Appellant above named, being aggrieved by judgment dated 16th April, 1980 of the learned Ex Officio Additional Sessions Judge, Dadu in Sessions Case No. 569/76, whereby appellants have been convicted under section 436/34, P. P. C. And sentenced to suffer R. I. For 3 years and to pay fine of Rs. 1,000 each or in default to suffer further R. I for 6 months, have preferred the above appeal, on the following facts and grounds:-
2. Prosecution case in brief is that the houses of first informant Ali Khan, his brother Juma and Alam, phupat Sulleman and nephew Ghulam Hussain are situated on their lands in deh Moundar. These houses are made of straw roofs and mud walls. Behind their houses, there is a jungle of lai bushes which served the purpose of a toilet for their womenfolk. About 4 months before the incident, the present appellants started cutting lai bushes whereupon they were prevented by Ali Khan, as the same were used for easing purpose by the women-- folk. The appellants were therefore annoyed and went away, while issuing threats of dire consequences. In the year 1974 when this incident took place the appellants had raised wheat cultivation on their lands situated behind the houses of the witnesses. On the material day i.e. 29 March, 1974 at about 1-00 p. m., the witnesses were stilting in their respective houses, when they noticed sparkles coming out behind the house of Ali Khan. They immediately rushed behind the houses and found the present appellants setting the house of Juma on fire. On seeing the witnesses they took to their heels, while the witnesses tried to take out their household articles, whereas rest of the kit was burnt to ashes. It is alleged that the houses of the brothers and puphar of Ali Khan named above were also destroyed on account of fire.
3. The report of the incident was lodged by Ali Khan at Dadu Police Station the same day at 3.00 p. m., which was recorded by A. S. I. P. Shafi Muhammad who immediately rushed to the place ofth occurrence. He prepared a mashirnama Exh. 12 and secured burnt pieces of wood. He recorded further statement of Ali Khan and exa--mined P. Ws. Muhammad Alam, Juma and Ghulam Hussain. On the next day, he recorded the statement of P. W. Suleman. On the 3rd day i.e. 31st March, 1974 he interrogated the present appellants and took them into custody. He then handed over the case papers to S. H. O. Illahi Bux, who challaned the appellants in the lower Court.
Subsequently all the appellants were sent to the trial Court.
4. At the trial appellants pleaded not guilty to the charge, while the prosecution examined Ali Khan, P. W. 1, Juma P. W. 2, Alam Khan P.3, Ghulam Hussain P. W. 4, Mashir Muhammad Moosa P. W. 5, Mashir Hashim P. W. 6 and A.S.I.P. Muhammad Shafi P. W. 7.
5. In their respective statements all the appellants denied the commission of crime and the motive.
They alleged that the witnesses had deposed against them due to the dispute over the lands, situated adjoining their houses. It was further alleged that the witnesses had pressed the appellants party to sell out their lands, but on their refusal they falsely involved them in this case.
No evidence in defence was however led.
6.The learned trial Court taking into consideration the evidence before it convicted and sentenced the appellants above named as hereinbefore mentioned and consequently the appellants have filed the above appeal, on the grounds mentioned in the memo. Of appeal.
7. The learned Advocate for the appellants in support of the above appeal submitted as under :- (a)That all the prosecution witnesses are closely related and the appellants have suggested a family land dispute between the parties and consequently the statements of the prosecution witnesses required independent corroboration, which is not ac all available in the present case. In this connection the learned Advocate for the appellants relied upon case reported in PLD 1981 Kar.
1.
(b)That prosecution failed to examine any independent prosecution witnesses in respect of the alleged motive and consequently the motive cannot be used as corroborative piece of evidence, on the basis of the statements of the prosecution witnesses, who are alleged to have enmity with the appellants. In support of these contentions the learned Advocate for the appellants relied upon case reported in 1981 SCMR 132.
(c)The learned Advocate for the appellants further submitted, that there was legally insufficient evidence on record to warrant the conviction of the appellants as except for la. W. 4 Ghulam Hussain, who was disbelieved by the learned trial Court, rest of the prosecution witnesses have stated that they only saw appellants running away from the wardat.
(d)That the prosecution story is improbable. He further stated that although all the P. Ws. In their 161, Cr. P.C. Statement have stated, that they saw the appellants setting fire, but before the learned trial Court they denied this fact, except for P. W. Ghulam Hussain, who was disbelieved by the trial Court and as such otherwise also no reliance can be placed on the statements of such prosecution witnesses.
8. In view of above submissions the learned Advocate for the appellants submitted, that the prosecution has failed to establish its case beyond reasonable doubt.
9. The learned Advocate appearing for the State at the outset submitted, that he was not supporting the impugned judgment as no in--dependent prosecution witnesses, who could have been available, have been examined by the prosecution and three prosecution witnesses namely Ali Khan, Juman and Alam Khan have contradicted their statements, as given under section 161, Cr.
P. C. While deposing before the trial Court.
10. I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & F of the learned trial Court as well as the impugned judgment any the authorities cited by the learned Advocate for the appellant before me.
11. Prosecution case rests upon the statements of P.Ws. Ali Khan, Juma, Alam Khan and Ghulam Hussain. The appellants have alleged enmity against these P. Ws. On account of their refusal to sell their lands adjacent to the houses of P. Ws. There are material contradictions in the statements of P. Ws. P. W. Ali Khan stated before the learned trial Court, that on coming out, they saw appellants running away from wardat, whereas in F. I. R. This P. W. Has stated that, they saw all the appellants setting fire to their, houses. P. W. Juma stated before the learned trial Court, that they actually saw appellants setting fire to their houses. However in cross-examination he admitted, that they had seen appellants, when they had covered 10/15 paces from wardat. P. W. Alam Khan in his statement before the learned trial Court stated, that when they came out, they saw P. W. Ali Khan's house under fire, while appellants were seen going away, after causing said fire. P. W. Ghulam Hussain in his statement before the learned trial Court stated, that when they came our, they saw appellants running away from wardat, after setting fire to house. It is admitted position, that all these P. Ws.
Simultaneously came out, but except for P. W. Juma, no other P. Ws. Have clearly stated, that they actually saw appellants setting fire. In view of these facts on record, in my opinion, statements of P.
Ws. Alleged eye-witnesses required independent corro--boration. No independent witnesses of the locality are alleged to have seen the incident nor attracted on scene due to fire, although Mosque and cattle-pond was nearby. It is also significant to note, that all, appellants, who are brothers inter se should have chosen broad day--light for committing this mischief, when it was possible for them to do so at night, indiscreetly. The statements of appellants under section 342, Cr. P. C. That they have been falsely involved due to their refusal to sell land to complainants side, cannot in the circumstances of the8 present case be ignored. Learned trial Court has based its conclusions and convicted appellants on the basis of their alleged presence, near scene of offence, at the time of alleged fire and motive suggested by P. Ws. I see no reason to agree with such conclusion and finding of the learned trial Court, in face of material contradictions between P. Ws. Inter se and enmity suggested by the appellants in their statements under section 342, Cr. P. C, which was suggested to P.Ws. Though denied by them in my opinion, prosecution has failed to establish its case beyond reasonable doubt, against all the appellants.
12. Therefore, I allow the above appeal and set aside conviction of appellants and sentences awarded to them by learned trial Court and acquit them by giving them benefit of doubt and discharge the bail bonds executed by the appellants in the above appeal.