1984 P Cr (PLP)

The learned Civil Judge and F. C. M., Dadu framed the charge against the applicants vide Exh.2 and recorded their plea vide Exhs.3 and 4, respectively, to which they pleaded not guilty and claimed to be tried. The prosecution have examined the complainant Muhammad Yousuf Exh. 5 and the P.Ws. Jan Muhammad Exh.6, Buxial Exh.8, Raza Muhammad Exh.9, S.H.O. Muhammad Siddik Exh.11 and the A.S.1. Hussain Bux Exh.12, the P.S.1, has given up the P.S. Soomer vide his statement Exh.7 and has closed the prosecution side vide his statement Exh.13. The statement of applicants Naboo and Ibrahim have been recorded at Exhs. 14 and 15, respectively in which they have denied all the allegations. The applicant Naboo in his statement Exh.14 has claimed the bullocks to be his own and has alleged that the A.S.I. Hussain Bux is friendly to Akber Khan Bughio, who is inimical to him and as such has been falsely implicated by the A.S.I. Both the applicants have led defence. The applicant Naboo has examined the D.Ws. Muhammad Saffar Exh.16, Ghulam Hussain Exh.17 and Laiq Exh.18 and his defence side has been closed vide the statement Exh.19 of his Advocate. The applicant Ibrahim has examined the D.W. Allahdino Exh.20 only and his defence side has been closed vide statement Exh.21 of his Advocate. The learned Magistrate after hearing the party Advocates and going through the evidence adduced by the parties has passed the impugned judgment and has convicted the applicants as shown above. The applicants being aggrieved to and dissatisfied with the impugned judgment and conviction came with separate appeals, as described above, in the Court of Sessions at Dadu. Both the appeals filed by appellants were dismissed vide judgment dated 5th August, 1981 of learned 1st Additional Sessions Judge, Dadu and consequently appellants have filed the above petition, on the grounds mentioned in memo of petition. The learned Advocate for the appellants in support of the above petition, submitted as under: - (a) That factum of theft against the appellants was not proved at all. On the contrary applicants claimed the bullocks as their property and examined 3 D.Ws. in support of their this contention, that the learned trial Court as well as appellate Court without cogent reasons discarded their statements. (b) That bullocks were alleged to .have been secured in Nakabandi from possession of the appellants under section 550, Cr.P.C. and as such seizure ought to have been reported to Magistrate for disposal under section 553, Cr.P.C. but this procedure was not followed. (c) Bullocks were not produced before the learned trial Court as case property and as such no orders in respect thereof could' have been passed by both the learned lower Courts. (d) That complainant was not put to identification of bullocks, and his mere word was accepted by learned lower Courts and statements of 3 D.Ws. were discorded on this point, without cogent reasons. (e) That provisions of section 103, Cr.P.C. for securing independent and respectable witnesses of locality was ignored and police officers were made Mashirs of the seizure and on this ground alone conviction of the appellants cannot legally be maintained. (f) That complainant is shopkeeper and as such his mere word that bullocks belong to him, ought not to have been accepted, in pre ference to statements of 3 D.Ws. (g) In the alternative, learned counsel for applicants submitted that applicant Naboo remained in custody from 4th January, 1975 upto 10th November, 1975 and applicant Ibrahim remained in custody from 4th January, 1975 till 30th August, 1975 and as such this period may be considered as sufficient punishment for applicants, in view of the facts and circumstances of the present case. Learned counsel relied upon cases 1979 P Cr. L J 711 and P L D 1979 Kar.

31. None appeared on behalf of the State and since above Revision is pending from 1981, I decided to dispose of the same, with the assistance of the learned Advocate for applicants. I have carefully considered the above submissions made by learned Advocate for applicants and have gone through R & P of the learned trial Court and both impugned judgments of both the lower Courts and cases cited by the learned Advocate for applicants. It is admitted position, that complainant was not put to identification test in respect of the bullocks in question nor he produced any documentary evidence or oral evidence to prove that bullocks belonged to him. Applicants on the other hand produced 3 D.Ws. who have stated that applicants were arrested from their houses and bullocks in question were secures by police from the house of applicant Naboo and belonged to him. I find both the learned lower Courts have failed to properly appraised evidence brought on record about ownership of the bullocks and rejected the statements of 3 D.Ws, without cogent reasons. The learned trial Court as A well as appellate Court failed to notice, that police party did not take independent Mashirs for said purpose and alleged recovery and arrest of applicants is based on the statements of police witnesses only. Applicants by examining 3 D.Ws have at least created doubt in prosecution case about ownership of bullocks and the manner in which and the place from which applicants were arrested and as such this benefit must go to applicants. Cases cited by learned Advocate for applicants 1979 P Cr.L J 721and P L D 1979 Kar. 1 fully support the contention of the learned counsel. Keeping in view above conclusions of mine, in my opinion prosecu tion has failed to establish its case beyond reasonable doubt against the applicants. Therefore I allow the above petition and set aside convictions of the applicants by both impugned judgments and acquit them by giving them benefit of doubt and discharge the bail bonds executed by applicants in above petition. S. G. D. Revision allowed.