1. GHULAM RASOOL K. SHAIKH, J.-The appellants were convicted by the learned Sessions Judge, Larkana for an offence under sections 395/397, P. P. C. And 13(d), West Pakistan Arms Ordinance, 1965, and sentenced to undergo R. I. For 7 years and 2 years respectively ordering the sentences to run concurrently.
2. The incident had taken place on 8th March 1969 at 9-30 p.m. In Village Jakhar and the first report was lodged by Nabibux on the same night at 11-45 p.m. At Warah Police Station situated at a distance of about 6 miles and it was recorded by Muhammad Yaqoob Head Constable. The investigation was conducted by various police officers.
3. On 8th March 1969, at about 7-30 a.m. Haji Nabibux was sitting along with Abdul Ghani and Allahbux in his shop and a lamp was burning when four persons armed with rifles entered the shop and out of them to were wearing turbans and they had muffled their faces while the other to were wearing caps and their faces were not muffled. It is further said that three other persons stood outside the shop. One of those four persons picked up .The transistor of Nabibux and left the shop.
4. Then they went to the shop of Muhammad Nawaz which was closed. The door was broken and the cloth was removed from there. Thereafter all these seven persons escaped. Muhammad Nawaz, Khamiso and others arrived and they were informed. Nabibux went to the Police Station and lodged the first report which was recorded by Muhammad Yousuf Head Constable, who then deputed Allahdino Head Constable to hold the investigation. He reached the scene of offence in the morning and secured the lamp from the shop of Nabibux, Muhammad Ibrahim and Manzur Ahmad acted as mashirs. Then the statements of Muhammad Nawaz, Abdul Ghani, Allahbux and Ibrahim were recorded. Thereafter Mr. Azmat S. H. O. Arrived and verified the investiga--tion. The S. H. O.
5. Along with Wazir Muhammad Inspector of Police tracked 'the outgoing prints which were lost near the tomb of Daud. So they returned and- tacked the incoming prints on the following days which led to Kumb village where the appellants were said to be residing. The appellants were not available in their houses. However, they were arrested on 12th. Their foot--print tests, shod as well as naked, were held in the presence of third class Magistrate Warah and Mithal tracker succeeded in picking up the shod print of Ghulam Mustafa and bare foot-print of Shafi Muhammad appellant.
6. Mashirnamas Exhs. 12 and 13 were prepared. The identification test of both the appellants was held through witnesses Nabibux, Abdul Ghani and Allahbux on the same day and ail the three succeeded in picking out the appellants. Mashirnama Exh. 14 was prepared. Appellant Ghulam Mustafa took the police and mashirs to his own house and produced a piece of cloth measuring 20 yards from the heap of Palal. Mashirnama Exh. 22 was prepared. The identification test of the cloth was held on 20th April 1969, and it was correctly picked out by Muhammad Nawaz. Mashirnama Exh. 15 was prepared. Thereafter the appellants were challaned. They pro--claimed their innocence and pleaded that they had been implicated at the instance of the Police. Appellant Ghulam Mustafa denied having produced the piece of cloth and disclosed it.
7. At the trial the prosecution examined Haji Nabibux, Abdul Ghani, Allahbux, Mr. Muhammad Bux, Third Class Magistrate, Muhammad Nawaz, Ibrahim mashir, Mithal Tracker, Dingano mashir, Muhammad Yusuf Head Constable, Allahdino Head Constable, Mr. Azmat S. H. O. And Mr. Wazir Muhammad Inspector of Police. On the assessment of the evidence the learned Sessions Judge found the appellants guilty of the offence with which they had been charged.
8. There can be no manner of doubt that the dacoity was committed. According to the prosecution evidence 7 persons armed with rifles had gone to the shop of Nabibux and after removing the transistor from there they broke open, the shop of Muhammad Nawaz and removed cloth from there. Thereafter they escaped. Rifle shots were also fired in the air to terrorise the people.
9. The case against the appellants rests upon the identification, foot-prints and production of a piece of cloth by Ghulam Mustafa appellant. We have gone through the entire evidence with the assistance of the learned counsel for the appellants and the State and we are of the view that the evidence suffers from serious infirmities and it is not possible to place reliance in order to hold that the appellants had committed the dacoity.
10. The first piece of evidence is of three persons Nabibux, Abdul Ghani and Allahbux who were said to be present in the shop where a lamp was burning and the transistor of Nabibux was removed.
11. According to them four persons armed with rifles entered the shop and to of them were with muffled faces while the other to were wearing caps and they picked up the transistor and left. None of the culprits was known to the witnesses. Con--sequently after the appellants were arrested their identification test was held on 12th March 1969 and they were picked out by the witnesses. However, it is doubtful whether these witnesses had sufficient opportunity and the to clearly see the faces of the culprits and retain the impressions gathered by them at the the of the incident till the identification test, which was held after four days. The culprits did not wait in the shop for more than a few minutes as is indicated by the fact that as soon as they entered the shop they threatened the witnesses, picked up the transistor and left. It is further in the evidence that the culprits had immediately ordered the witnesses to lower down their faces. In view of this the witnesses could hardly have momentary glimpse of the faces of the to culprits whose faces were said to be un-muffled. This momentary glimpse, in our opinion, does not provide the proof of certainty with regard to the identification nor we can place any reliance upon the identification test which was subsequently held. Moreover, there are other contradictory statements made in the evidence. The prosecution attempted to show that one of the persons whose face was not muffled and he was appellant Shafi Muhammad picked up the transister but Abdul Ghani made a categorical statement that one of those who had muffled their faces picked up the transistor and took it away. It was further in the evidence that the dacoits were wearing tyre rubber sole shoes. If this statement is accepted then appellant Shafi Muhammad could never have entered the shop as according to the Police investigation there was one set of bare foot-prints.
12. The next piece of evidence is of foot-prints. So far Ghulam Mustafa is concerned the prints were shod and, therefore, it has no evidentiary value and must be excluded from consideration. As regards Shafi Muhammad it was claimed that his naked foot-prints were picked out in the test and according to the tracker it tallied with the set of bare-footed prints at the scene of offence. In the first place this evidence by itself is not sufficient to hold that he participated in the crime in view of the fact that the evidence of the three eye-witnesses has been rejected. Secondly according to the complainant all the dacoits were wearing rubber sole shoes and it is not known how bare-foot prints of one person appeared at the scene of crime.
13. The last piece of evidence against Ghulam Mustafa is the production of a piece of cloth from the heap of palal but it is not proved that this was stolen from the shop of Muhammad Nawaz as according to the witnesses he had sold 2 or 3 yards from the whole piece measuring 40 yards and, therefore there remained 37 or 38 yards but the piece of cloth which was recovered is only 20 yards. It has been admitted by Muhammad Nawaz that there was no special mark on it and he claimed the piece as it was short of full length. This does not provide necessary proof to establish the ownership of Mohammad Nawaz to the' piece of cloth. Consequently it cannot be held that it was stolen. Indeed the appellant has not claimed the cloth but the onus of proof rests entirely upon the prosecution and that onus cannot be held to have been discharged simply because the appellant had failed to establish his own case set up at the trial.
14. In the result we are of the opinion that the case is not free from doubt and the appellants are entitled to receive its benefit. We, therefore, allow the appeal and set aside the conviction and sentence passed against the appellants and acquit them. They are in custody and they should be set at liberty forthwith.