I propose to dispose of above three appea:s, which are in fact only two appeals, one bearing Appeal No. 153/81 and C. R. Appeal No 331 /80 which are filed by appellant Ghulam Nabi, whereas Appeal No. 154/81 which has been filed by appellant Mooso, from jail, jointly with co-appellant Ghulam Nabi, but has been given separate number as these appeals arise out of common judgment dated 4th December, 1980 of the learned Sessions Judge, Dadu, in Sessions Case Nos.
219/79 and 34/80, whereby appellants have been convicted under section 14(1) of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979, read with section 379, P.P.C. For having committed theft liable to Hudood and sentenced each appellant to suffer R. I. For two years and also to pay fine of Rs. 1,000 or in default to further undergo R. I. For six months. I propose to dispose off them, by this common order. The appellants have preferred above appeals, on the following facts and grounds :-
2. Rajib son of Haji Hayat lodged F.I.R. On 27th August, 1979 at 9-15 p.m. At T. R. Khan stating therein, that he had 54 goats, out of which 25 goats belonged to Haji Abdul Majid. All these herds of goats used to be grazed by him. On 23rd August, 1979 he made all these goats to sit inside his house after taking his dinner and then slept near the goats. At about 3 a.m. He got up for Sahri purposes, as it was a month of Ramazan, but he did not find his goats there. Accordingly, he made search for the same, but with no result. He apprehended that the goats must have been taken away by some thieves. Accordingly, he called his brother Attur and neighbourer Mohammad Bux. All of them found hoof marks along--with footprints of three persons, on torchlight. Two prints were naked, while one was in Rabbar Chapal and the same were going towards south. The complainant then asked his brother Attur to inform Abdul Majeed about this incident and he alongwith Mohammad Bux started tracking the footprints and hoof marks. However, when they reached near village Gorandi, Attur, Abdul Majeed and Mohammad Saleh also reached there, to whom he narrated the incident.
Thereafter all of them continued tracking footprints and hoof marks and when they reached near Bodo Jabal at about 6 p.m. They saw three persons taking away there goats. All of them were armed with lathis, when the complainant party reached near three persons, they made good their escape leaving the goats there. Out of these three persons, two were identified to be the present appellants Mooso and Ghulam Nabi of Tehni Taluka Sehwan. The third person, however, could not be identified by them. The goats which were left by the thieves were found to be 52, while two were obviously missing.
3. This report of the first informant was recorded by ASIP Zardar Khan of T.R. Khan Police Station. He then took up the investigation and so he went to, the wardat on 27th August, 1979 and the same was inspected in preence of Mashir Baz Mohammad and Pehlwan, .On the showing of the complainant. It was situated outside the Alwan of the complainant's house in village Dadd Gabool.
Refuse of goats was found lying at the wardat. He also noticed hoof marks of goats. Accordingly he prepared such mashirnama. Thereafter 52 goats were pro--duced before him by the first informant and the same were secured in presence of the same Mashirs. These goats were then handed over to the complainant, under superdaginama. The Police party was then led by the complainant to a place near Bado Jabal and .He showed the place where the thieves had allegedly left the stolen goats. At that place as well, the refuse of goats was found lying. Memo of this effect was prepared in presence of same Mashirs. The I. O. Then returned back to the village of the complainant. There he recorded, the statements of P.Ws. Attur and Mohammad Bux under section 161, Cr. P. C. On 28th August 1979 he examined Abdul Majid under section 161, Cr. P.C. While on 29th of the same month, he recorded statement of Mohammad Saleh. Appellant, Ghulam Nabi was then arrested by him on 7th September, 1979 from the Jhang of village Chakar Khan. Appellant Mooso was, however, found absconding and so necessary intimation was conveyed to various police stations. The appellant Mooso was initially arrested by S. H. O. Atta Mohammad of Police Station T, R. Khan in connection with some other matter and so, on receiving information from T. R.
