' GHULAM SARWAR SHEIKH, J.--- This judgment will dispose of instant appeal (Criminal Appeal A.Sc.
(Tribunals) No,14 of 1997/BWP) and Criminal Appeal A.Sc. (Tribunals) No,16 of 1997/BWP, as both of it have arisen out of same F.I.R./case.
2. These criminal appeals under section 25 of Anti-Terrorism Act of 1997 are directed against judgment, dated 1-11-1997 passed by learned Judge, Special Court constituted under the same Act, whereby the appellants were convicted under section 302/34, P.P.C. On four counts for having committed Qatal-e-Amd of four persons and sentenced Abdul Hafeez appellant (in Criminal Appeal No,14 of 1997) to death on four counts, while Muhammad Ramzan appellant in (Criminal Appeal No,16 of 1997) was sentenced to lesser penalty of life imprisonment on each count, to run concurrently.
3. Story of woe as reflected by F.I.R. Exh.P.M. Is to the effect that on 20-2-1996 at about 3/4 a.m. On awakening by alarm raised by his brothers Shaukat Ali and Liaqat Ali; complainant namely, Akbar Ali saw smoke emitting from the Baithak of the house, where, Fateh Muhammad father, Mst.
Hameedan Bibi mother, Mst. Suraya Bibi sister and his son Amanat Ali were asleep. Liaqat Ali etc. Told the complainant that Abdul Hafeez accused holding a jerrycan of petrol, was seen, in the street and on seeing them had made good his escape. Complainant himself had also seen both the appellants in the way. Meanwhile other witnesses of the locality gathered there. They tried to break that lock, but, could not succeed and eventually, door was broken. They entered into the Baithak where all the four persons, mentioned above, were found to be dead.
4. Motive behind the occurrence is stated to be dispute over "Lambardari", which, was claimed by Mushtaq Ahmad, father of Abdul Hafeez convict, being elder son of Fateh Muhammad deceased, who had appointed the complainant as "Sarbrah Lumbardar".
5. At the trial, eleven witnesses were produced by the prosecution, P.W.6, Shaukat Ali, P.W.7, Liaqat Ali and P.W.8, Akbar Ali (complainant) furnished ocular account, while P.W.1, Kareem Bakhsh, P.W.2, Ghulam Hussain and P.W.3 Asghar Ali are Wajtakar witnesses. P.W.4, Mazhar Nadeem P.W.5, Tariq Mehmood are recovery witnesses, P.W.9, Dr. Irshad Ahmad Pirzada conducted post-mortem examination of dead bodies to provide medical evidence. P.W.10, AA& Hussain, S.-I./S.H.O., Police Station Head Rajkan proved various documents and memoranda prepared by his batchmate late Sajjad Haider, Inspector, who, had carried out investigation of this case. P.W.11, Muhammad Bashir, Head Constable is a formal witness.
6. When examined under section 342, Cr.P.C. Appellants denied all the incriminating circumstances figuring against them in the prosecution evidence, professed innocence and alleged false implication due to enmity and altercation with Sajjad Haider, Inspector/Investigating Officer. None of them opted to appear as his own witness to disprove the allegations as envisaged by section 340(2), Cr.P.C. No evidence was led in defence either.
7. Learned Trial Court believed the prosecution evidence, adjudged both the appellants as guilty and proceeded to convict and sentence them as indicated and noted above.
8. Learned counsel representing the appellants have lambasted the verdict by pointing out that same is rife and replete with legal and technical snags and infirmities, which, unfortunately escaped notice of learned trial Court and conversely the prosecution was allowed to reap benefit thereof. Their main attack, inter alia, is regarding failure of the prosecution to adduce any evidence, as to having seen Abdul Hafeez, convict, setting fire or locking the door by him. It has, therefore, been termed to be a case of "no evidence" at all.
9. Learned counsel for the complainant and learned counsel representing the State have highlighted various factors to remark that the appellants being responsible for such gruesome cold-blooded and brutal murders are liable to be awarded extreme penalty.
10. Abdul Hafeez appellant is sought to be connected with the commission of offence on the basis of motive, the evidence of "last seen" and recovery of jerrycan Exh.P.23 and keys of the locks allegedly having been put on the doors of the room in which the deceased lost their lives. The motive for the incident was stated to be that Fateh Muhammad deceased had appointed Akbar Ali complainant as acting Headman of the village and also deputed him to look after his land while ignoring Mushtaq, father of Abdul Hafeez appellant. Mushtaq Ahmad had not urged any grievance against the appointment of Akbar Ali as acting Headman of the village before Revenue Authorities or before the villagers or elders of his brotherhood. There is no evidence that he called upon his son to avenge the insult. Abdul Hafeez, under the circumstances, would not have been incensed to an extent that he would have murdered his own grandfather particularly when he had no immediate grievance against the old man. The motive thus does not connect Abdul Hafeez with the commission of offence in any manner. As far as Muhammad Ramzan is concerned, he obviously had no motive and it has not been shown as to why he would have joined Abdul Hafeez in commission of the offence when both of them have not been shown to be having any particular relationship.
