' SHEIKH ABDUR RAZZAQ, J.--- While present at Dera at about 1100 a.m. On 12-4-1996 complainant Musheer Ahmed, Munir Ahmed, Abid Hussain, Abdul Aziz and Rashid Ahmed were attracted to the noise of their family members. On reaching the spot they saw that Imam Bakhsh, Muhammad Sadiq and Shoukat Ali had set ablaze, the house of complainant, by sprinkling kerosine oil, as a result of which, a wooden window, a cot, seeds of Palak (Spinach), clothes, raw rice and other articles of household had been damaged. On seeing them, the assailants, scaled over the wall and succeeded in making their escape good. Motive behind the commission of such crime is stated to be long-standing litigation between the parties.
2. The complainant then proceeded to police station for lodging report. As Muhammad Bakhsh, A.S.-I. Met him in said village, so he lodged complaint Exh.P.A. Muhammad Bakhsh, A.S.-I., then went to the place of occurrence and secured damaged articles P.2 to P.8 vide memo. Exh.P.B. And also prepared site plan Exh.P.D. On 27-4-1996, accused Shoukat Ali led to the recovery of bottle P.1, which was secured by means of memo. Exh.P.B. After completing all steps of investigation, challan was submitted in Court.
3. Charge under section 450/436/34, P.P.C. Was framed against the accused, who, pleaded not guilty to it and chose to face trial.
4. To establish its case, prosecution examined P.W.1 Musheer Ahmed complainant, P.W.2 Abid Hussain, P.W.3 Abdul Aziz, P.W.4 Muhammad Bakhsh Somero, A.S.-I. And P.W.5 Muhammad Anwar, Head Constable. After giving up Rashid Ahmed, prosecution evidence was closed by learned Deputy District Attorney vide statement, dated 10-6-1996.
5. In their statements jotted down under section 342, Cr.P.C. All the accused denied and refuted the prosecution version and professed their innocence. They neither opted to record their statements under section 340(2), Cr.P.C. Nor produce any defence evidence.
6. After scanning entire data and material, learned lower Court convicted the accused under section 450/34, P.P.C. And sentenced each of them to five years' R.I. And fine of Rs,20,000 in default thereof each to suffer R.I. For a term of six months. Also all the accused were convicted under section 436/34, P.P.C. And each sentenced to suffer R.I. For seven years and fine of Rs,50,000 each in default whereof to undergo R.I. For one year. However, benefit of provisions of section 382-B, Cr.P.C.
Was extended to all of them.
7. Feeling aggrieved accused/appellants have come up in appeal and challenged their conviction and sentences enumerated above.
8. Arguments heard and record examined with able assistance of learned counsel for the parties.
9. It is submitted by learned counsel for the appellants that there are various discrepancies in the prosecution evidence which make it untrustworthy. While elaborating his contention, he submitted that as per statements of P.Ws. 1 to 3, they claim themselves to be present at Dera at the time of occurrence, whereas they have not been shown as such in the site plan Exh.P.D. He further submitted that similarly, P.Ws. Had assessed the damage at Rs,30,000, while deposing in the Court, whereas this fact is not borne out from the contentions of F.I.R. Again he submitted that it has been deposed by P.Ws. 1 to 3, that it was Shoukat Ali accused, who had sprinkled kerosine oil, but such part has been assigned to accused Muhammad Sadiq in the site plan Exh.P.D. Referred above. He also submitted that evidence of recovery of bottle P.1 after 15 days of occurrence is of no value, when such bottles are easily procured from the open market. He next argued that there is inordinate delay in lodging report, as alleged occurrence took place at 11-00 a.m., whereas report had been lodged at 7-00 p.m. He supplemented his arguments and stated that F.I.R. Was deliberately delayed with a view to gain time to build up a story and to implicate the appellants falsely. He also submitted that even the mode and time of alleged occurrence is such that it does not appeal to reason. He submitted that as per prosecution story long-standing enmity is going on between the parties, and even then the appellants chose to set fire to the house of complainant at 11-00 a.m. And felt contended by causing loss which does not commensurate with the alleged act.
