' ZAFAR PASHA CHAUDHRY, J.--- Murder Reference No,12/T of 1999, Criminal Appeal No,117 of 1999, Criminal Appeal No,118 of 1999, Criminal Appeal No,120 of 1999 as well as Criminal Revision No,125 of 1999 have been taken together for disposal, as they all arise out of common judgment, dated 13-2- 1999 passed by Kh. Faheem Ijaz, learned Special Judge under A.T.A., Lahore, whereby Abid Ali son of Rao Nawab Ali, Muhammad Attique son of Abdul Rehman and Faiz Rasool alias Faisal alias Faizi stand convicted and sentenced as follows:-- "Abid Ali and Faiz Rasool alias Faisal alias Faizi convicted under section 302, P.P.C. For committing Qatl-i-Amd of Mst. Nabeela, Mst. Rasheedan Bibi, Muhammad Ali, Muhammad Usman, Amir and Muhammad Asif deceased and both of the appellants i,e, Abid Ali and Faiz Rasool were sentenced to death on six counts. Both of them were also ordered to pay Rs,3,00,000 (Rupees three lacs) each as compensation to the legal heirs of the six deceased persons, failing which to further undergo R.I.
For two years each.
' Abid Ali and Faiz Rasool were also convicted under section 7 of A.T.A. And both were sentenced to death.
' Abid Ali and Faiz Rasool were further convicted under section 436, P.P.C. And sentenced to 10 years'
R.I. Each, with a fine of Rs,10,000 each, failing which to further undergo R.I. For six months.
' Both Abid Ali and Faiz Rasool were convicted under section 427, P.P.C. And sentenced to two years'
R.I. Each with a fine of Rs,20,000 each, in default whereof to further undergo R.I. For 6 months.
' Muhammad Attique was convicted under section 302(b), P.P.C. And sentenced to life imprisonment on six counts and also to pay a compensation of Rs,1,00,000 to the legal heirs of the deceased failing which to further undergo R.I. For six months.
2. The prosecution case as revealed from the statement of Muhammad Rafi complainant P.W.17 as detailed in para. No,2 of the judgment is as under:-- "On 14-9-1998, there was a cricket match between South Africa and Sri Lanka. Abid Ali betted for Rs,3,30,000 with Shehzad Book Maker and he stood as surety for Abid accused. Abid Ali accused betted for South Africa but Sri Lanka won the match and he lost the bet. On 15-8-1998, the complainant demanded the money from Abid accused so that he may be able to pay the same amount to Shahzad Book Maker. Abid Ali told him that the complainant should go to his house and sleep there, Abid Ali accused will come during the night at any hour and shall pay the amount to him. Due to fear of Shahzad that he may not disturb him for the money, went to asleep in the house of Ghulam Rasool. At about 3 at night (a.m.) he alongwith Ghulam Rasool and Sifarish Ali came to his house and saw his house set on fire. When he entered in the courtyard of his house, he saw Abid accused and one another person coming out from his house running, towards Chauk Naunarian.
He raised alarm. On his cries, Mohalladars were attracted and they all over powered the fire by throwing water. Due to conflagration his wife Mst. Nabeela Rafi, Muhammad Ali, Muhammad Usman sons aged 11 years and 5-1/2 years, brother-in-law Amir aged 25 years all expired. His mother-in-law Rasheeda Begum aged 45 years and Muhammad Asif his brother-in-law aged 32 years were seriously burnt who were got admitted in the hospital. Abid All accused had set his house on fire in order to save betted amount Rs,3,30,000. He also caused the death of persons mentioned above. On this statement of the complainant the present case was registered."
