1. MUHAMMAD SHARIF, J.-This is an appeal under Article 159(a) of the Constitution against the judgment and order of the High Court of West Pakistan, Lahore, dated the 13th June 1957 setting aide on appeal by the State the order of acquittal of the appellants by the trial Court and convicting them of an offence under section 396, Pakistan Penal Code, and sentencing each of them to transportation for life.
2. Shortly after sunsent on 16th of April 1954, in Chak No. 56/KB a daring dacoity was committed in the house of Muhammad Bakhsh Lambardar. He himself was not present at the time, but his brother Hakim (P. W. 12) was in his residential quarter both the brothers were living in one enclosure. Three of the dacoits carried fire-arms one took his stand on the roof of the kotha, the other remained in the courtyard and the third stood guard in the Gali to the West. Some shots were fired in the air presumably to terrify the villagers and to keep them away. On hearing the reports of the gunshots Muhammad Bakhsh, who happened to be with the patwari of the village in the company of some other villagers, rushed towards his house. They kept watching while the dacoits ransacked the houses and took away considerable property consisting of clothes and ornaments. As the dacoits emerged with their booty a large number of persons, who had collected by then, followed them.
3. The dacoits ran towards Chak No. 51. Word was sent in advance to the people of that Chak to be vigilant and to be ready with their fire-arms to capture the dacoits. The residents of Chak. No. 51 and those of Chak No. 56/K. B. Continued the chase.
4. On more occasions than one some of die dacoits turned round and fired shots. One Wali Dad, who was ahead of others, received a large number of pellets in his body in consequence of which he died later. Some of the villagers were also injured. The people of Chak No. 51 took positions on the route taken by the dacoits and there was a regular exchange of fire as a result of which two of the dacoits, who were subsequently discovered to be Daim and Sobrab, fell dead on the spot. Their other two companions Rahmat Ullah and Thiraj collapsed in a wounded condition. The remaining members of the gang succeeded in making good their escape. The bundle, containing some clothes and ornaments, was found lying near the wounded culprits.
5. Without loss of time information was sent to the police official who happened to be in village Kot Gholu at 11-15 p. m. He reached the scene at about 1-30 a. m. And recorded the statement of Wali Dad who was' still alive.
6. After investigation, six persons were put on trial. The learned trial Judge convicted two and acquitted four including the two appellants. This order of acquittal was reversed, as mentioned earlier, by the High Court, in the case of the appellants, and one other person who has not appealed.
7. Against Sultan appellant the case rests on the recovery at his instance of clothes, marked Exhs. P.
8. 80 to P.
87. The recovery Memo. Exh. P. M. M. Prepared on 8th of June 1954, mentions eight item of clothes, but there is no evidence to show that these are the same as were identified in Court as Exhs. 1'. 80 to P.
87. In the absence of this important link, the conviction of Sultan becomes doubtful and he can legally claim the benefit of doubt. It might be added that Exh. P. 81 was identified as her own property both by Mst. Zeenat (P.W.39) and Mst. Lal Bibi (P.W. 40).
9. The conviction of Zulfiqar stands on sure ground. There is direct evidence that Zulfiqar was one of the persons who had committed the dacoity. Further, in consequence of the informa--tion given by him there was recovered the gun Exh. P. 76 from under a jal and kari tree and covered with a heap of leaves and could not be seen from outside. According to Mr. Abdul Majid (P. W. 22), Director Forensic Science Laboratory, Lahore, the two twelve bore empty cases, found at the spot had been fired from this very gun. The ornaments Exhs. P. 77 to P. 79 were s buried under the leaves in the middle of a clump of jai and kari trees and were disinterred by Zulfiqar. 'These incriminating pieces of evidence could not be said to have been manufactured.
10. The result is that the appeal of Sultan is accepted while that of Zulfiqar is dismissed.