MUHAMMAD ASHRAF Versus THE STATE
FALAK SHER, J--- -Muhammad Ashraf appellant (25) having been convicted and sentenced under section 436, P.P.C. to 10 years' R.I. with a fine of Rs.5 lac in default to serve 2 years' R.I., in the event of its recovery Rs.3 lac to be paid to the complainant with the balance payable unto the State, vide the impugned judgment, dated 3-3-1993 by the Judge, Special Court constituted under the (Suppression of Terrorist Activities) Special Courts Act, 1975, Faisalabad has preferred the present appeal emanating out of the following facts.
2. Dr. Muhammad Irfan Wali P.W.1 on 7-4-1992 recorded F.I.R. Exh.PA. with Rafiullah Khan, Moharrir Head Constable P.W.2 at Police Station Dijkot alleging setting ablaze of his Toyota Corrolla 1986-87 model car bearing Registration No.7660/IDD parked on the preceding night in the lane adjacent to Haji Ghulam Muhammad's house (sister's father-in-law) on whom he had called on 5-4-1992 alongwith the family members for Eid celebrations, by the appellant treating it to be of the latter's son with a view to avenging expulsion from the house for disapproved traits as per reporting by Riaz-ul- Haq P.W.3 and Abdul Razzaq (given up as won over).
3. Muhammad Jamil, A.S.I. P.W.5 testifying the investigation viz., preparation of the site plan Exh.P.C., securing into possession the burnt vehicle vide memo. Exh.P.B., arresting the appellant on 3-5-1992 in cross-examination affirmed that neither makes (sic) of the P.Ws. find mention in the site plan nor did he investigate short circuiting of the battery wiring being cause of the fire.
4. The complainant deposing to the prosecution story explained that around i1-30 p.m. attracted by the noise he came out of the house alongwith host and witnessed his car being on fire which alongwith others he endeavoured to put off and was subsequently apprised by Riazul Haq P.W.3 and Abdur Razzaq (won over) of the appellant being the culprit.
5. Riaz-ul-Haq P.W.3 affirming the ablaze pleaded ignorance as to the author thereof thus was declared hostile whose brother Anwar-ul-Haq P.W.4 vouched recovery of the burnt car.
Whereas the appellant entering the witness-box under section 342, Cr.P.C. as well as on oath under section 340(2) ibid pleaded false involvement.
7. Whereupon the verdict under appeal was returned legality whereof has been assailed by the learned counsel for the appellant contending it to be a case of no evidence, viz., neither of the prosecution witnesses in particular the complainant and Riaz-ul-Haq P.W.2, furnishing the ocular account has admittedly witnessed the occurrence factum whereof is patently demonstrated by the record.
8. Consequently nothing being available on the record tending to connect the appellant with the offence charged the appeal is allowed and the appellant's conviction and sentence is hereby set aside being a nullity in the eye of law. If not required in any other case he should be released forthwith.
N.H.Q./M-1323/L Appeal accepted.