3. As noted above, the occurrence took place at about 3-00 a.m. On 16-8-1998 and the matter was reported to the police immediately at 3-45 a.m. (with 45 minutes). The police station is located only at a distance of one kilometer from the place of incident. The statement of the complainant was recorded by Mukhtar Ali, S.-I. P.W.20 from Police Station Sherakot, Lahore. After recording the statement Exh.P.A. The same was sent to police station on the basis of which formal F.I.R. Exh.P.A.1 was recorded. The Investigating Officer prepared the injury statements and inquest report of all the injured and thereafter, dispatched the dead bodies for post-mortem examination. Mst. Rashida Begum and Asif Khan injured were sent to the hospital for treatment and medical examination but both of the injured subsequently expired in the hospital. The last-worn clothes of all these deceased were taken into possession after post-mortem examination. The S.-I. Recorded the statements of the witnesses soon after the recording of F.I.R. On the same day i,e, 16-8-1998.
4. On 20-8-1998 Muhammad Attique accused was arrested and on 21-8-1998 he was produced before the Area Magistrate. His statement under section 164, Cr.P.C. Was recorded. Thereafter, Muhammad Attique was sent to judicial lock-up.
5. On 21-8-1998 an application was submitted to the doctor for examination of Faiz Rasool alias Faisal alias Faizi, whether he was fit to make a statement or not, as he had serious burn injuries.
After performing other formalities such as depositing the articles in Malkhana etc. And on completion of the investigation, all the accused were sent up to face trial.
6. Seven doctors were examined by the prosecution who had medically examined the deceased as well as injured persons. Dr. Muhammad Ashraf P.W.9 medically examined the convict appellant Faiz Rasool alias Faisal alias Faizi son of Zulfiqar aged 18 years, at 3-20 a.m. After just twenty minutes of the occurrence and noted the following injuries on his person:--
(1) Burn whole face involving sculp hair.
(2) Burn right shoulder.
(3) Burns in front of chest, just below the neck.
(4) Both forearm were burnt.
(5) Burn involving, interior abdomen involving umbilicus.
(6) Burn involving dorsum of both feet. (70 Burn involving whole backside of chest and loin.
' It may be noted that as per order of the Judicial Magistrate the name of the patient was corrected as Faiz Rasool alias Faisal alias Faizi son of Ghulam Abbas, the address, however, remained the same. All the injuries were burn injuries and the duration was within three hours.
7. Dr. Bashir Ahmad P.W.15 also examined Faiz Rasool alias Faisal alias Faizi and described that he had 46% burns on his body and he was unable to travel or move around.
8. On 19-8-1998 Dr. Muhammad Akmal Shaheen P.W.13 examined Abid Ali and noted a superficial burn 8 c.m. x 2.5 c.m. On outer and back of left thumb with yeloish cream applied on it. The injury was described as 3/4 days old.
9. Statements of Dr. Muhammad Ashraf P.W.9 and Dr. Muhammad Akmal Shaheen P.W.13 are extremely important and significant because both these doctors examined the convict appellants i,e, Faiz Rasool and Abid Ali. Burns on their persons provide a substantive and positive corroboration to the prosecution version that house was set on fire by these persons. The remaining doctors were examined who stated about the injuries sustained by the deceased persons, four of whom died on the day of the occurrence and rest of the two died subsequently. All the deceased were seriously burnt and they died on account of burn injuries on their persons. Reproduction of the statements of the doctors which are quite lengthy would not be of much help. Even otherwise, death of these deceased persons on account of burns is not disputed by the defence.
10. Amongst other witnesses, statement of Muhammad Rafi P.W.17, Ghulam Rasool P.W.18 and Mukhtar Ali P.W.20 are relevant because Mukhtar Ali, S.-I. Had conducted the investigation whereas P.W.17 and P.W.18 had seen Abid and his companion coming out of the house and were running away in the street. P. W.17 Muhammad Rafi is the complainant. Rasheeda Bibi was his mother-in- law, Mst. Nabeela his wife, Muhammad Asif his brother-in-law, Muhammad Amir brother-in-law, Muhammad Ali and Muhammad Usman were his sons, as such he is closely related to all the deceased persons. This witness reiterated the statement already made by him. However, he added that accused Abid Ali and Faiz Rasool had set his house on fire in order to grab the betted amount of Rs,3,30,000. He saw Abid Ali and Faiz Rasool running out of the house after setting the same on fire.
