' MUHAMMAD RAFIQ TARAR, J.---This appeal by Naseer Ahmad alias Phup is directed against the judgment of the learned Division Bench of the Lahore High Court dated 21-7-1992 whereby his appeal challenging his conviction under section 436, P.P.C. Carrying sentence of R.I. For five years and a fine of Rs,5,000, was dismissed.
2. The prosecution version as narrated by Mst. Salma Sultana first informant at the trial was that on 6-10-1988 she alongwith her maternal-grandmother and sisters was sleeping in her house. Her bed was near a window which opened towards the courtyard. At about 2-30 a.m. Or 2-45 a.m. "the accused sprinkled kerosene oil" on her body and put her on fire. She felt heat on her right heel, back and hair. She woke up raising hue and cry and saw the accused who was running outside the room, in the light of a bulb. Her clothes were on fire. Her sisters woke up and put water on her. Her sisters and maternal-grandmother also saw the accused running away. Their neighbourer Nazir Ahmed and his son Boota also joined in extinguishing the fire with water. Her mother was in the hospital on that night. Her sisters Naseem Akhtar and Nusrat Fardous went to the hospital and informed her about the occurrence whereupon she went to Police Station Mustafabad and after informing the police came back with a Thanedar and two constables. Her statement was recorded by the Sub-Inspector who also took in possession burnt articles. She went to Police Station Mustafabad with her auntie Sabia Niazi and was medically examined in the hospital.
' About the motive she stated that on 9-7-1988 at 2-30 a.m. The accused (appellant herein) had committed theft in their house. She, her mother and two sisters saw that "he has searched four trunks at that time". They raised alarm attracting their neighbourer and father of the accused. The latter tendered apology in writing and her mother "pardoned the accused". The accused harboured grudge against them on that score.
' The case was registered on the following day at 12-45 p.m. On the basis of the statement of Mst.
Salma Sultana recorded by Muhammad Aslam ASI at the spot at 12-30 noon. After recording the statement the ASI took into possession Gadda P1, pillow covers P2 to 4, Chaddar P5, shirts P6, P7, P8/1 and Dopatta P9, all in burnt condition, vide memo Exh. PC. He formally arrested the accused on 7-10-1988. Earlier the accused had appeared before him on 6-10-1988 but his arrest was deferred "as he had to give his defence". On 7-10-1988 a plastic container was recovered on the pointation of the accused vide memo Exh. PD. After the usual investigation the appellant was challaned.
2. On 6-10-1988 at 3-00 p.m. Dr Muhammad Hussain medically examined Mst. Salma Sultana and found multiple superficial burns in an area measuring 10 c.m. x 8 c.m. At lower left chest with blackening of wounds. She complained of pain at the heel of right foot with history of burn at heel.
However, no mark of burning was found on the heel. She also narrated history of burning at head but no injury was found there.
3. At the trial Mst. Salma Sultan, her maternal-grandmother Fazal Begum and her sister Mst Naseem Akhtar supported the prosecution version.
4. The appellant pleaded not guilty to the charge and denied the prosecution allegation against him. When asked why this case against him, he made the following statement:-- "Persons of doubtful character used to visit in the house of Mst. Salma Sultana P.W. Which was objected to by my father and other persons of the Mohallah. Mst. Badr Munir mother of the complainant Salma Sultana more grudge against me and my father. She filed a private complaint against me and my brother and has fabricated the present case."
' He examined two witnesses in his defence who supported his version.
5. After examining the evidence on the record the trial Judge held that all the witnesses "have unequivocally stated that the accused was present at the time of occurrence and have supported the prosecution version", therefore, he was convinced that the accused had "indulged in the present occurrence". In appeal the learned Judges of the High Court observed that the witnesses were natural being inmates of the house and they had seen the occurrence.
6. The learned counsel for the appellant contends that in this case the F.I.R. Was deliberately delayed with a view to gain time to build up a story and the appellant was falsely implicated due to suspicion. He further submits that there is no evidence on the record to show that the P.Ws. Had seen the appellant setting fire or were in a position to identify the person who had played the mischief. The learned State counsel and the learned counsel for the complainant, however, supported the impugned judgment.
