1968 P Cr (PLP)

3. Several witnesses were examined by the prosecution, and one, namely, Kehar Khan, D. W. 1 was examined in defence on the point of enmity and of false implication which was urged by the appellant and his co-accused cousins.

4. The case of the appellant and his co-accused in their statement was denial of the entire prosecution case, and of a contention that they had been falsely implicated on account of enmity over landed property. They also denied the illicit connec tion of Baghali with Mst. Ranhdi wife of Aziz. The contention of the appellant was that Ranhdi had died four years before the incident and in cross-examination P. W. Tiloo (Exh.7) had denied having made a statement earlier in the proceedings that Ranhdi had died 4 years ago, and indeed was unable to state whether Ranhdi was still alive.

5. It must be stated at the very outset that the two brothers accused, Karimbux and Ghulam Rasool have not appealed against their convictions. In arriving at his conclusion against this appellant and his co-accused the learned Sessions Judge placed reliance on Noordin (P. W. 4), a maternal uncle of the complainant Khan Muhammad and Ghousbux (P. W. 5), a Zamindar and a nekmard of the complainant.

6. There is no doubt that the house of Tiloo and his two brothers were set ablaze and that considerable damage was caused to the property contained in this house in which the three brothers lived together. This fact has been established and indeed has not been contested by the learned counsel appearing for the present appellant.

7. The points on which the appeal has been urged on behalf of appellant Khan Muhammad are :- (1) that the identity of the appellant has not been established beyond doubt in that he was in the company of the two accused at the time when the house of Khan Muhammad was said to have been set fire to ; (2) that independent evidence is lacking; and that (3) the appellant has been involved due to enmity.

8. Indeed, learned counsel for the appellant urged on the basis of the reliance placed on the testimony of P. Ws. Noordin and Ghousbux, that their evidence read together leads to the irresistible conclusion that only two persons took part in the incident of setting fire to the hour: of the complainant,

9. It is to my mind an extremely telling circumstance that the four prosecution witnesses, namely, Khan Muhammad, Jani and Tiloo are brothers, and that it has been established; in spite of vehement denial of some of the prosecution witnesses like Khan Muhammad, that P. W. Noordin is their uncle. Undoubtedly the prosecution witnesses were aware of this close relationship and, therefore, that independent corroboration of their testimony was necessary. The evidence of Noordin, P. W. 4, therefore, is all the more important, and it is necessary to refer to some aspects of his evidence to the effect that be was the first to arrive at the house of Tiloo, Jani and Baghali after the house had been set on fire, that when he arrived there, the first informant and P. Ws. Jani and Tiloo were present and that he (Noordin) saw only two persons running away from the scene. Noordin stated that he could not identify these two persons, but that be was informed that the three accused, which included the present appellant, bad set fire to 'their house. It is not likely if Noordin was the first to arrive at the scene and when the fire must have been still ablaze, and he could even at night from some distance see what was happening and this vision must have been accentuated by the blaze or the flame of the huts, that he could only discern two persons and not three, as alleged by the prosecution, running away from the scene.

10. We then pass on to the evidence of P. W. Ghousbux who is the nekmard of the complainant's party. He definitely stated that when the first informant came to him early in the morning and informed him of the incident, he gave only the names of accused Ghulam Rasool and Karimbux as having set fire to their house. He asserts that Khan Muhammad did not mention the name of the third accused, namely, the present appellant.

11. In these circumstances, support is lent to the evidence of defence witness Kehar (D. W. 1), who states that P. W. Ghousbux was annoyed with the accused as they were previously paying homage to Jazo Khan, but had migrated to Kehar Khan's village and turned their loyalty to Shahzado Khan and Ghousbux was, therefore, annoyed with the accused on that account He also stated that appellant Muhammad Bux and Noordin had lands adjacent to each other. The further circumstance which arises out of this evidence is that if the appellant Muhammad Bux bad been one of the two persons seen running away by Noordin, he as an uncle of the first informant, arid being close neighbour of the appellant, would certainly have been able to identify him, if not by face by the contours of his body from behind and even state that he suspected one of them to be Muhammad Bux. The learned Sessions Judge has characterized both Noordin and Ghousbux as truthful witnesses. I agree that these two witnesses must be believed. For reasons, I have already given, I am of the view that the case against appellant Muhammad Bux has not been proved beyond reasonable doubt, that it is not proved that he was with the two accused at the time the house of the prosecution witnesses was set fire to And that, therefore, he is entitled to an acquittal. 12. 1, therefore, allow the appeal, and set aside the convic tion and sentence imposed on the appellant. The appellant is in jail. He alone should forthwith be set at liberty if he is not required in any other case. The fine if paid, to be refunded to the appellant. Appeal allowed.