P L D 1964 (W (PLP)

(1) Appellants Niazoo and Kouro have been convicted of an offence punishable under section 395 read with section 397, P. P. C. and each of them has been sentenced to suffer rigorous imprisonment for seven years. (2) Appellants Juwan and Mitho have been convicted of offences punishable under sections 395 and 323, P. P. C. and each of them has been sentenced to suffer rigorous imprison ment for five years for the first and one year for the second offence. These two sentences against them have at the same time, been ordered to run concurrently. It is against these convictions and sentences that they have come in appeal to this Court.

2. According to the prosecution, Achar, son of Khair Muhammad, loaded his bullock‑cart with his household effects and personal belongings at about midnight between the 19th and 20th of September 1961, and accompanied by his brother‑in‑law, Anwar left his house at Kandbkot in order to go to Kashmor where he had secured the job of a Chaukidar. They were asked to stop their bullock‑cart after Achar and Anwar had covered about two to three miles while proceeding along Kandhkot Kashmor road. As soon as they did so, five persons, i.e., the four appellants and one unknown person, had approached them. Appellants Niazoo and Kouro were at that time armed with hatchets, while the others had sticks in their hands. Appellant Juwan and Mitho gave some stick blows to P char and Anwar as soon as the appellants' party approached them. Thereafter, the culprits broke open Achar's boxes and took away most of his household effects and personal belongings along with his bullocks.

3. Sometime after the culprits had gone away from the scene of offence, Achar, accompanied by Anwar, returned to Kandhkot, went to the police station and got his report recorded at about 7 a.m. on the 27th of September 1961.

4. In course of the investigation, on the 30th of September 1961, the investigating officer arrested all the appellants and recovered some of the stolen property from appellants Niazoo, Juwan and Mitho and on the following day the stolen bullocks from appellant Kouro. All the stolen property that had been recovered from the appellants was shown to complainant Achar on the 3rd of October IY61 and identified by him as belonging to him, the same as had been taken away by them in course of the occurrence under consideration, after he, along with his brother- in‑law, Anwar, had been assaulted and injured by them.

5. According to their version, the appellants had been falsely involved in this case at the instance of two Zamindars, namely, Ali Muhammad and his cousin, Ghulam Muhammad, because of their enmity with another Zamindar, namely, Bhoot Khan, who was their landlord. From the evidence of both Achar and Anwar it appears that the occurrence under considera tion had taken place‑on a dark night. According to their version, they had started from Kandbkot after taking their night meal and bad covered only about two to three miles while they had been stopped by the culprits. Achar has, no doubt, stated in his first information report that it was at Asur time (some time shortly before dawn) when the culprits had stopped his cart, but he has, at the same time, explained that even at that time it was dark. Even if it is believed for a moment for the sake of argument that Achar, along with his brother‑in‑law Anwar, had started loading his cart with his household effects and personal belongings after taking his night meal and that is why he had not been able to start for Kashmor before midnight, it could hardly be maintained that the position had, in any way, appreciably been changed so far as the darkness of the night was concerned. As a matter of fact, even if it is accepted, as stated by Achar in his first information report, that it was at Asur time that the occurrence under consideration had taken place, according to his own version, there was no light even at that time. Thus, it would appear that neither Acbar nor Anwar could have identified the culprits, in view of the fact that the occurrence in question, according to their own version, had taken place on a dark night.

6. It is, however, urged by the learned counsel for the State that both Achar and Anwar had been able to identify the appellants, as they had been watching them for about half an hour while they were busy in breaking open the boxes, removing and distributing their contents with the help of two torches. In connection with this argument it has, first of all, to be pointed out that according to Achar's version it were appellant Kouro and the unknown absconder who had the torches m their hands. The version of Anwar, however, is somewhat different on this point. He has stated that it were appellant Niazoo and the unknown absconder who had the torches with them. This discrepancy in Itself makes it rather doubtful if anyone of the culprits had a torch in his hands and used it in course of the occurrence under consideration. Even if it is believed for a moment for the sake of argument that two of the culprits had torches and had used them in course of the occurrence, it could hardly be accepted that they were doing so in such a manner as to enable Achar and Anwar to identify their features. If the said torches were being flashed by the culprits who had them in their hands for the purpose of ascertaining the nature and the quality of the household effects and personal belongings of Achar, all of them, in all probability, must have clustered round them, while he (Achar) along with Anwar after having been assaulted and injured, were sitting aside. In such a situation, it is quite improbable that either of them had been able to identify the appellants, who were not known to them earlier, with the help of the occasional flashes of the torches in question.

7. Some of the property, which Achar had been robbed of, was alleged to have been recovered from the possession of the appellants, although they had denied that any such property had been found in their possession or produced by them before the investigating officer. The property that is said to have been recovered from the appellants is alleged to have been shown to Achar who, according to the prosecution, had identified as belonging to him, the same as he had been robbed of in course of the occurrence under consideration. This identification, however, was not made in the presence of any Magistrate, although the other identification tests on the same day were held by Mr. Mohanlal, Magistrate III Class, Kandhkot. In view of this position, it is doubtful if the said property had actually been identified by Achar as belonging to him, the same as he had been robbed of in course of the occurrence under consideration although in course of his examination during the appellants' trial he had claimed it to be his own.

8. According to the learned counsel for the State, the appellants had also been identified as the culprits by Achar as well as Anwar in an identification parade held during the investigation and thereby their word against them had become considerably strengthened. So far as this contention is concerned, it would suffice to point out, apart from what has already been stated, as regards the night of occurrence being dark, that Achar himself had admitted to the effect that he had been going to the police station practically every day to enquire about its progress, while the appellants were detained there before the identification test was made. Moreover, at the time of their identification test, the appellants were admittedly mixed up with only a few other persons and, therefore, it was not difficult for Achar and Anwar to pick them out after they had seen them at the Police Station.

9. Considering these facts, I have been led to the con clusion that the appellants' convictions are not warranted by the evidence produced against them in this case. Accordingly, I allow their appeals, acquitting them and setting aside their convictions and sentences. K B. A. Appeal accepted.