11. Ghulam Rasool P.W.18 is also an eye-witness. He is known to Muhammad Rafi and also his family members. He deposed in Court that on 15-8-1998 at about 11-00 p.m. Muhammad Rafi complainant came to his house and told him that Abid Ali appellant had fixed the match and he has lost the bet amount of Rs,3,30,000. At about 3-00 a.m. He i,e, Ghulam Rasool and Safarish accompanied him to drop the complainant in his house. When they reached near the gate of the house, they saw Abid Ali and Faiz Rasool fleeing away from there. The witness also helped with other residents of the locality to extinguish the fire. He attested the recovery of Shalwar Qameez worn by Abid Ali accused appellant which was secured from his possession on 16-8-1998 and the clothes bore the black spots on the front of shirt and its cuffs. Smell of petrol was also found coming from the clothes.
12. The aforesaid witnesses i,e, Ghulam Rasool P.W.18 and Muhammad Rafi complainant P.W.17 are the eye-witnesses. The remaining witnesses 'are almost formal in nature except Dr. Shoab Anwar, Magistrate 1st Class P.W.19 who recorded the confessional statement of Muhammad Attique appellant, which is to the effect that "he (Muhammad Attique) was employed with Abid Ali. On the preceding night i,e, Saturday Abid Ali give him Rs,400 top fetch petrol which was not found to be sufficient. He again sent him to bring more petrol worth Rs,400. He brought the same. Thereafter, Muhammad Rafi complainant came to Abid who had a dispute with regard to payment of some amount. After delivering petrol, he went back to his house and on the next day, he came to know that Abid had set the house of Muhammad Rafi on fire".
13. On close of the prosecution case the appellants were examined under section 342, Cr.P.C.
Muhammad Attique aged about 20 years denied the allegations against him and on a question whether he made the confessional statement on 20-8-1998 before a Magistrate, he made the following reply:-- "It is incorrect. I never made any confessional statement. 1 was taken away by the police on 19-8- 1998 and I was tortured by the police in the presence of one fat man having lot of golden rings in his fingers and I was pressurized to make a false statement against Abid Ali. Exh.P.S. Is not my statement."
' He further pleaded that he was innocent, was a poor person and could not even engage a counsel.
14. Faiz Rasool alias Faisal alias Faizi also denied the various allegations against him and in answer to Question No,8, he made the following reply:-- "I am aged about 17 years. I was working at shop. I worked there after midnight and about 2/2-30 at night while working I was burnt due to flames of paint mixed with petrol at shop. I became unconscious and remained several days in the same state. I am innocent. Muhammad Rafi P.W.
Involved me with mala fide intention to achieve the ulterior motive and purpose alongwith Abid Ali."
15. Abid Ali accused-appellant also denied the allegation against him and in answer to question as to why this case against 'him, he made the following reply:-- "The witnesses are gamblers. When the house of the deceased was burnt everybody suspected the complainant and the other gamblers to be involved in this fire and just to save their own skin and to save the real culprits I was made escape goat and was later on falsely involved due to enmity with the complainant. The witnesses are close friends and worker of some prominent gamblers and they have implicated me at his instance according to plan even the record has been manoeouverd to make the story plausible. The alleged eyewitnesses are the known bad character.
They do not live in the area. The real witnesses were not allowed by them to join the investigation."
16. Apart from the statements of aforesaid witnesses, statements of two defence witnesses were also recorded who are from press and stated that earlier version what came to their knowledge was different from the one which was set up subsequently by the police. Their statements are nothing more than hearsay and as such are not even admissible in evidence.
17. The main argument advanced by the learned counsel for the appellants is that Muhammad Rafi and Ghulam Rasool are not truthful witnesses, their statements are not worthy of credence because their presence at the time of occurrence at 3-00 a.m. Is extremely improbable. Further submits that the complainant Muhammad Rafi and Shehzad Book-Maker are the known gamblers.
