' MIAN ABDUL KHALIQ, J.---Shabbir Hussain son of 11am Din, aged 24 years and Sultan Ahmad son of Ali Ahmad, aged 23 years, were tried by Ch. Ghulam Sarwar, learned Judge, Special Court No,6, Suppression of Terrorist Activities, Lahore Division, Lahore, who vide his impugned judgment dated 29-7-1992 convicted and sentenced them under section 302/34, P.P.C. To undergo imprisonment for life as Tazeer each, under section 324/34 P.P.C. To 5 years' R.I. Each, and under section 436/34, P.P.C. To imprisonment for life each and a fine of Rs,25,000 each, in default whereof to suffer R.I. For 2 years each. The amount of fine, if realized, was directed to be given to Mst. Shamim Akhtar (P.W.5) as compensation under section 544-A, Cr.P.C. The sentences were directed to run 'concurrently.
They were also extended the benefit of section 382-B, Cr.P.C. The appellants preferred separate Criminal Appeals Nos.619 of 1992 and 735/92 respectively. The complainant has also filed Criminal Revision No,635 of 1992 for enhancement of sentence under section 302/34, P.P.C. From imprisonment for life as Tazir to death. The criminal appeals and the criminal revision arise out of the same impugned judgment, shall be disposed of by this judgment.
2. The prosecution case in brief as unfolded in F.I.R. Exh.PF/1 recorded on the basis of the statement Exh.PF of Faqir Muhammad (P.W.8) is to the effect that he was running a meat shop with his deceased younger brother Muhammad Ramzan at Akbar Road, Okara, who was married with Mst.
Shamim Akhtar daughter of Talib Hussain about 7/8 months earlier and were living in a separate house on rent in Katchi Abadi, Mansoorabad, Okara near the house of the complainant. On the night between 23/24-1-1992 at about 1-00 a.m. (night) the complainant was awakened due to the noise and reached the house of his brother Muhammad Ramzan deceased and besides him P.W.4 Muhammad Akhtar, C.W.1 Muhammad Akram, neighbours alongwith the complainant entered the house of the deceased. The outer door of the residential room of the deceased was bolted from outside. They entered the room and witnessed Muhammad Ramzan deceased and his wife Mst.
Shamim Akhtar lying burnt with fire, who were taken out in injured condition. There was a hole in the roof of the room from where the accused after sprinkling the kerosene oil and setting on fire the gunny bag dropped the same from the hole, due to which the deceased and P.W.5 Mst. Shamim Akhtar sleeping in the room were burnt. The complainant suspected that the appellants with the intention of killing the deceased and P.W.5 had committed the offence. The appellants had been visiting the house of the deceased and 3/4 days earlier to the present occurrence in his presence the appellants had come to the house of the deceased and had threatened him to kill. The complainant took the deceased and P.W.5 in injured condition to the Civil Hospital, Okara and got them admitted and after receiving the Medico legal Report of the injured produced the same before Sher Muhammad S.I (P.W.6). The Doctor had shifted both the injured to the Mayo Hospital, Lahore. P.W.6 Sher Muhammad Si. In the Civil Hospital, Okara at 4-20 a.m. On 24-1-1992 had reduced into writing the statement Exh.PF of the complainant P.W.8 Faqir Muhammad and sent the same to the police station A-Division, Okara, where P.W.3 Abdul Haq, A.S.I./Moharrir on its basis drafted the F.I.R. Exh.PF/1.
3. P.W.6 Sher Muhammad S.I. Reached the place of occurrence, inspected the spot, prepared rough site plan Exh.PH, collected blade of Kassi Exh.P.1, a tin of kerosene Exh.P.2 (empty) from the roof of the house of Muhammad Ramzan deceased and a burnt gunny bag Exh.P.3 from inside the room and a plastic string Exh.P.4 from the handle of the door of the house fitted on its outside and secured the above mentioned articles vide memo Exh.PG. He arrested Shabbir Hussain appellant on 1-2-1992. He submitted applications Exhs.PJ and PK to the Doctors to seek their opinion whether Mst. Shamim Akhtar and Muhammad Ramzan injured were fit to make statement and after having permission had recorded their statements. Injured Muhammad Ramzan died in the Mayo Hospital, Lahore on 9-2-1992. P.W.6 Sher Muhammad S.I. Reached Mayo Hospital, prepared inquest report Exh.PM and dispatched the dead body to the mortuary at Okara.
4. The appellants were challenged and sent up for trial. They were charged for the commission of Qatl-e-Amad of Muhammad Ramzan deceased in furtherance of their common intention under sections 302/34, 324/34 and 436/34, P.P.C. To which they denied and claimed trial.
5. The prosecution examined 9 P.Ws in all to substantiate its case. P.W.1 Dr. Muhammad Azam Khan on 24-1-1992 at 1-30 a.m. Medically examined Mst Shamim Akhtar and found burns involving nose, right side of the face, left cheek, whole back of chest and abdomen, left upper and forearm and hand, right forearm, left thigh, leg and foot, and right foot. The injuries were kept under observation.
