SHARAFAT ULLA ALIAS SHARAFAT ALI----CONVICT- versus CROWN

The Indian Penal Code, 1860, Sections 436 and 454 of the Pakistan Penal Code, which is of interest to the witnesses and there is no independent material discrepancy in the evidence, is far from being prosecuted by the sessions judge in support of the main charge of arson. The evidence given is far from done. To be sure that I am unable to consider all three witnesses of the prosecution as independent or invasive witnesses, any wrongdoing or previous hatred between the manager and the accused has not been proved by the Indian Constitutional Code, 1860, Sections 436 and 454. Those who are interested in the witness and are not free. The material contradicts in the evidence and the evidence presented by the prosecution in support of the main indictment of the firearm before the session judge is not convinced that I am unable to consider all three prosecution witnesses as independent or unwanted witnesses. Or the unreliable trust has been established between the manager and the accused

PLD 1949 Baluchistan 4

Single Bench

A.R. Khan J.C.

SHARAFAT ULLA alias SHARAFAT ALI----Convict----Appellant

Versus

CROWN Respondent

Criminal Appeal No. 19 of 1948, decided on 1^st September 1948 from the order dated 15^th 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.

The shop has an expanding metal door and an inner door, which has an inside lock and panes of glasses. An attempt was made by the Public Prosecutor before me to show that earlier in the day, when the accused came to the shop in the company of the manager's two brothers‑in‑law, the expanding door was not locked, though the lock on it was placed in such a position as to creates an impression that the lock was secure and further that, later, on setting the shop on fire the accused replaced this lock by another one in order to obstruct speedy entry of people to extinguish fire, whenever it should be discovered. The suggestion seems to be fantastic. What the Public Prosecutor has totally failed to establish and which in my opinion is very material, is the condition of the inner door when the Police‑and the Fire Brigade arrived, There is not an iota of evidence before me to show that it was already open. The lock on the outer expanding door was no doubt broken open, but there is nothing to show whether the inner door was found open or was broken. According to the F. I. R. and the statement made by him before the Court, the manager had expressed his suspicions against the accused on the ground that the latter had been stealing money from the shop for some time and had stolen the wallet of a certain customer who had visited the shop some time earlier. I am constrained to say that the general investigation of this case has not been very thorough and in view of the manager's complaints regarding previous thefts, it was incumbent on the Investigating Officer to verify this important fact by at least examining the person whose wellet was said to have been stolen. Examining these aspects, I am for from impressed with the prosecution case as presented before the Sessions Judge. No motive, which is so important in a case of this type, has been proved. The manager, according to his own version has overlooked the accused's previous lapses. The accused lived with the manager who provided him with meals. The accused knew as employee of the same shop that there was hardly any cash available. What pecuniary gain he could derive by setting the shop on fire. No ill‑will or previous grudge between the manager and the accused has been Proved. In my view the prosecution have failed to prove beyond reasonable doubt the charge brought against the appellant. The accused is obviously entitled to at least the benefit of this doubt as the rule of law is that when the prosecution evidence is unsatisfactory or doubtful, as certainly it is in this case, the accused must be given the benefit of doubt, It may also be emphasized here that the weakness of the, defense could not bf allowed to bloster up a weak case for the prosecution, which must not only establish the guilt of the accused but should do so beyond any reasonable doubt. As the prosecution have failed to do so in this case, I accept the appeal and set aside the conviction of the accused and the sentence passed upon him. The accused should, therefore, be set at liberty forthwith K. M. A. Appeal accepted.

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