1992 P Cr (PLP)

ABDUL MAJEED TIWANA, J.‑‑‑ This judgment shall deal with and dispose of Criminal Appeal No.790 of 1990 (Zulfiqar v. State) and Criminal Appeal No.865 of 1990 (Hassan alias Hasni v. The State), both arising out of the judgment, dated 20‑10‑1990, delivered by Special Court for Suppression of Terrorist Activities NOV, Lahore Division, Lahore. By this judgment, Zulfiqar and Hassan alias Hasni appellants, both were convicted under section 435/109, P.P.C. and each of them was sentenced to five years' R.I. and a fine of Rs.50,000 or in default to undergo two years' R.I.

2. Hassan alias Hasni appellant alongwith Bashir Rehan and Allah‑ud -Din alias Ashraf alias Achho co‑accused with the aid and abetment of Zulfiqar appellant had allegedly set Bus No.1976/FDG, belonging to Haji Abdul Jabbar (P.W.1), on fire and burnt it on 12‑8‑1987 at about 12‑30 a.m. when it stood parked on the bus‑stand of Hujra Shah Muqeem on account of Zulfiqar's threats.

3. The motive for the crime was that the owner of the bus had refused to pay `Jagga tax' to Zulfiqar appellant, who had, in similar circumstances, got Bus No.4184 of Haji Muhammad burnt at bus‑stand, Depalpur and had been tried alongwith another set of co‑accused.

4. On the completion of the investigation only the appellants herein were sent up for trial because their two co‑accused, namely, Bashir kehan, who was statedly carrying a cane of petrol which he sprinkled on the bus to enable Hassan alias Hasni appellant to throw a burning match stick on it, and Allah ud‑Din alias Achoo, who was armed with a gun and standing nearby, could not be traced and apprehended by the police during investigation.

5. On the commencement of trial the appellants had repudiated the charge and the prosecution had produced Haji Abdul Jabbar complainant (P.W.1), Syed Ifzal Hussain (P.W.2), Anwar (P.W.3), Mukhtar Ahmad (P.W.4), D.S.P. Ch. Iftikhar Ahmad. (P.W.5) and D.S.P. Sh. Zia‑ul‑Haq (P.W.6). To be a little more precise, Haji Abdul Jabbar, while deposing as (P.W.1), reiterated the contents of the F.I.R., the salient features whereof have already been outlined. Whatever he had stated about the incident, had rested upon the information conveyed to him by Syed lfzal Hussain (P.W.2), hawker at the bus‑stand, and Anwar (P.W.3), the conductor of the bus, both of whom had allegedly seen the occurrence. However, the allegations of motive were based on his own observation and perception. According to him, Zulfiqar accused had threatened him for his refusal to pay him the Jagga tax and because of his fear he had brought his bus to park it at bus‑stand of Hujra Shah Muqeem after withdrawing it' from Depalpur bus stand but there too he did not spare him.

6. As already mentioned, Syed Afzal Hussain (P.W.2) and Anwar {P.W.3) gave the eye‑witness account. It finds its reflection in the above narration of the incident. Mukhtar Ahmad (P.W.4) had testified that about three years ago Zulfiqar appellant, in his presence, had demanded from Haji Abdul Jabbar complainant the payment of Jagga tax and threatened him on his refusal to oblige him. Iftikhar Ahmad D.S.P. (P.W.5), who at the relevant time was S.H.O. at Police Station Hujrah Shah Muqeem, and Sh. Zia‑ul‑Haq,D.S.P. (P.W.6), who was Inspector C.I.A. during the days of occurrence and both had, one after the other, investigated the case, gave the details of the investigation as investigating Officers.

7. The appellants, in their statements under section 342, Cr.P.C., denied the incriminating circumstances figuring, against them in the prosecution evidence and alleging their false implication, professed innocence. On the conclusion of the trial the appellants were convicted and sentenced in the meaner aforesaid and aggrieved by the same, they came up in appeal to this Court. .