The probable duration of injuries was within two hours and the kind of weapon was declared with inflammable liquid. The patient was referred to Mayo Hospital, Lahore.
' On the same day the Doctor medically examined Muhammad Ramzan and found the following injuries on his person:- ' Burns involving face, head, neck, front and back chest and abdomen, both arms, upper parts of both feet, hair of beard and head burnt and singed.
' The injuries were kept under observation. The probable duration of injuries was within 2 hours. The kind of weapon was declared with some inflammable liquid. The patient was referred to Burn Unit, Mayo Hospital, and Lahore.
' On 10-2-1992 at 10.30 a.m. P.W.1 Dr. Muhammad Azam Khan conducted post-mortem examination of Muhammad Ramzan deceased and noted the following points:-
(1) A dead body of a young man with weak stature, pale color of the face, eyes open, pupils bilated, hand semi-open, rigor mortis and postmortem staining was present.
(2) On examination old burnt areas of skin involving face, neck, back of ' Chest, front of chest, lower part and front of abdomen. Both arms, dorsal surface of both feet, lateral side of left thigh, small area on anteroom-medial aspect of right knee.
(3) On internal examination walls, ribs and cartilages in the thorax were healthy. Pleurae, larynx and trachea were healthy. Right lung was healthy and having small amount of blood on cutting. Same was the condition of left lung. Paricardium and heart was healthy and there was small amount of blood in the heart. Blood vessels were healthy.
(4) Scalp, skull were healthy. Brain was slightly congested. Vertebrae and spinal cord was not opened.
(5) All the viscera in the abdomen were healthy except slight discoloration under burnt area in parietal peritoneum and slightly congested kidneys. Stomach was containing approximately 3 ounces of yellowish fluid.
(6) No fracture of dislocation was noted.
(7) After external and internal post-mortem examination the viscera's stomach, large and small intestines, liver, spleen, kidney, lungs are taken and sent to the Chemical Examiner.
' The probable time that elapsed between injuries and death was declared 18 days and the time between the death and the post-mortem within 24 hours. Vide Chemical Examiner Report No,674/PV dated 16-2-1992 no poison was detected in any viscera. In his opinion the cause of death was shock as a result of the complications of excessive burn which was approximately 70 per cent and this was sufficient to cause death in the ordinary course of nature. The injuries were ante-mortem and were caused due to burn.
6. P.W.4 Muhammad Akhtar, a neighbored was sleeping in his house at the relevant time and was attracted to the roof-top of the house of the deceased by an alarm, where Muhammad Akram (C.W.1) also reached. He witnessed that some persons were extinguishing the fire through hole of the roof-top by throwing water over the fire in the room of Muhammad Ramzan deceased. He also threw water to extinguish the fire. When he came down in the room, he witnessed. Muhammad Ramzan deceased and P.W.5 Mst. Shamim Akhtar in injured condition due to fire burns. He did not see anybody either throwing kerosene oil on the deceased and Mst. Shamim Akhtar (P.W.5) or setting them on fire. He had witnessed the recovery of articles P.1 to P.4 vide memo Exh.PG attested by him. P.W.5 Mst. Shamim Akhtar wife of the deceased stated that the appellants were the friends of the deceased and she did not know if they had any grouse against the deceased. Four days prior to the occurrence at about 4-00 p.m. Shabbir Hussain and Sultan Ahmad appellants came to her house and the deceased took it ill and asked them not to visit his house. The appellants left the house threatening to teach them a lesson by killing them. At the relevant time she was sleeping with the deceased husband in the room when the appellants dropped a burning gunny bag and kerosene oil through a hole made in the roof over them and the flames engulfed the whole room.
There was suffocation. She tried to open the do& of the room but it was bolted from outside, so she could not open the same. She saw both the appellants through hole in the light of the flames and she also heard them saying that they had taken the revenge. She had identified the appellants as well.
7. P.W.6 Sher Muhammad drafted the complaint Exh. PF on the statement of P.W.8 Faqir Muhammad and sent the same to the police station for registration of the case. He secured articles P.1 to P.4 from the spot vide memo Exh.PG. He arrested appellant Shabbir Hussain on 1-2-1992 and submitted applications Exh.PJ and PK to the Doctors to seek their opinion whether Mst. Shamim Akhtar and Muhammad Ramzan alias Janni deceased were fit to make statements. The Doctors had opined that they were fit to make statements. He recorded the statement &Muhammad Ramzan deceased Exh.PL. P.W.7 Muhammad Ishaque Nasir prepared site plans Exh. PN and PN/1.
P.W.8 Faqir Muhammad is the complainant and on his statement Exh.PF formal F.I.R. Exh.PF/1 was recorded. He narrated the facts mentioned by him in the statement Exh.PF. P.W.9 Dr. Moeed Iqbal Qureshi stated that Sher Muhammad S.I.(P.W.6) had produced before him application Exh.PK to seek his opinion regarding the fitness of Muhammad Ramzan to make statement and he opined vide Exh.P.K./1 that the patient was fit to make statement.