Khan Police Station, he was also arrested in this case as well. After completing necessary investigation these appellants were sent up to face their trial.
4. At the trial, prosecution examined complainant Rajib Exh. 5 and he produced F. I. R. Exh. P. W. 7, Attur Exh. 8, P. W. Abdul Majid Exh. 9, as witnesses of the occurrence, while Baz Mohammad Exh. 10 was examined as Mashir of wardat, securing of goats, arrest etc. And he produced memo. Exhs. 11 to 12. S. H. O. Bhan Atta Mohammad was also examined Exh. 17 to prove the arrest of Mooso as Exh. .18.
5. After evidence as aforesaid the appellants were examined under section 342, Cr. P. C. But they denied charges against them.
6. Appellant Ghulam Nabi in his further statement pleaded as under: "Complainant side used to prevent me from visiting Mooso. I did not care and continued meeting with Mooso on account of business terms. Hence they were annoyed and implicated me in this case. Pray for justice. On the day of the alleged incident I was in village Tehni, where Haji Rasul Bux, Jumo, Shah Mohammad and others had seen me. The cattle in question were restored by Rahim and Gul Beg Moohani. On the 1 September, 19791 had returned from Hyderabad, where I had gone for treatment of my illness. On that day Ghulam Kadir took me from Sehwan and produced me before Police."
Similarly appellant Mooso stated as under,:- "I am a cattle dealer. I had come to bari from where I was picked up by the Police. Goats were recovered from other people and- had been foisted, subsequently on me. Baz Mohammad Zamindar of my village used to bring strangers on his scooter in front of my house. I used tost prevent him from doing so. Thus he was annoyed and had threatened to see me. My inherited land is situated in Daud Khan Gabool village. Rajib complainant had been claiming this land and had been asking ate to leave the land, after I was arrested in this case. Rajib had occupied my lands."
The appellants had also in their defence examined D. W. Chakar Exh. 25, Raheem Exh. 26 and Shah Mohammad Exh. 27.
7. The learned Sessions Judge, Dadu after having considered all the evidence on record and after having heard the learned advocates of the appellants, vide his impugned judgment dated `4th December, 1980, convicted and sentenced the above appellants, as mentioned hereinabove.
Appellants being aggrieved by the said impugned judgment first preferred Jail Appeal which was given Nos. 153 and 154 of 1981 and earlier appellant Ghulam Nabi also filed separate appeal, through his Advocate, which was numbered as Cr. Appeal No. 331/80, on the grounds mentioned in memo of appeals.
8. The above three appeals came up for hearing on 10th November, 1981, when I heard the appellant Mooso, who was present in custody and his submissions were noted by me in order sheet dated 10th November, 1981, and for want of time, all the above three appeals were adojurned to a date in office for further hearing.
9. The learned counsel for the appellant Ghulam Nabi submitted before me, that there was delay of over 30 hours in lodging of F.I.R., for which no cogent explanation is given by the complainant.
Beside this he further submitted, that all the prosecution witnesses are inter-related and there is enmity with P. W. 4 Baz Mohammad the Mashir and as such the evidence of these witnesses required independent corroboration, which was not at all available in the present case and as such the learned counsel for appellant Ghulam Nabi relied upon case reported in PLD 1981, Karachi P-1, in support of his contention. The learned counsel further submitted, that only two independent witnesses of the version of complainant as given in F. I. R., namely, P. Ws. Mohammad Bux and Mohammad Saleh were given up by D. P. P., without any reasons, vide his statement dated 1st April; 1980, which is at page, 35 of paper book. Learned counsel further submitted, that alleged identi-- fication of the appellants, as mentioned by P. Ws. Was not possible. He further submitted, that the learned trial Court has misread and misappre--ciated the evidence of defence witnesses and has wrongly rejected their evidence, without cogent reasons. In view of all this, learned counsel submitted, that prosecution has failed to establish its case beyond reason--able doubt against both the appellants.
