1994 P Cr (PLP)

S. 436/34

Appreciation of evidence

Unexplained delay of about four years in lodging the complaint was fatal to the case of complainant

Burnt articles were neither shown to the police nor produced before the Court-- Witnesses had not seen the accused setting the kitchen on fire

False implication of accused in the inimical background could not be ruled out

One resident of the locality had deposed about the non-occurrence of such incident

Investigating Agency after thorough investigation had also found the case to be false which was consequently cancelled

Accused were acquitted in circumstances. Pir S.A. Rashid for Appellants. Hafiz Ghulam Bari for the State. Date of hearing: 12th October, 1993. RAJA AFRASIAB KHAN, J

, The appellants, Muzammal Akhtar, Mazharul Hasan sons of Muzaffar Hassan and Muzaffar Hassan son of Azizud Din were convicted and sentenced to three years' R.I. each plus a fine of Rs.20,000 each or in default to undergo one year's R.I. under section 436/34, P.P.C. by Mr. Lutaf Ali Malk learned Judge Special Court, Lahore on 14-6-1993. It was directed that in case of recovery of fine, Rs.5,500 shall be paid to the complainant, Muhammad Hassan as compensation. The convicts have challenged their conviction and sentence by filing this appeal before this Court under section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975. The facts, in brief, are that on 1-12-1986, at about 1-45 a.m. Muhammad Hassan (complainant) was sleeping alongwith his wife and children and Muhammad Raft, his guest in his house when he heard a noise coming from the kitchen of his house. The complainant, his wife and Muhammad Rafi got up and rushed to the kitchen only to find that it was burning. The convicts accused ran away from the spot and entered their house. Muzaffar Hassan accused was holding a canister while the other accused were holding Chowaties at the time of occurrence. It is also mentioned that the complainant went to the house of the accused/convicts and asked them to come out but they did not do so. An alarm was raised which attracted Abdul Haleem Khan, Maulvi Ahmad Din, Nazeer Ahmad and two other persons at the spot. They succeeded in extinguishing the fire. The utensils, documents, garments and eating material of the value of Rs.5,500 were burnt. It is disclosed that petrol was sprinkled on the Chowaties and by inserting them into the kitchen through holes and in that way, the kitchen was put on fire. On the next day, the complainant approached the local police for registration of case. However, the matter was postponed for one pretext or the other. According to the complainant, instead, a case under section 107/151, Cr.P.C. was registered against him and his wife. They were arrested and produced before the Magistrate. It is stated that a petition was instituted before the High Court praying for issuance of a direction to the local police for registration of case against the accused. It is maintained that on intervention of the High Court, a case was registered against the accused, which was, however, cancelled by the police for lack of evidence. After the cancellation of the case, the complainant instituted criminal complaint against the appellant - convicts on 21-6-1990 in the Court of learned Ilaqa Magistrate. In order to prove his case, the complainant besides appearing himself as P.W.1, produced Muhammad Rafi P.W.2 and Abdul Haleem P.W.3. The appellants denied the allegations levelled against them in their statements under section 342, Cr.P.C. Their plea was that they had been implicated on account of enmity. Muhammad Siddiq D.W.1 deposed in support of the plea that no such incident as alleged by the complainant took place in the locality. The learned trial Judge believed the prosecution witnesses and rejected the defence version. It was held that the delay in lodging the complaint was not fatal to the prosecution case in the given circumstances.

2. It is contended by the learned counsel that the complaint was filed by the complainant after unexplained delay of four years and there was absolutely no reliable evidence to connect the appellants with the commission of the crime. It is stated that no burnt material was produced before the Court in support of the case of complainant. According to the learned counsel, there was enmity between the parties inasmuch as an application was given by the appellants against the complainant that he had cut the trees owned by the Pakistan Railways and that the said trees were recovered from his possession.

3. We have heard the learned counsel for the parties at some length and have also carefully read the whole record. We do agree with the learned counsel that the prosecution has failed to prove its case against the appellants beyond reasonable doubt. To begin with, admittedly, the occurrence took place on 1-12-1986 during night while the private complaint was instituted on 21-6-1990 after about four years. No plausible explanation was given by the complainant in respect of inordinate delay in lodging the complaint. The only explanation given was that the complainant had been approaching the police time and again for registration of case. This explanation cannot be accepted as enough for such a long delay for the reason that .if his house was in fact set on fire, as alleged by him, he could file the criminal complaint immediately after the refusal of the police to register the case against the accused. We are, therefore, convinced to hold that the complainant did not give any plausible explanation for the delay of about four years. It is the duty of the complainant to explain the delay in lodging the complaint which has not been done to our satisfaction. The unexplained delay is undoubtedly fatal to the case of the complainant. It may also be noted that the burnt articles, if any, namely, utensils, documents, garments etc., were not shown to the police and were also not produced before the Court in support of the plea that the kitchen was set on fire. This fact creates doubt about the genuineness of the prosecution version. There is also not a shred of evidence to demonstrate that the incident, if any, was witnessed by any person and that the appellants were seen by anyone while setting the kitchen on fire. The testimony of the complainant, Muhammad Rafi P.W.2 and Abdul Haleem P.W.3 was that they saw the appellants while entering their house at the time of occurrence. It is established that the witnesses did not see the accused while setting the kitchen on fire. The fact that appellants did not come out to extinguish the fire despite request could not be held to be a sufficient circumstance to convict the accused. It is in evidence to show that before the occurrence an application was given by the accused against the complainant that he had cut and stolen the, trees belonging Pakistan Railways. The false implication of the appellants in such an inimical background, therefore, could not be ruled out. Muhammad Siddiq D.W.1, who is a resident of the locality of occurrence, deposed that no such incident of fire took place. This is, therefore, a case of grave doubt on the face of record. The prosecution has failed to prove its case against the appellants. Admittedly, the Investigating Agency after thorough investigation came to the conclusion that the case was false and in consequence, it was cancelled. All these facts when taken together would lead us to the only conclusion that the prosecution did not succeed to bring the guilt home to the appellants. By our short order, dated 12-10-1993, we accepted the appeal and set aside the conviction and sentence of the appellants. They were directed to be released forthwith if they are not required in some other case. These are the reasons in support of the short order. N.H.Q./M-1358/L Appeal accepted.