7. After considering the submissions made at the Bar in the light of evidence available on the record we are of the view that the prosecution has not been able to prove its case beyond a reasonable doubt. On prosecution's own showing the occurrence took place at 2-45 a.m. In the night while Mst. Salma Sultana reported the same to Muhammad Aslam ASI at 12-30 noon on the following day at the spot. No explanation has been offered for this inordinate delay. The nature of the occurrence was such that if the complainant party had been sure that the culprit/miscreant was none other than their own neighbourer who had earlier tried to commit theft in their house they would not have delayed the report for more than nine hours. Mst. Salina Sultana stated that her mother went to the police station and brought a Thanedar and two constables with her and her statement was recorded by the Sub-Inspector. She claimed that her statement was recorded at the police station but the scribe of the statement namely Muhammad Aslam ASI categorically stated that he recorded it at the spot. He further stated that he remained with the complainant at the spot for 3/4 hours. In his statement before the Magistrate with which he was duly confronted he had stated that Mst. Salma Sultana had met him at 2-45 a.m. On 6-8-1988. Mst. Naseem Akhtar P.W.6 sister of the complainant stated that police arrived at the spot at 5-00 a.m. With her mother and recorded the statement of Salma Sultana "at our house". In view of the above it appears that the police came to know of the occurrence soon after and remained at the spot for sufficient time but no report was made before 12-30 noon of the following day. It can, therefore, safely be inferred that the intervening time was utilized for deliberations and possibility of the B appellant having been involved on guess-work/mere suspicion cannot be ruled out.
8. Mst. Salma Sultana is not a reliable witness. In the FIR she stated that on the fateful night she was sleeping in her room as usual. At 2-45 a.m. She felt heat in the room and woke up. Her waist/back had burnt. She found the room and her bedding on fire. She rushed out of the room and raised alarm attracting her sisters, maternal-grandmother and her neighbourer Nazir Ahmed and his son Boota who extinguished the fire. After this she stated that there was an electric bulb on the roof and in its light she, her aforesaid sisters/maternal-grandmother and neighbourers saw the appellant jumping over the wall towards his house from the roof.
9. At the trial she straightaway came up with the version that at "about 2-30 a.m. Or 2-45 a.m. In the night the accused sprinkled kerosene oil on my body". This is a very material improvement. She had not so stated in her deliberately delayed FIR. The improvements made by her at the trial regarding the burns she suffered during the occurrence are belied by the medical evidence. She stated that she felt heat on her right heel and hair in addition to back. The doctor who examined her stated that there was no burning mark on the heel or the head although she complained of "pain at heel of right foot with history of burning". Similarly there was no injury on the skull or the neck.
Nazir Ahmad P.W. Who was the only unconnected witness in the case did not support the prosecution. He was cross-examined by the prosecution with the permission of the Court. He denied the suggestion that he had seen a person running from the house of the complainant party.
Criminals and bad characters generally chose night time for their activities so that after committing the offence they may escape unnoticed by anybody. If anybody from outside had entered the house of the complainant party to play mischief of the type he would not have remained there till the inmates of the house had awoken and even neighbor had reached there. At this stage it need be mentioned that Basharat Mahmood who was a witness of the recovery of burnt articles is the real maternal-uncle of Mst. Salma Sultana. He lives in the same street and only 3/4 houses intervene between his house and the house of the alleged occurrence. He stated that he learnt about the occurrence at 6-30 a.m. And went thereof his own. If any occurrence had taken place at 2-45 a.m. He must have been informed of it soon after because there was no male member in the house of the complainant family.
For the foregoing reasons we are of the view that the prosecution has not been able to prove its case against the appellant beyond a reasonable doubt. We therefore, allow his appeal, set aside his conviction and sentence and acquit him of the charge. He is on bail. He shall discharged from his bail bond.