He thus, submitted that prosecution has failed to bring home guilt to the accused beyond reasonable doubt, and appeal may be accepted and appellants be acquitted.
' In rebuttal, the judgment under appeal has been supported by learned counsel for the complainant as well as counsel for the State. It is argued by the learned counsel for the complainant that delay in lodging F.I.R. Stands explained in the very contents of F.I.R., as it has been stated therein that the time had been consumed in extinguishing fire, that the mere fact that names of P.Ws. 1 to 3 do not appear in site plan Exh.P.D. Does not prove that said P.Ws. Were not present at the time of occurrence, that similarly discrepancy appearing in site plan Exh.P.D., wherein name of Sadiq has been mentioned instead of Shoukat is due to inadvertence on the part of Investigating Officer and is of little consequence. While commenting about the time chosen by the appellants, he submitted that time of 11-00 a.m. Was selected as at that time all family members are usually out in their fields. He further argued that ocular account stands corroborated by evidence of recovery of kerosine bottle P.1 as well as damaged articles P.2 to P.B. He thus, submitted that prosecution has succeeded in establishing its case against the accused, and appeal merits rejection.
11. After considering the submissions made at the Bar, in the light of evidence on the record, we are of the view that prosecution has not been able to prove its case beyond reasonable doubt. On prosecution's own showing the occurrence had taken place at 11-00 a.m. While Musheer Ahmed reported the same to Muhammad Bakhsh Somero, A.S.-I. At 7-00 p.m. No explanation has been offered for this inordinate delay. Nature of the occurrence was such that if the complainant party was sure that the culprits/assailants were none else than the accused, they would have not delayed the report for eight hours. It can, therefore, be safely inferred that the intervening time was utilized for deliberations and possibility of appellants having been involved on guesswork/ mere suspicions on account of previous enmity cannot be ruled out.
12. A perusal of record shows that the learned Judge based the conviction of all the accused/appellants on the ocular account furnished by Musheer Ahmed first informant (P.W.1), Abid Hussain (P.W.2) and Abdul Aziz (P.W.3) supported by recovery of burnt articles P.2 to P.B. Of course there was also evidence of motive, regarding criminal litigation going on between the parties. Admittedly P.W.2 is nephew of P.W.1 and P.W.3 is also related to P.W.1, as per his own admission. Thus, all the three P.Ws. Are related inter se and in such circumstances, it is not safe to rely upon evidence of such interested and inimical witnesses in absence of any independent evidence, which is lacking in the instant case. It is well-settled that a mere relationship of witness would not be good enough to brand him with interestedness and to discard his evidence, unless the same is tainted with animosity and rancour, which is not lacking in this case.
13. In the instant case, absence of any independent evidence requires their statements to be viewed with great care and caution, particularly with the background of animosity of not less than of murders and of having every chance roping each other falsely or otherwise without leaving any occasion or chance. In that wake, the story of putting the house and belongings of complainant to fire, with a bottle of kerosine oil, empty-handed, without armed and knowing well the presence of inmates of the house, cannot be ordinarily believed. It does not sound to natural course of events nor the appellants could be taken to have assumed the role of dare devil without any material gain or purpose or to achieve any particular object. We are not impressed by the submission made on that score.
14. Prosecution has also tried to seek corroboration of ocular account from evidence of recovery of burnt articles P.2 to P.8, which are alleged to have been secured vide memo. Exh.P.C. Admittedly, these incriminating recoveries (P.2 to P.8) were not kept in sealed parcel, as such, it lost its credibility as well as its authenticity.
15. For the foregoing reason, we are of the view that prosecution has not been able to prove its case against the appellants beyond reasonable doubt. We, therefore, allow this appeal, set aside conviction and sentence and acquit them of the charges. They are ordered to be released forthwith, if not required in any other case.