10. Learned counsel appearing for the State stated, that he does hot support the impugned judgment of the learned trial Court, in view of the law laid down by case reported in PLD 1981 Kar. 1, specially as D.P.P. Gave up two independent witnesses without any reasons and on account of delay in lodging of F. I. R.
11. I have taken into consideration the above submissions made bar the learned counsels for the parties as well as submissions made by appel--lant Mooso on 10th September,1981, before me, the note of which, I have recorded in diary-sheet dated 10th November, 1981, 1 have also gone through the statements of prosecution witnesses as well as defence witnesses and the impugned judgment of the learned trial Court.
12. Admittedly there was delay in lodging of F.I.R. Exh. 18 of over 30 hours and the explanation given by the complainant for the said delay, in my opinion, is not plausible at all. There was nothing to stop the complainant from lodging F I R, before proceeding in search of his goats, with his companions, on torchlight has alleged by him. 1t may further be noted, that complaninant has failed to give exact time of his return from search on 26th August, 1979, which perhaps could have explained at least the time for lodging' of F I R so late in the evening of 26th Auglist, 1979. Normally a complainant who has lost all his asset like P. W. 1, Rajib, would rush to Police Station first, for lodging report, before going out on search specially when it was night time and search on the light of torch was difficult, if not impossible.
13. The second contention of the learned counsel for the appellant that prosecution has failed to examine independent witnesses Mohammad Bux and Mohammad Saleh mentioned in F. I. R.
Without any reasons and as such evidence of P. Ws. Rajib. Attur, Abdul Majid and Baz Mohammed, who are inter-related, should not be relied upon, without independent' corroboration, on account of alleged enmity suggested by the appellants against P. W. Baz Mohammed, also has great force, in view of law laid down by case reported in PLD 1981 Kar. 1, which beside being binding on me, as D.B.
Judgment of this Court, I am in respectful agreement with the said judgment for the reasons given in the said judgment it may be noted that admittedly P. W. 2 Attur is the brother of complainant P.
W. 1 Rajib, P. W. 3 Abdul Majid claims the ownership of the goats in question and P.W. 4 Baz Mohammad is alleged to have enmity with appel--lant Mooso, who is admittedly neighbour of the said appellant, according to his own statement. Out of prosecution witnesses, three P. Ws. 1, 2 and alone are alleged to have seen appellants with goats, from distance of 25 paces or so, near Bado Jabal, all these three P.Ws. Are inter-related and/or interested witnesses. Beside them, according to F I R, there were indepen--dent witnesses on the same point, namely P. W. Mohammad Bux and Mohammad Saleh, but D. P. P. Gave them up without assigning any reasons. In view of this, in my opinion, prosecution story as given by P. Ws. 1, 2 & 3 has become doubtful, otherwise why did prosecution give up two independent eye-witnesses who had seen present appellants near goats and the facts of their running away from scene. In this connection statements of D.Ws. Chakar, Raheem and Shah Mohammad assume important consideration. The learned trial Court has disbelieved these witnesses on account of some contradiction in their statements. But at any rate, appellants, by their evidence have brought on record different version of recovering of goats and this creates some doubts on the evidence of P. Ws. 1, 2 and 3 who are also otherwise inter-related and interested witnesses. Further since prosecution gave up two independent witnesses namely Mohammad Bux and Mohammad Saleh, who were named in F.I.R. Without any reasons, more doubt is created in respect of the version, a given by P. Ws. 1, 2 and 3, keeping in view all these facts, I am of the opinion, that prosecution has failed to establish its case against the appellants, beyond reasonable doubts.
14. Therefore, I allow the above appeals filed by both the appellant and set aside their convictions and sentences awarded to them, vide impugned judgment dated 9th December 1980 and acquit them of all charges, by giving them benefit of doubt and discharge the bail bonds of appellant Ghulam Nabi, who is on bail and direct, that appellant Moo so, be released forthwith, if he is not required in any other case. All the above three appeals stand disposed off in terms of the above order.