' MUHAMMAD NAWAZ ABBASI, J.--- Altaf Hussain and Mst. Shamim Mai appellants have challenged the judgment, dated 11-11-1997 by virtue of which the learned Special Judge, Anti-Terrorism Court, Multan, on finding the appellants guilty of charge under section 302/34, P.P.C. Convicted and sentenced each of them to death for committing the murder of Muhammad Shafi deceased.
2. This judgment will dispose of the murder reference sent by the learned Special Judge for confirmation of the death sentence awarded to the appellant as well as their appeal against the conviction and sentence.
3. The occurrence in the present case took place in the night of 28/29-1-1996 at 11-00 p.m. In Ittefaq Colony in the house of complainant situated at a distance of 1-1/2 Kms. From the Police Station Gulgashat Colony, Multan.
4. The report of occurrence was lodged by Muhammad Sarfraz P.W.12 brother of Muhammad Shafi deceased through statement Exh.P.D. Made by him before Abid Hussain, A.S.-I. Of Police Station Gulgashat Colony at 10 a.m. On 1-2-1996 at Chowk Ghazi Abad, accordingly a case was registered against the appellant through F.I.R. Exh.P.D./1 which was recorded by Afzal Moharrir/H.C. On 1-2-1996 at 10-30 a.m. At the Police Station Gulgashat Colony, Multan.
5. The prosecution case as contained in the F.I.R. Is that Muhammad Shafi real brother of Muhammad Sarfraz complainant was resident of Chah Usmanwala, Mouza Beeranwala.
Muhammad Shafi deceased was married with Mst. Shamim Mai appellant daughter of Ahmad Bukhsh of the same village about 30 years back. Mst. Shamim Mai was of bad character and Muhammad Shafi her husband often used to restrain her from carrying illicit relations with Altaf Hussain appellant resident of Billiwala as she in connivance with her paramour wanted to murder him. On the night between 28/29-1-1996, Mst. Shamim appellant and Muhammad Shafi deceased went to the house of their daughter Mst. Parveen to see her and stayed at the house of Muhammad Ayyub their son-in-law at Ittefaq Colony. The complainant was intimated by Muhammad Ayyub that his brother Muhammad Shafi deceased was burnt with fire at 11-00 p.m. On that night. The complainant on reaching at the house of Muhammad Ayyub, found that Zafar Iqbal and Muhammad Hafeez son of Sultan resident of Zikraya Town were sitting at the house of Muhammad Ayyub who told him that on hue and cry raised by Muhammad Shafi at 11 p.m. They noticed Altaf appellant running from the house of Muhammad Ayyub by scaling over the wall and Mst. Shamim appellant was washing her hands at the hand pump. They without loss of time put off , the fire and took Muhammad Shafi deceased to the Nishtar Hospital who told them that Mst. Shamim Mai and Altaf Hussain appellants had set him on fire. The complainant charged Mst. Shamim and Altaf Hussain appellants as murderers of his brother. The complaint Exh.P.D. Was recorded by Abid Hussain, A.S.-I. P.W.15 which was sent by him to the police station through Abdul Salam P.W.1 a constable for formal registration of the case and on the basis of said statement F.I.R. Was recorded by Muhammad Afzal Moharrir/H.C./P.W.2 and then P.W.15 visited the spot, inspected the place of occurrence and prepared the site plan Exh.P.H. He recorded the statement of the P.Ws. And took into possession Shalwar P.1, Jacket P.2 of deceased in burnt condition vide recovery memo. Exh.P.A.
On the production of the same by Muhammad Sarfraz complainant. He collected ash (Exh.P.B.) from the kitchen of the house and the place of occurrence. He sealed the same into a parcel and took into possession the burnt cot P.3 from the place of occurrence vide memo. Exh.P.C. Then he visited Nishtar Hospital where Muhammad Shafi deceased in injured condition was admitted and prepared injury statement Exh. P.1 of Muhammad Shafi and also got him medically examined, however, on application Exh.P.1/1 moved by P.W.15 the doctor reported that Muhammad Shafi was not fit to make statement and later Muhammad Shafi deceased then expired on 2-2-1996 in the Nisthar Hospital. Abid Hussain A.D.I./P.W.15 after preparing death report Exh.P.J. Of Muhammad Shafi deceased and added section 302, P.P.C. In the case. He collected the complete record of the M.L.R.
And other reports relating to the deceased from the M.S., Nishtar Hospital, Multan and while preparing the inquest report Exh.P.F./1 and injury statement Exh.P.F. Sent the dead body of the deceased for post-mortem examination. On 4-2-1996 Aftab Ahmed Khan, S.H.O./P.W. Took over the investigation from P.W.15.
6. The accused was charged under section 302/34, P.P.C. And they while pleading not guilty claimed trial. The prosecution in support of the charge against accused examined 20 P.Ws. The accused in their statement under section 342, Cr.P.C. Having denied the charge of murder of deceased stated that they have been falsely implicated. Learned trial Court after considering the evidence on record convicted and sentenced the appellants under section 302/34, P.P.C.
