2007 PLP 23 (MLD)

RAHMAT HUSSAIN JAFFERI, J.-Brief facts leading to the present appeal are that on 15-10-1998 the complainant Mubarak was sleeping in his house. At about 1 a.m. in the night he woke up and saw the hedge of the house was on fire. He also saw appellant Ayoob having a match box, acquitted accused Bashir, Janu and Ghano surrounded the house. On the fire flames and commotion, the family members of the complainant woke up. On the cries P.Ws. Allandino and Muhammad Ali arrived who also saw the incident and then the culprits ran away. In the morning the complainant tracked the footprints which led them to the house of the accused. The complainant then went to police station and lodged the report at 10 a.m. The police after usual investigation challaned the appellant and acquitted accused in the Court of law. The learned Additional Sessions Judge Gambat tried, convicted and sentenced the appellant for offence punishable under section 436, P.P.C. whereas acquitted the accused Bashir, Janu and Gahno under the impugned judgment, dated 8-5-1999. I have heard the Advocate for the appellant, State Counsel and perused the record of this case very carefully. The latter has not supported the impugned judgment. After going through the evidence with the assistance of learned counsel for the Appellant I found that the case of prosecution rests upon two witnesses namely P.W.1 Mubarak and P.W.2 Muhammad Ali. The complainant gave same details of the incident as mentioned in the earlier part of the judgment; therefore, need not to be repeated. However, the evidence of complainant is neither supported nor corroborated by P.W.2 Muhammad Ali as he stated that when he reached at the place of incident he and other villagers found the hedge of the complainant on fire. They extinguished the said fire. He further deposed that the complainant did not disclose the names of the culprits at the nighttime but in the morning he disclosed the names of the culprits to be the appellant and acquitted accused. He did not support the complainant that in the morning they tracked the footprints. From the above evidence it is clear that the complainant did not state that he saw the appellant setting fire the hedge of his house but his evidence is that he saw the appellant with a match box. It is not appealing to the common sense that the complainant would be able to see the match box in the hand of the appellant, if he had identified the culprits then he could have given their names to P.W. Muhammad Ali and to other co-villagers but the P.W. Muhammad Ali categorically stated that the complainant did not state the names of the culprits when he and other villagers reached there. The statement of the complainant that he tracked the footprints which led them to the house of the appellant clearly demonstrates that the culprits were not seen or identified by the complainant for the simple reason that if he had seen the culprits then there was no need for tracking the footprints. Furthermore, footprints are tracked to ascertain the culprits if they are not identified at the place of incident. Therefore, the case of the prosecution is highly doubtful. against the appellant. Hence the learned State counsel was right in not supporting the impugned judgment. Therefore, the impugned judgment was set aside while passing the short order, dated 28-8-2006 by which I had allowed the appeal. Above are the reasons of the said short order. H.B.T./A-133/K Appeal allowed.