8. It may be mentioned here that only Ch. Ahmad Din Farooq, the learned counsel for Zulfiqar appellant, has turned up to argue the appeal and no one has appeared on behalf of Hassan alias Hasni appellant despite due notice to his counsel. Thus, where the appeal of Zulfiqar appellant has been argued by this learned counsel, we have considered the appeal of Hassan alias Hasni appellant with the help of the learned counsel for his co‑appellant as also with the assistance of the State counsel and both the appeals are being r' disposed of together.

9. It is argued on behalf of Zulfiqar appellant that his client was admittedly not present at the time of occurrence alongwith his co‑accused and. no reliable evidence was led to prove his aid and abetment in the commission of the crime by his co‑accused. According to the learned counsel, the only direct evidence, available in this regard was complainant's own statement to the effect that Zulfiqar appellant had threatened him for his refusal to pay him `Jagga Tax'. He submits that on this fact the complainant was corroborated by Mukhtar Ahmad (P.W.4), but this evidence was not sufficient to link him with the actual commission of dime by his co‑accused as an obettor or instigator and as such his conviction and sentence are not sustainable.

10. On the contrary, the learned counsel appearing on behalf of the State contends that the evidence of motive led by the prosecution against Zulfiqar appellant was sufficient to sustain his conviction and sentence.

11. Though it was alleged by the complainant that Zulfiqar appellant had, in a similar situation, on the refusal of the owner of a bus to pay him Jagga tax, set his vehicle on fire and this conduct of the appellant would have been relevant, yet the former led no evidence regarding the previous conduct of like nature of the latter and his uncorroborated statement in this respect is not enough to prove the charge. Similarly, complainant's allegations supported by, the testimony of Mukhtar Ahmad (P.W.4) that Zulfiqar appellant had threatened him for not having paid `Jagga‑Tax' does not inspire confidence. But even if, for the sake of arguments, it maybe accepted that the threat posed by the appellant to the complainant stood proved, even then it is not sufficient to hold him as abettor because the prosecution has failed to establish his direct or indirect link with the actual perpetrators of the crime, namely, Hassan alias Hasni co‑appellant and the two untraced co‑accused that he actually aided and abetted them to set the complainant's bus on fire and reduced it to ashes. Therefore, we are of the view that the charge of abetment against Zulfiqar accused was not proved by the prosecution beyond any reasonable doubt and A accepting his appeal, we set aside his conviction and sentence and acquit him of all the charges. He has already been released by a short order and these are the detailed reasons for his acquittal.

12. So far as Hassan alias Hasni appellant is concerned, the allegations against him were that he alongwith Bashir Rehan co‑accused, who could not be traced by the police for trial, had set the bus on fire at about mid‑night. His role was that .he had actually set it on fire after his co‑accused had sprinkled petrol on it. His act of actual setting the vehicle on fire was witnessed by Syed Ifzal Hussain (P,W,2), hawker of the bus‑stand, and Anwar (P.W.3) the conductor of the bus, who at the time of incident was alleged)Y sleeping on the rooftop of the vehicle and had saved his life with great difficulty by Jumping down from it. Their presence at the time of occurrence could not be doubted nor any sort of interestedness was brought on the record to discredit testimony. However, it has been pointed out by the learned counsel for Zulfiqar appellant with reference to the statement of Anwar (P.W.3) in the crossexamination that Hassan alias Hasni was not previous)Y known to him and in the absence of identification parade, his statement could not be relied upon.

13. We are inclined to agree with his contention and do not give much) importance to the testimony of Anwar P,W. However, there is no reason to ignore the testimony of Syed Mal Hussain (p,W.2) as it does not suffer from any legal infirmity. He claims that Hassan alias Hasni appellant known to him and he actual as already saw him setting the vehicle on fire after his companion had sprinkled petrol on it. His statement proved the prosecution C case against Hassan alias Hasni appellant beyond any shadow of doubt. Therefore, the appeal of Hassan‑alias Hasni appellant is dismissed and his conviction and sentence are maintained. He shall, however, be entitled to the benefits of section 382‑B, Cr.P.C. He should be informed accord' the concerned Jail authorities accordingly through the concerned Jail authorities. H.B.T./Z-7/L Order accordingly.