman Khan and Kamran son of Manzoor of the village told that they had seen Niaz Abbasi, Wajid Kiani and Muhammad Munir going from Aabpara to Faizabad at about 11-00 p.m. In Niaz Abbasi's car whereas Sajid Kiani and two known persons were also going in Sajid Kiani's car. On 4-11-1996 he received an information that dead bodies of both Niaz Khan Abbasi and Muhammad Munir were lying in his car in the area of Mohra Khartana Police Station Kalar Syedan. The motive was stated to be an alteration over money, which was patched up by the respectables. It was alleged that for this grudge, Wajid Kiani and Sajid Kiani along with their other accomplices caused Qatl-e-amd of Niaz Abbasi and Muhammad Munir after consultation with each other.
3. The respondents were arrested and sent up to face trial whereas Naveed their co-accused was declared as proclaimed offender. After conclusion of the trial, the learned Sessions Judge, Islamabad, acquitted all the three accused/respondents.
4. Learned counsel for the appellant has contended that although there was no ocular account but prosecution evidence regarding extrajudicial confession, last seen, burning of clothes by respondents Nos. 1 and 2 and Naveed, subsequent recovery of ash from the roof of the house under occupation of the respondents and telephonic conversation were sufficient to prove that the respondents had caused qatl-e-amd of both the innocent persons. It is contended that there was no reason for the complainant and P. Ws. To implicate and depose falsely against the respondents and that the suggestion given during cross-examination on. P.W.5 and P.W.7 proved that the call was made by the respondent Wajid Kiani. He concluded that the learned trial Court had failed. To appreciate the evidence in true perspective and the findings of acquittal recorded by it are not sustainable. In support of the contentions raised, reliance has been placed on Allah Ditta v. The Crown (1969 SCM R 558) and Allah Ditto v. The State (1968 SCM R 378).
5. Controverting these arguments, learned counsel for the respondents has contended that principles and criteria to decide the appeal against acquittal, is different from that of appeal against conviction and the judgment of acquittal can only be interfered with, if it is found on the face of it to be perverse, arbitrary, capricious or speculative. It is urged that even on appraisal of evidence if another view could be formed, the judgment of acquittal cannot be interfered with. In support of the arguments, he has placed reliance on State v. Khuda Dad and others (2004 SCM R 425), Mst. Moodan v. Saifullah and 2 others (2004 SCM R 923) and Riaz Hussain v. Khalid Pervaiz and others (2005 SCM R 1092). It is urged that the evidence led by the prosecution did not inspire confidence at all and lacked credence so it was rightly disbelieved by the learned trial Court. It is then` urged that mere fact that the witnesses had no enmity with the respondents could not be sufficient to prove their truthfulness as the intrinsic value of the evidence is to be kept in view while deciding a criminal case. In this respect, reliance is placed on Muhammad Iqbal v. The State (1984 SCM R 930).
6. The prosecution case mainly hinges upon the statement of Muhammad Akhlaq (P.W.6) who had stated that on 17-12-1996 Sajid Kiani respondent along with his uncle Muhammad Arif came to his house at Samli Tajall where Sajid Kiani made extra-judicial confession. This witness had filed an affidavit (Exh. P.W.6/A) on 31-12-1996 and stated in cross-examination that all the facts known to him about this case by that day were mentioned in it. He had not mentioned the arrival of Sajid Kiani to his house or making of extra-judicial confession in this affidavit, although, according to him, it was allegedly made on 17-12-1996. This witness is brother-in-law of Niaz Abbasi deceased.
He had stated that when the extra-judicial confession was made before him, he did not make any contact with the Police although telephone facility was available in his village. The fact that he did not mention making of extra-judicial confession on 17-12-1996 in his affidavit dated 31-12-1996 by itself is sufficient to prove that he had tailored a piece of evidence just to lend support to the prosecution version. The learned trial Court rightly disbelieved him.
7. Then the prosecution relies heavily on evidence regarding deceased persons having been seen alive lastly with the respondents as adduced by Mumtaz Khan (P.W.10) and Kamran Khan (P.W.14).