11. The case of the prosecution is that Abdul Hafeez sprinkled petrol on the deceased, set them on fire and then locked the doors of the room from outside making it impossible for the inmates of the room to escape. The evidence of last-seen and recovery of jerrycan Exh.P.23 have been pressed into service to prove this aspect of the matter against Abdul Hafeez as nobody had actually seen him doing all the aforesaid acts. According to medical evidence all the deceased lost their lives due to asphyxia or inhalation of toxic gases and primary cause of death was not the burning. In case, petrol was sprinkled on beddings, cots or other articles in the room, the whole of the room alongwith its contents would have engulfed in flames on showing match to the petrol because the same is highly inflammable material. The clothes, beddings, etc. Were found to be half burnt. Some of the clothes which were hanging on the wall were only signed and were not burnt. None of the articles were sent to Hydro-carbon Institute at Islamabad, for detection of petrol in those articles.
None of the witnesses stated that the articles recovered after the incident smelled of petrol.
Therefore, the allegation levelled by the prosecution that the accused had sprinkled petrol and thereafter set on fire the inmates of the rooms is not substantiated by other material on record.
12. According to complainant, he had seen the deceased near the place of occurrence when he woke up and later P.Ws.3 and 4, the witnesses of "Wajtakkar" statingly had seen Abdul Hafeez and Muhammad Ramzan going away from village on a motorcycle. Abdul Hafeez is admittedly, resident of the same village and resided in the house of his father which was in the same vicinity.
Presence of a co-villager, near the place of occurrence or his moving away is never considered to be an incriminating circumstance. Abdul Hafeez appellant was arrested later in the day from the house of his father which meant that he had not absconded after the incident. The witnesses of "Wajtakkar" appear to have been brought into the picture subsequently as the complainant had not mentioned the fact of running away of the accused from the place of occurrence though one of the witnesses accompanied him at the time of making report to the police and whose name is mentioned in F.I.R. Itself.
13. According to prosecution Abdul Hafeez had put on locks on the doors of the room which made it impossible for the deceased to come out of the room. To connect Abdul Hafeez with the locks, key Exh.P.43/1 was recovered from his shop which was about 15/16 Kms. Away from his house. The case of the prosecution is that after the incident, the appellant left the spot on a motorcycle, went to the shop and thereafter, went to village. The keys Exh.P.43/1 were recovered from the drawer of a table being kept in the shop which was run by Abdul Hafeez, appellant. The China locks which were statingly used in the incident do not require any key to be engaged, rather these simply snap on.
There was no occasion for Abdul Hafeez appellant to have kept the keys which were of no use to him in his shop after commission of offence. During investigation, the broken doors of the room were not taken into possession and it was difficult to ascertain in these circumstances whether any lock was put on the doors or not or whether the same were broken or not. This aspect of the matter does not go against the appellant either.
14. It is case of the prosecution that the occurrence took place at "Sehriwela" when the complainant and his brother woke up they found smoke coming from the room and thereafter they broke open the doors. The medical evidence reveals that stomaches of the deceased contained semi- digested food. The occurrence took place during the month of Ramdhan and the deceased in all probability would have taken meals by around 6-00 p.m. On the preceding night. Presence of semi-digested food in the stomach indicated that the occurrence took place around 9/10 p.m. As the food does not remain in the semi-digested condition in stomach for longer than 3/4 hours and if the occurrence had taken place at about 9/10 p.m. There was a large number of persons moving around the village and it would not have been possible for the appellant to have walked into the house of the complainant and the room where the deceased was sleeping and to have committed the offence as was alleged by the prosecution. As the occurrence took place during the earlier part of the night, the F.I.R. Thus, was registered belatedly. It appears that beddings or any other articles lying in the room where the deceased slept caught fire due to coal heater or any other source while they were asleep and the deceased inhaled noxious gases and were unable to move or to warn others. As in such a situation where the toxic or noxious gases/smoke is inhales, unconsciousness is induced which reach to death. The villagers detected smoke and the complainant and others went to the spot and by that time the deceased were already dead and later due to existing between the parties, Abdul Hafeez appellant was involved in the case.
Muhammad Ramzan appellant has not been shown to be any connection with Abdul Hafeez appellant. The extra-judicial confession made by Muhammad Ramzan before the persons who were not in a position to have influenced the course of prosecution does not affect the case of the appellant.
15. After having gone through the entire evidence on record dispassionately, no data and material or factor to connect the appellants with the commission of offence with which they were charged is borne or spelled out. Conviction is accordingly unsustainable in law. Consequently, both the appeals are allowed and conviction and sentence awarded to the appellants are set aside. They shall be released and set at liberty forthwith if not wanted/required to be detained in any other criminal case.
18. Murder Reference No,8 of 1997 is accordingly answered in the negative.