1974 P Cr (PLP)

Nazar Muhammad Bahlani for the State. Date of hearing : 20th February 1973. This appeal under section 410, Cr. P. C. is directed against the judgment of Mr. Ahmed Khan Barakzai. Sessions Judge, Dadu dated 4th May 1971, whereby he convicted the appellants Ramzan and Allah Dino under section 436/34, P. P. C. and sentenced to each of them to one year's R. I. and also to pay a fine of Rs. 1,000.00 or in default to further six months' R. I. He however, acquitted the third accused Saleh.

2. Briefly the facts of this case are that on 9th June 1969, complainant Hafiz Loung, resident of village Suleman Panhwar who was on his duty at Dadu, his neighbour Ali Bux came to him at 6 p.m. and informed him that on that day at about 2 p.m. while he along with P. W. Yaqoob were returning from their land, they saw near the enclosure of the complainant's house appellants Ramzan and Allah Dino sitting there and doing something while Saleh (since acquitted) was standing by their side. The P. Ws. challenged them whereupon they stood and ran away. Soon thereafter they observed fire coming from the enclosure of the complainant's house. Ismail Usman sad others arrived at the scene to whom these P. Ws. narrated the whole incident, and some other villagers also started extinguishing the fire. In the meanwhile P. W. Ali Bux was sent by Ismail to inform the complainant, who came from Dadu and found his house burnt down along with his household effects. He also saw the house of Usman, Yaqoob, Wahid Bux and others completely burnt down into the same fire. These houses being very near to the house of the complainant. The motive alleged to be that four days prior to the incident the appellants had refused to give Batai/ share of grain to the complainant and threatened to cause loss of life and property to him. On this ground it is stated by the complainant in the F. I. R. that he had lodged a complaint against them at Dadu Police Station on behalf of his cousin Wahid Bux and the police came and got the share of the complainant from the appellant's party. On this grudge the appellants have burnt his house.

3. All the appellants have denied to have set fire the house of the complainant and stated that there is enmity between them and the com plainant and the prosecution witnesses are relations and they falsely implicated them. They further produced a discharge order in proceedings under section 107/151, Cr. P. C. in which the complainant and his cousin Wahid Bux deposed against the appellant.

4. The prosecution examined complainant Ali Bux, P. Ws. Muhammad Yaqoob, Muhammad Ismail in support of the case, while the appellant examined Muhammad Bux, S. H. O. Dadu Police Station and one Bahadur a co-villager in their defence.

5. I have heard Mr. Nasiruddin counsel for the appellant and Mr. Nazar Muhammad Bablani for the State. It was submitted by counsel for the appellant that the trial Court has failed to appreciate that the direct complaint filed on 21-6-1969 while the incident is said to have occurred on 9-6-1969, and the fortnight's delay is not explained sufficiently and that D. Ws. Muhammad Bux, S. H. O. Police Station Dadu categorically stated that no F. I. R. was lodged of the incident nor he had gone to the scene of offence or prepared any mashirnama as stated by the complainant in the F. I. R. and that the trial Court erred to have believed the evidence of D. W. Bahadur who belongs to the village of the complainant and who stated that the fire started from his house and that it spread to the remain ing houses and that the prosecution have failed to prove their case beyond reasonable doubt because no independent witness of the locality have been produced by the prosecution and no adverse inference could have drawn against the appellants for prosecution this material failure.

6. I find sufficient force in the above argument of the learned counsel for the appellants because the complaint admittedly had been filed after a fortnight's delay direct in the Court of the learned Civil Judge, while the incident had taken place on 9-6-1969. The Police Officer S. H. O. Dadu has been produced in defence whose statement belies the statement of the complainant that a report was lodged with him and the police had visited the wardat and mashirnama was prepared, and none of these documents were produced by the prosecution. Not only this but it is stated in the complaint that on the fire and commotion co-villagers, Usman, Ismail many other villagers collected there and tried to extinguish the fire and several houses were completely burnt down along with the household effects including the house of Usman and his brother Yaqoob while the houses of Wahid Bux and others were also burnt down and ruined. It may be noted that none of these persons whose houses as alleged to have been burnt by the appellant has been examined. This non-production of these witnesses who have suffered equally heavy losses and are equally aggrieved together with the complainant have come forward to give evidence against the appellants. The next point which attract my consideration is that it is stated in the F. I. R. and in the complaint that the appellants had set the hedge on fire at 2-00 p.m. when P. Ws. Yaqoob and Ali Bux were returning from the fields. Now, one fails to understand as to how in the broad daylight the appellants took the courage to set the house of his co-villager on fire when admittedly there are about 20 or more houses of the villagers and when other haris also must be returning back from their fields or otherwise there may be other villagers moving about who could have easily noticed the appellants. If they intended to cause real harm and burn the house of the complainant why they instead of night chose broad daylight and no explanation is forthcoming from the record or given by the counsel for the State. This also raise a doubt in my mind as to the veracity apart from other points of the statement of the complainant. It is also surprise that when the appellants are allegedly to have set fire the house while the villagers as stated in the complaint who had arrived at the scene have not followed them or otherwise over powered and arrested them which they could have easily do, this because this fire was very danger to the entire village which in fact did cause harm to many other houses and no explanation had been given. Again the statement of D. W. S. H. O. cannot be ignored belying the statement of the complainant with regard to filing of the F. I. R. and visiting the site oil the date of the incident. The police officer did admit to have tone to the village tout on a different date with regard to a different care. Not only this is the statement of D. W. Bahadur which cannot be ignored, who stated that there was fire is the village and some houses were burnt which mere about ten in number including his own and the com plainant. The fire started all of a sudden from this witness's house and that is suread engulfing the remaining houses and the houses of Ibrahim and bhaledino were among the houses burnt and this he did not know as to how the fire got started. In cross-examination he states that it was afternoon time the fire started. He was sleeping in his house. He heard that police came to the village next day. This witness was not cross-examined as to the cause of the fire and the part allegedly played by the appellants with their arrest of any recovery from them. No witness has clearly stated that as to whether what material the houses was being set on fire. P. W. Ali Bux an alleged eve-witness stated that he saw accused setting fire at a distance of 14 acres away. Now this is a very long distance to see which one of appellants caused fire and how the fire has been set to the hedge. Beyond this there is no other evidence as to how and who in fact set hedge on fire. Going through the record it appears tome that the prosecution have utterly failed to prove the case beyond reasonable doubt against the appellants. There is inordinate delay in filing the complaint the non-production of co-villagers whose houses were burnt who are equally aggrieved and the statement of the two defence witnesses belying the statement of the complainant cannot be ignored.

7. For the reasons given I give benefit of doubt to the appellant and set aside their conviction and sentence and acquit them. The bail bonds if any shall stand cancelled. Appeal allowed.