7. We have heard the learned counsel for the parties and perused the record.
8. The evidence produced by the prosecution was in the form of ocular account extra-judicial confession, declaration of the deceased, medical evidence, recoveries with positive report of Chemical Examiner and circumstantial evidence. Mst. Shomila daughter of Muhammad Shafi a girl of adult 9 years was examined as P.W.9 who deposed that on the direction of her mother she fetched kerosene oil from the Bazar' and during the night of same day her father was set at fire.
Muhammad Ayyub son-in-law of Muhammad Shafi and Mst. Shamim accused stated that during the night of occurrence the deceased and Mstl Shamim accused were staying at his house who were accommodated in a separate room and at 11 p.m. On noise from their room he attracted to them and found that the deceased burnt due to fire and Altaf accused who was present near the deceased scaling over the wall of home fled away from the spot. Muhammad Hafeez P.W.11 who also reached at the spot at the time of occurrence deposed in corroboration to the statement made by Muhammad Ayub. Muhammad Iqbal P.W.6 and Muhammad Talib Hussain P.W.7 have deposed that Altaf accused disclosed before them that he in connivance with Mst. Shamim committed the murder of Muhammad Shafi by setting him at fire. Similarly Ghulam Hussain and Haq Nawaz P.W.8-9 respectively stated that Mst. Shamim confessed her guilt before them on 9-2- 1996. When they were present in the house of Ghulam Hussain. Muhammad Bashir P.W.4 claimed that when he went to see Muhammad Shafi deceased in the Nishtar Hospital, Multan, the deceased told him that Mst. Shamim sprinkled kerosene oil on him and Altaf accused set him at fire.
Muhammad Sarfraz P.W.12 real brother of the deceased stated that the relations of deceased with Mst. Shamim were not cordial as she was carrying illicit relation with Altaf accused. Dr. Jehangir Asad, Medical Officer, P.W.17 who medically examined the deceased in injured condition found burnt injuries on the face, chest, abdomen, hands, lips and limbs of the deceased. However, Dr. Stated that at the time of examination the patient was fully conscious. Dr. Mehr Noor Ahmed P.W.3 conducted post-mortem on the dead body of Muhammad Shafi, deceased on 3-2-1996 and found burnt injuries and opined that death was caused due to these burnt injuries. The accused, however, denied the charge and pleaded non-guilty. The learned trial Court while believing the prosecution evidence held the appellant guilty of the charge.
9. Learned counsel for the appellant contended that there was no direct evidence of throwing the kerosene oil on the body of the deceased and set him at fire, therefore, the evidence brought by the prosecution would not establish the charge and possibility that the deceased being smoker while smoking cigarette caught fire and as a result of which sustained burnt injuries and ultimately died in the hospital.
10. Learned counsel for the State while supporting the judgment contended that there was sufficient direct as well as circumstantial evidence to connect the appellant with commission of offence.
11. We have heard the learned counsel for the parties and perused the record with their assistance.
The occurrence took place at 11 p.m. During the month of February when deceased was sleeping inside the room. Before going into the question that how deceased caught fire, the question relating to the presence of Altaf Hussain at the spot would need attention. The deceased with his wife on a chance visit to see their daughter was staying in the house of his son-in-law and normally Altaf accused would have no knowledge about the availability of the deceased in the house of their daughter. This is noticeable that no one took notice of the entry of Altaf in the house and further it is not in the evidence that some light was available in the courtyard and Altaf Hussain while running from the spot was identified in the light. Muhammad Ayyub deposed that Altaf Hussain was present near the deceased at the time of occurrence and except this statement of Muhammad Ayyub who did not make any attempt to apprehend Altaf. There is no evidence to suggest that during the night Altaf Hussain visited the house of Muhammad Ayyub. The mere illicit relations of Mst. Shamim with Altaf Hussain if any as per suspicion shown would not be enough to raise a A presumption that Altaf Hussain would be the culprit and the deceased was set at fire by Mst. Shamim with the help of her paramour Altaf Hussain.
' Admittedly the witnesses reached at spot at the noise of deceased but no one claimed that at that time deceased has disclosed that he was set at fire either by Mst. Shamim or Altaf Hussain as it is in the statement of doctor that deceased was fully conscious at the time of examination. The evidence of extra judicial confession is also shaky and is not confidence inspiring. The witnesses have not disclosed that why the appellant confess their guilt before them without seeking any help from them. It is not understandable that why accused would create evidence against them in the form of extra-judicial confession in absence of any direct evidence. Similarly the evidence of minor daughter of deceased and his son-in-law is not helpful to the prosecution as none of them has seen the accused either sprinkling oil or setting the deceased at fire. It was not prosecution case that the deceased and his wife Shamim had gone to see their daughter in the house of Muhammad Ayyub their son-in-law with their minor daughter who was sleeping with them at the time of occurrence. The purchase of kerosene oil by her from the bazar at day time would not be sufficient to suggest that oil was arranged for the use in the occurrence. The evaluation of the evidence in its totality would not rule out the possibility that the deceased while smoking cigarette in the bed during the cold night of winter accidentally caught fire and as a result thereof during sleep sustained burnt injuries. From the evidence brought on record in support of charge it is not appealing that occurrence had taken place in the manner as claimed by the prosecution and the same being of doubtful character is not confidence inspiring to sustain conviction. For the foregoing reasons we while extending benefit of doubt to the appellants acquitted them from the charge and allowed this appeal.