The police did not associate Shehzad in this case who was an important witness. The present appellants were implicated merely as escape goats and lastly argued that the motive as set up by the prosecution does not connect the appellants with the commission of the crime.
18. As against that the learned counsel for the complainant as well as for the State supported the conviction of the appellants and explained that the motive as brought on record fully implicates the appellants. The statements of the witnesses are supported by material facts such as burns on the person of Faiz Rasool alias Faisal alias Faizi and Abid Ali. Further added that the statement made by Muhammad Attique appellant under section 164, Cr.P.C. Also supports the prosecution case that petrol was procured through him from different petrol pumps and house was set on fire after irrigating or sprinkling the house with petrol, causing colossal loss and six innocent lives were lost.
19. We have heard the arguments and also gone through record with help of the learned counsel for the parties. The prosecution case starts with the motive as has been put forward by Muhammad Rafi complainant. According to him a bet of Rs,3,30,000 was made by Abid Ali appellant and he (complainant) stood surety for him that in case Abid Ali appellant does not pay the amount to Shahzad Bookmaker, he would be responsible for the payment. The learned counsel for the complainant while explaining the motive canvassed that in fact these bookies such-like Shehzad, etc. Are extremely strong people and they have practically assumed the shape of a Mafia. Abid All unluckily lost the bet, he was aware that if he did not make the payment, he will have to face severe consequences. As per statement of Muhammad Rafi P.W.17, Abid Ali told Muhammad Rafi that he should go back to his house and he would contact him some time during the night and will make the payment of the amount which he had lost in the bet i,e, Rs,3,30,000.
Muhammad Rafi apprehended that Shehzad, to whom the amount had to be paid, may not do any harm to him. He went to the house of Ghulam Rasool. On the first impression, the story of motive appears to be improbable or inconsistent, as to why the appellants would set the house on fire on account of a dispute of payment of the amount but when this aspect of motive is analysed, it reveals that Abid Ali had asked Muhammad Rafi to go back to his house and sleep over there. The idea was that when Muhammad Rafi B would remain in his house at night, Abid Ali will set the house on fire, wherein he (Muhammad Rafi) will be burnt, on account of which Abid Ali appellant would escape his liability by stating that money due from him had in fact been paid to Muhammad Rafi, as Rafi got burnt in the house, money was also gone alongwith him. ##TE#
20. It is further supported by the fact that site plan of the house shows that door of two rooms abut in the street and it is normal for the people living in small houses that male members sleep separately and mostly in the Baithak or the room adjacent to the street. The idea may be, to set these rooms on fire wherein Muhammad Rafi was likely to be asleep during night. When the motive is analaysed and viewed from this angle, it no more remains absurd or disjuncted with ultimate crime. Although a normal person may not adopt such a drastic or dreadful step which may result in havoc to the opponent but the people such-like the gamblers, etc. Have terroristic tendencies and it is not something unusual for such-like persons. Apart from the motive the prosecution case hinges on the testimony of the eye-witness account furnished by Muhammad Rafi P.W.17 and Ghulam Rasool P.W.18. Although presence of the witnesses at the site of occurrence at odd hours of night may look improbable but the same cannot be held to be impossible. Muhammad Rafi had gone to sleep in the house of Ghulam Rasool P.W.18 in order to avoid any meeting or confrontation with Shehzad Book-maker. He might have thought that after mid-night Shehzad or anyone on his behalf would not visit his house. He would have come back and Ghulam Rasool would have accompanied him as his escort. Both the witnesses have no such motive or animus to falsely implicate Abid Ali and Faiz Rasool appellants. Even if they are treated as chance witnesses, their statements can be relied upon, if corroborated with some other material part of evidence. In the present case not only Abid Ali had been accused of the offence, he was accompanied by another companion who ultimately turned out to be Faiz Rasool. It was not in the knowledge of the complainant Muhammad Rafi or Ghulam Rasool that Faiz Rasool was burnt. They saw two persons running away after setting the house on fire and ultimately it was found that Faiz Rasool had been burnt quite seriously at the same time. The burns of Faiz Rasool cannot be a mere coincedence.
