' RASHID AZIZ KHAN, J.--- Wan alias Papa Dar son of Nazir Ahmad, Noor Hussain son of Ghulam Hussain, Zulfiqar Ali son of Naeem-udDin and Wall Muhammad alias Feeqa son of Kher Din were sent up by Police Station Mughalpura, Lahore, vide case F.I.R. No,556, dated 2-9-1988, for trial for an offence under section 438, P.P.C. The case came up for trial before Special Court, Lahore, constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975. Learned trial Court vide its judgment dated 27-10-1992 convicted and sentenced the accused persons under section 438, P.P.C. As under:--
(a) Irfan alias Papa Dar to seven years' R.I. With a fine of Rs,50,000, or in default one year's R.I.; and
(b) Wali Muhammad, Zulfiqar and Noor Hussain to four years' R.I. Each, with a fine of Rs,10,000 each, or in default of payment of fine, to R.I. For four months each.
' It was further directed that the fine, if recovered, Rs,20,000 out of the total amount shall be paid to Raja Muhammad Yaqoob, P.W., whose bus had been set on fire by the convicts. Challenging their conviction and sentences the convicts have filed separate appeals, i,e. Criminal Appeals Nos.938, 932, 939 and 958 of 1992. Since all the four appeals arise out of the same judgment, therefore, they shall be decided by this judgment.
2. Prosecution story in brief, as disclosed in complaint Exh.P.A. Lodged by Muhammad Yaqoob, P.W.1, on 2-9-1988 at 3-15 p.m., was to the effect that the complainant was owner of bus, bearing No,RIH- 2775. On 2-9-1988 at 2-00 p.m., he was present at his home when Muhammad Azeem, driver of his bus came and informed him that the bus had met with an accident and a man got killed. The first informant alongwith his son Raja Muhammad Wasim Khan reached the spot on motor-cycle. He saw one Papa Dar and another person of brown colour came on a motor-cycle with a plastic jerrican with them. Wali Muhammad, who was present at the spot, took the said jerrican from Papa Dar. Papa Dar and his companions took out the seats of the bus and put them underneath the bus.
Wali Muhammad sprinkled oil from the can on the seats and inside the bus. Thereafter, Papa Dar took off his shirt, Wali Muhammad put it on fire and Papa Dar threw it in the bus. Resultantly, the bus caught fire. The occurrence was witnessed by Muhammad Shafique, Abdul Rashid and Mushtaq Ahmad, apart from the first informant and his son.
' Muhammad Riaz, A.S.I., P.W.2, after recording complaint Exh.PA., took the bus bearing No,RIH-2775, into possession vide memo. Exh.P.B. He also took into possession motor-cycle P.2 vide memo.
Exh.P.C. He partly investigated the case and recorded the statements of the witnesses.
3. Prosecution in support of its case produced five witnesses in all. Ocular account was furnished by Muhammad Yaqub, P.W.1 and his son Naseem, P.W.3. Muhammad Riaz, A.S.I., P.W.2 had partly investigated the case. Talat Mehmood, F.C. P.W.4 had witnessed the recovery of motor-cycle P.2 from Irfan accused and signed the recovery memo. Exh.P.C. Iftikhar Hussain S.I. P.W.5 had registered formal F.I.R. Exh.P.E. On the basis of complaint Exh.PA.
' At the Conclusion of prosecution evidence, appellants were examined without oath, wherein they refuted the prosecution allegations and pleaded innocence. They, however, refused to produce any witness in their defence, nor chose to appear on oath in their defence.
4. It was contended by learned counsel for the appellants that the prosecution had miserably failed to establish its case against the appellants. Submitted that in the F.I.R. Only two appellants were named and, in such circumstances, there should have been an identification parade but the same was not held. Argued that there are number of contradictions in the statements of the eye- witnesses, which render their statements absolutely worthless. The contentions were resisted by learned counsel for the State.
5. We have heard the learned counsel and gone through the evidence with his assistance. The ocular account has been furnished by Muhammad Yaqoob and his son Muhammad Naseem, P.Ws.1 and 3. A perusal of their statements indicates that both of them have contradicted each other to such an extent that no reliance on their statements can be placed. According to Muhammad Yaqoob, P.W.1, he was coming out of the mosque when his driver came and informed that the bus had been set on fire by the accused persons. On the other hand, first informant's son Muhammad Naseem stated that conductor of the bus came and informed his father that some boys had set the bus on fire. If this part of the statements of both the witnesses is accepted, one thing becomes crystal clear that the bus had been set on fire before either of them reached the spot. Muhammad Yaqoob P.W.1 further stated in examination-in-chief that when he reached the spot, The bus was on fire and the police was also standing nearby. On the other hand, Naseem, P.W.3, in examination-in-chief, contradicting his father stated that the conductor of the bus informed that the bus was set on fire; while his father, P.W.1, stated that the Driver of the bus came and informed about the incident. P.W.3 stated that when they reached the spot, they saw Papa taking out petrol from his motorcycle. This is in conflict with the version given in the F.I.R., according to which petrol was brought by Papa appellant in a plastic jerrican. We have carefully gone through the entire record and find no identification parade qua the accused persons, not named in the F.I.R., was held. There is no indication how they were held responsible for committing the offence. It appears that the occurrence was not witnessed by either of the alleged eye-witnesses, and, in such circumstances, no reliance on their statements can be placed qua the involvement of the appellants.
' For what has been discussed above, we have no hesitation in arriving at the conclusion that the prosecution has not been able to prove its case against the appellants at all. Therefore, their appeals are accepted and their convictions are set aside. They shall be released forthwith if not required in any case.