Both of them have stated that on 3-11-1996 they were present in Aabpara Market, Islamabad, to purchase some articles where they had seen Niaz Abbasi in his Car No,RIF-6644 who was travelling with Muhammad Munir and Wajid Kiani whereas they were being followed by Sajid Kiani along with two other unknown persons in their Car No, LEW-8989. P.W.10 is brother of Muhammad Munir deceased whereas Kaniran Khan (P.W.14) is son-in-law of Niaz Abbasi deceased. P.W.10 had appeared in the court on 17-6-1999 and stated that his village is 50 kilometres from Aabpara Market but when asked about it he wilfully denied, which proved to be false on confrontation. He could not tell the name of the lady, to see whom, he had gone to the hospital. He admitted that the visiting hours were 3-00 to 4-00 p.m. And he was not permitted to see earlier also so his visit in the late hours of the night in the hospital to see a lady patient does not appear to be plausible and it appears that he has made this excuse just to prove his presence at Aabpara. Similarly Kamran Khan (P.W.14) who is also very close relative of one of the deceased is a Government servant but posed himself to be a taxi driver. He made dishonest improvements. He stated that he had taken Mumtaz Khan on his taxi but presence of Mumtaz Khan is doubtful so his own presence is not established. Moreover during the night if the car passes at reasonable speed from some distance, it is not possible to identify all the persons sitting in it so their evidence appears to be unnatural also. The learned trial Court rightly disbelieved them and findings of the learned trial Court do not call for any interference.
8. Imtiaz Khan (P.W.7) who allegedly received a telephone call has not stated that he was familiar with the voice of Wajid Kiani. The identification through voice on telephone does not prove anything conclusively. The learned counsel for the complainant/appellant has vehemently contended that the suggestion that someone else had made a call falsely by posing himself to be Wajid Kiani proves the prosecution version is without force. The other argument of the learned counsel for the complainant/appellant that it was suggested to the P. Ws. That they were looted by some unknown persons so the prosecution version regarding having been called by Wajid Kiani respondent and subsequent murder at the hands of respondents is established also cannot be accepted because of the inherent weaknesses in the prosecution evidence. It is an established law that the prosecution has to prove its own case and cannot take benefit of denied suggestions.
9. Then the prosecution has heavily placed reliance on the statements of Masood Ahmad (P.W.3) and Raja Amjad Nazir (P.W.2). Raja Amjad Nazir (P.W.2) stated that he heard the report of fire from Street No,3 in Sector 1-10/2, Islamabad and that ash was secured by the I.O. From the roof of House No, 1021, Street No,3, Sector 1-10/2, Islamabad, whereas Masood Ahmad stated that on 4-11-1996 he had seen accused Rashid Nazir and Wajid while burning filthy clothes. P.W.3 could not give any proof of his residence at House No,1023 as contended by him. He could not deny that the house was, in fact, acquired by the Federal Government and allotted to Javed Ali a Government servant.
When the notice was sent to him at this address mentioned in the Court, it was received back with the report of the Process Server that he did not reside there and actually one Javed lived there. As an employee of ISI, he was supposed to give his address in the office and he admitted that he never gave his address as was mentioned in his statement. This clearly shows that this witness has not spoken the truth and does not inspire confidence. The statement of P.W.2 regarding recovery of ash at the instance of Wajid Kiani also cannot be believed for many reasons because it is not proved that the said house is owned or was in occupation of the respondents. There are material discrepancies in the statements of this witness and the I.O. The witness stated that the I.O. Had a key of the house and he opened it whereas the I.O. Appeared as P.W.15 and stated that he called unconcerned man, whose name could not be told and he opened the house without key. Moreover, the witness has stated that till 9-12-1996 the names of Amjad Nazir and Ghulam Mustafa did not exist in the file. The recovery of ash and alleged report of fire from the house is not proved and the prosecution version has rightly been disbelieved by the learned trial Court. The motive as alleged is also not established. The learned counsel for the complainant/appellant has contended that the weaknesses of the motive or the fact that it is established is not sufficient to dislodge the prosecution case. In this case, there is no evidence available on the record to connect the accused persons with the commission of the offence as alleged by the prosecution so the fact that the motive is not established can also not lose the sight.
10. For all what has been observed above, we are of the considered opinion that the learned trial Court rightly appraised the evidence available on the record and arrived at correct conclusion. By no stretch of imagination, the judgment recorded by the learned trial Court appears to be perverse, arbitrary, capricious or speculative. The appeal is without merits and the same is hereby dismissed.