ABDULLAH BALOCH, J.---This judgment disposes of Criminal Acquittal Appeal No.302 of 2013 filed by the State through Additional Prosecutor General (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) were 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 station 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 Railway 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 from 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 Muhammad 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 Muhammad 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 proclaimed 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 Mouli Dad, Abdul Ghani and Muhammad Rafique, vide judgment dated 17th September, 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 time 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 persons 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 were 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 assistance.
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 witness 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 evidence 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 PW6 is also not helpful 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) were 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 Muhammad 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 police 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 samples 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 Hamza 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 (respondents) 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 prosecution 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 interfered 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.