1988 PLP 403 (MLD)

This order shall dispose of two revision petitions, i.e., Cr.R.No. 744/75 filed by Bilal alias Balia. Daula and Walloo sons of Nabu caste Waseer R/o Chak Ne. 581/GB and Cr.R.No. 813/75 filed by Shahamand son of Nabu Waseer R/o Chak No. 431/GB, district Lyallpur, as both of them have arisen from the order of Sessions Judge, Lyallpur. dated 30‑8‑1975 whereby the appeals filed by them against their conviction and sentence recorded by Magistrate 1st Class, Jaranwala, vide order dated 22‑3‑1973 were dismissed.

2. The prosecution case briefly was that on 15‑5‑1972 at Shamwela, Shameer complainant was bringing his cattle comprising five buffaloes and two cows to his village from the sem canal side. He was confronted by Balia, Daula, Walloo (petitioners herein) with three unidentified persons armed with guns and pistols. They at the point of gun snatched the cattle from him, gave him fist blows and took him to their Dhari where they tied down his arms at his back with a cloth and leaving him there took away the cattle to some unknown place. The occurrence was witnessed by Bashir (P.W. 2). The motive for the offence was stated to be that Daula (petitioner) had demanded the hand of Mst. Nekan daughter of Shameer (complainant) for himself about 3‑1/2 years before the occurrence but the complainant declined the demand and instead married her with his nephew Amir Ali. The complainant was got released subsequently by his co‑villagers. A tracker was called to pursue the tracks of the culprits but the tracks disappeared at some distance. Next morning Shameer lodged report Ex‑PA with SI Mukhtar Ahmad at Chowk Ilamandka where the SI was present in connection with patrol duty. A formal FIR Ex‑PA/1 was drawn up by MHC Abdul Karim at Police Station Lundianwala, District Lyallpur (now district Faisalabad).

3. During investigation on 26‑5‑1972 the police raided the Dhari of Shahamand and recovered three buffaloes and a calf which had been stolen from the complainant. They were taken into possession under memo Ex‑PE in the presence of Munda (P.W. 3), Shah Beg and Santa P.Ws. (not produced). After ‑usual investigation the petitioners were challaned to Court.

4. Shahamand (petitioner) was charged under section 411, P.P.C. while the remaining petitioners were charged under section 382, P.P.C. to which they pleaded not guilty. The prosecution in support of its case examined four witnesses. The petitioners when examined under section 342, Cr.P.C., denied the allegations and professed innocence. They produced three witnesses in their defence, namely, .Shah Beg (given‑up P.W.) was examined as (DW 1), Talib (DW 2) and Mushtaq Ahmad (DW 3) who stated that no occurrence as stated by the P.Ws. had taken place.

5. Learned trial Court on consideration of the material on record convicted Shahamand (petitioner) under section 411, P.P.C. and the remaining under section 382, P.P.C. and were sentenced to one year's R.I., each. Their appeal also failed, hence these revision petitions.

6. These revision petitions were admitted to regular hearing in the year 1975 and petitioners' sentence was also suspended. It may be stated that Daula (petitioner) has since died, therefore, Cr.R.No. 744/75 to his extent stands abated.

7. I have heard learned counsel for the parties and also perused the record. It may be pointed out that Shahamand (petitioner) during the trial made a statement on 11‑1‑1973 that Balia, Walloo and Daula (petitioners) had come to his Dera with two cows and five buffaloes and requested that they be allowed to stay there and take rest at mid‑day. He allowed them and also served them with meals. Meanwhile the police alongwith the track party reached there and the afore‑mentioned accused seeing them rode away on their horses leaving the cattle there. It may also be mentioned that according to Shameer P.W., he saw and identified his cattle in the custody of police 10/11 days after the occurrence. Learned trial Court has convicted Shahamand observing that he had confessed that the stolen animals were recovered from his Dera. I think, learned Courts below were not right in treating his statement as confession of his guilt because he had made an exculpatory statement as there is nothing on record to show that A fie knew that the cattle which were brought to his Dera by the other petitioners were stolen property, therefore, holding Shahmand as guilty under section 411, P.P.C. is not justified. The result is that criminal revision filed by Shahamand (CI.R.NO. 813/75) is accepted, his conviction and sentence is set aside and he is acquitted. He is on bail. He stands discharged of his bail‑bonds.

8. As for the case of Balia, Daula and Walloo (petitioners), it may be pointed out that the learned Courts below have erred in law in using exculpatory statement of Shahamand, co‑accused, against the petitioners. Furthermore, the prosecution story about snatching of cattle, from complainant Shameer by the petitioners after giving him blows with butts of their guns is highly improbable. No medical evidence had been adduced to prove injuries of the complainant suffered at the time of occurrence. Had it happened m the presence of Bashir P.W. then he would have called villagers and pursued the petitioners and recovered the cattle within no time because the cattle could not run away and B disappear soon. It is not the prosecution case that at the time of occurrence the petitioners were on horse‑backs. ' I am, therefore, not satisfied from the prosecution evidence brought on record that any occurrence of snatching of cattle at the point of gun by the petitioners from the complainant had taken place. Resultantly, I find that the prosecution has failed to bring home the charge under section 382, P.P.C. against these petitioners. Consequently, I allow Cr.R. No. 744/75, set aside the conviction and sentence of the petitioners and acquit them. They are on bail. They stand discharged of their bail‑bonds. M.Y.H./B‑44/L Petition accepted.