Burns and injuries on his person lend credible support to the statements of the eye-witnesses. The conduct of an accused is always material to determine his guilt. Faiz Rasool got himself admitted in hospital under false name. They supplied the wrong information with regard to reason of burns.
Subsequently, it was learnt that it was Faiz Rasool who was burnt and he reached hospital at 3-20 a.m. i,e, just few minutes after the occurrence. Burns on his person is an extremely important circumstance which implicates him fully in this case. No satisfactory explanation was furnished by him during his examination under section 342, Cr.P.C.
21. Apart from the burns of Faiz Rasool, Abid Ali appellant had also fire burns on his thumb which injury was concealed and when examined subsequently by the doctor, it proved out to be three or four days old, as such the same tallied and coincided with the time of occurrence. At the time of his arrest the clothes worn by him (Abid Ali) were taken into possession. They contained black spots and also smell of petrol was found therein. Abid Ali has not fully refused the motive rather the explanation tendered by him supports or confirms the motive as set up by the prosecution.
22. By taking ocular account alongwith burns on the persons of Faiz Rasool and also on Abid Ali, the clothes having black spots and then these factors supported the last seen evidence and during investigation was found no other cause of fire in the house. The prosecution has quite successfully proved the guilt of Abid Ali and Faiz Rasool alias Faisal alias Faizi. There is yet another important aspect i,e, occurrence took place at 3-00 a.m. And report was made to the police station at 3-45 a.m. Had the complainant not seen Abid Ali and his companion setting the house on fire and fleeing thereafter, he could not make a positive report as has been done by him, wherein all the details were furnished. The complainant whose relations had lost lives must be under tremendous shock and grief. In such a situation after undergoing a mammoth loss and destruction, he would not have falsely implicated the appellants.
23. In view of the above discussion, we are convinced that the house had been set on fire by Abid Ali and Faiz Rasool alias Faisal alias Faizi, as a result of which six innocent persons including women and children lost their lives. The conviction of Abid Ali and Faiz Rasool alias Faisal alias Faizi under section 302, P.P.C. And their sentence of death on six counts is, therefore, fully sustainable, as such, their conviction and sentence under section 302, P.P.C. As recorded by the learned trial Court is upheld and maintained.
24. The act committed by both the appellants i,e, Abid Ali and Faiz Rasool alias Faisal alias Faizi is squarely covered by section 7 A.T.A., therefore, their conviction and sentence under section 1 of A.T.A. Is also upheld and maintained.
25. The conviction of two appellants i,e, Abid Ali and Faiz. Rasool alias Faisal alias Faizi under section 436 as well as under section 427, P.P.C. Is also upheld and maintained.
26. However, coming to the case of Muhammad Attique appellant, the main evidence against him is comprised of his confessional statement. Even if his confessional statement is accepted in toto, the same may give rise to a presumption that he should have sensed some foul play was likely in offing but to burden him with the responsibility that he was an accomplice with his co-accused and he was aware that the petrol had been procured to set the house on fire, would rather be too presumptive. The presumption or suspicion how strong it may be, cannot be treated as a substitute of evidence. Muhammad Attique appellant, therefore, is extended the benefit of doubt, his conviction and sentence under section 302(b), P.P.C. Is set aside and he is accordingly acquitted of the charges against him. Muhammad Attique appellant be released from jail forthwith if not required in any other case.
27. As a result of above discussion, the Criminal Appeal No,117 of 1999 as well as Criminal Appeal No,118 of 1999 filed by Faiz Rasool alias Faisal alias Faizi and Abid Ali respectively, are dismissed, their conviction and sentence as recorded by the learned trial Court under various sections of Pakistan Penal Code are upheld and maintained.
28. Criminal Appeal No,120 of 1999 filed by Muhammad Attique appellant is allowed, his conviction and sentence is set aside.
29. Criminal Revision No,125 of 1999 is accordingly dismissed.
30. Murder Reference is answered in affirmative. Sentence of death is confirmed.