PLD 1949 Baluchistan 4 (PLP)

CROWN Respondent Criminal Appeal No. 19 of 1948, decided on 1st September 1948 from the order dated 15th June, 1948, passed by the Session Judge. Indian Penal Code, 1860, Ss. 436 and 454

Evidence far from convincing

Witnesses interested and not independent

Material discrepancy in evidence

Conviction set aside. The evidence led by the prosecution in support of the main charge of arson before the Session Judge is far from convincing. I am unable to regard the three principal. Prosecution witnesses as independent or disinterested witnesses. No ill will or previous grudge between the manager and the accused has been proved. A.R Khan J.C

The case for the prosecution has been given out in detail in the judgment of the Sessions Judge against which this appeal is directed. The defense was that on the day of the occurrence the accused met Muhammad Tufail, who had the keys of the shop with him told the accused that he was going to the shop to collect his post. The accused accompanied him as he too wanted his letters. On his way to the shop, Muhammad Tufail said that he wanted to purchase a lock and asked the accused if he would get him one. Thereafter both of them went to a show nearby and bought a lock which Muhammad Tufail put into his pocket. When they arrived at the shop and Muhammad Tufail began to open the lock a mind working in the adjacent shop which being a bakery was open on that Sunday informed them that their letters had been delivered at his shop. Thereupon the accused left Muhammad Tufail and brought the post from the baker s shop. As the accused when up to the door, Muhammad Tufail came out, locked the shop and then both left the place together for their residence. I have examined the proceedings of the Lower Court and have also heard the appellant s counsel and the Public Prosecutor at great length. I must remark at once that in my opinion the evidence led by the prosecution in support of the main charge of arson before the Sessions Judge is far from convincing. I am unable to regard the three principle prosecution witnesses namely Abdus Sattar, the Manager of the Bata Shoe Company and his two brothers in law, Muhammad Tufail and Muhammad Iqbal as independent or disinterested witnesses. The case for the prosecution depends mainly on their evidence. Their evidence in my opinion has to be examined with greater care than is ordinarily necessary particularly as it is not supported by any substantial evidence of disinterested witnesses. Moreover there is a material discrepancy in the statement of Muhammad Tufail and Muhammad Iqbal who are said to have gone with the accused to the Bata Show shop on Bruce Road earlier in the day of occurrence to collect letters. Muhammad Tufail says that he handed over the keys to the accused who opened both the locks while he had himself stopped down and begun to look under the inner door to see if any letters were lying inside the shop that while they were looking for these letters a man working in the adjacent shop informed them that their letters had been delivered at his shop and that upon this the accused and the witness went off to the adjoining shop, but before leaving the place the witness did not notice whether the accused find locked the doors of the shop. On the other hand, Muhammad Iqbal says that standing on the main road, he noticed that the accused had opened the inner door slightly (this could be done by passing hand through the expanding door) but had not opened the ex panding door. He did not know whether the accused had opened the luck of this door. According to this witness, it was the accused who got the post from the adjacent baker's shop and that on the way back home the accused over the keys of the shop to Muhammad Tufail. He goes on and says that there was no letter for the accused while Muhammad Tufail says that the accused did not wait at the baker's shop to read his letters after receiving them, but read them on his way back to the manager's residence. I am also not impressed by the evidence of the two shop‑keepers, Rasul Bakhsh and Abdur Rahman, from whom the lock Ex. P. 2 and the piece of rope said to have been used for setting the shop on fire, are alleged to have been purchased. It is in evidence that Muhammad Tufail was with the accused when according to the prosecution he pointed out these shops to the Police. Similarly it is difficult to understand how Rahmat Khan, P. W. 7, a saleman in the adjoining shop, who knew the accused previously saw the latter standing at the door‑steps of the Bata Shoes shop but did not n ice what he was doing and whether the shop was open or closed.