8. The appellants when examined under section 342, Cr.P.C. Denied the prosecution evidence against them and stated that the deceased was carrying on with Mst. Shamim Akhtar, who was a woman of easy virtue and was not only having illicit relations with the deceased, but had also illicit relations with others. The family members of the deceased particularly his brother, complainant P.W.8 Faqir Muhammad were of the view that the appellants were responsible for putting Muhammad Ramzan deceased on wrong track. Deceased Muhammad Ramzan and Mst. Shamim Akhtar used to take liquor and used to sleep on one cot, although they were not married. The present occurrence was just accidental due to fire by the flame of cigarette or this was done by Shaukat, the husband of Shamim Akhtar (P.W.5) or some other rival. They had been falsely involved and found innocent in this case during investigation. They produced D.W.1 Mehr Abdul Rehman Sial, D.S.P., D.W.2 Habib Anwar Shah, D.S.P., and C.W.1 Muhammad Akram and C.W.2 Taj Din, Inspector/S.H.O. In their defence. D.W.1 Mehr Abdul Rehman Sial stated that he had agreed with the investigation conducted by Taj Din Inspector/S.H.O. (C.W.2) and Habib Anwar Shah D.S.P. (D.W.2).
D.W. 2 Habib Anwar Shah D.S.P. Stated that he investigated the case and had directed to challan the accused. He endorsed the findings of Taj Din Inspector/S.H.O. (C.W.2) regarding the innocence of both the accused. C.W.1 Muhammad Akram (P.W.) given up by the prosecution) stated that at the relevant time he reached the spot and witnessed 15/16 Mohalladars extinguishing the fire by sprinkling water. It was raining and both the injured gained consciousness. He inquired from Muhammad Ramzan deceased who was confused and stated that he did not know who had put the house on fire. During cross-examination he stated that it was dark and raining. He also stated that deceased Muhammad Ramzan and injured Mst. Shamim Akhtar used to smoke Churs through cigarettes. Aslam, brother of Mst. Shamim Akhtar (P.W.5) used to deal in narcotics. (P.W.5 had refuted the suggestion that Aslam was her brother who dealt in narcotics). It was correct that an application was made by the Mohalladars that Aslam used to sell narcotics and indulged in prostitution through his sister and daughter. During cross-examination by the District Attorney he stated that it was a dark night and he could not notice the presence of Faqir Muhammad (P.W.8) at the spot as many persons were present there and when he reached the house the fire was on and the flames were rising. The hole in the ceiling was not in round shape, but it was about 6/7 inches in length and the same was its width. The people were sprinkling water over it from the roof. Faqir Muhammad (P.W.8) did not inquire anything from Muhammad Ramzan deceased in his presence about the culprits, as both of them were conscious. All the Mohalladars knew that prostitution was going on in the house of Mst. Shamim Akhtar (P.W.5). Exh.PL, the statement of the deceased recorded by P.W.6 Sher Muhammad S.I. Was neither on the judicial file nor its copy was furnished to the appellant. The same was placed on record during cross-examination of P.W.6 Sher Muhammad S.I. By the defense counsel. The appellants never knew about the existence of such statement, which cannot be treated as dying declaration.
9. C.W.2 Taj Din, Inspector/S.H.O. Stated that Akhtar and Muhammad Akram, eye-witnesses did not support the prosecution version in their statements. He submitted his report to the D.S.P. Habib Anwar Shah (D.W.2) who also verified the investigation and agreed that the appellants were innocent. Sultan Ahmad appellant had produced 21 witnesses in support of his innocence and taken up the plea before him that, he was present in the house of one Pir Hasan Ali Shah Bodla on the night of occurrence on Akbar Road at a distance of 5 miles from Okara, and the same was supported by Pir Hassan Ali Shah and others. D.W.1 Abdul Rehman D.S.P.Agreed with the investigation conducted by Taj Din, Inspector/S.H.O. (C.W.2) and Habib Anwar Shah D.S.P. (D.W.2).
10. There is no eye-witness of the present occurrence. The complainant had suspected the appellants as accused. It was not possible by P.W.5 Mst. Shamim Akhtar to identify the appellants through hole as the room was full of smoke and there was suffocation. The appellants were allegedly present at the roof-top. The size of the hole was 5/6". It was a dark night and she was not leading a pious life. The appellants were found innocent during the investigation by C.W.2 and the D.Ws. P.W.4 Muhammad Akhtar who reached the spot on alarm had not witnessed the appellants at the spot. Both the injured gained consciousness and could not give any reply regarding anything about the occurrence including the names of the assailants. C.W:1 Muhammad Akram, (a P.W. Given up by the prosecution) reached the spot on alarm but had not witnessed the appellants at the spot. It was raining. Both the injured gained consciousness and on his inquiry Muhammad Ramzan deceased who was confused, stated that he did not know who had put the house on fire.
11. Pursuant to the above discussion, we are of the considered view that the prosecution has failed to establish its case beyond doubt against the appellants and giving them benefit of doubt we acquit them of the charge. They are in jail and shall be released forthwith if not required in any other case. Connected Criminal Revision No,635 of 1992 has no force and is dismissed.