1. This is an appeal against the judgment of the Additional Sessions Judge, Jacobabad, convicting the appellants for an offence under section 395/397, P. P. C. And sentencing them to undergo R. I for 7 years and pay a fine of Rs. 500 or in default to undergo R. I. For 6 months, as well as convicting them for an offence under section 13(d), Arms Ordinance and sentencing them to undergo R. I. For one year and further convicting appellant Mangal for an offence under section 324 and sentencing him to undergo R., I. For one year and to pay a fine of Rs. 300 or in default to undergo R. I. For 3 months.
2. The incident took place at past midnight on 12-4-68 and the first report Exh. 5 was lodged at 8-30 a.m. At Karim Bux Police Station situated at a distance of about 22 miles and recorded by Shahnawaz Head Constable.
3. The complainant Haji Sadoro had a provision shop in his village and lie used to sleep outside the shop. Dad Muhammad is his brother, Chakar Khan is his cousin and Sardaro is related to him. The appellants lived in another village situated at a distance of about 2/3 miles. The parties were known to each other.
4. On the night of the incident the complainant was sleeping as usual when he woke up on hearing the sound of the opening of the door of the shop and found three persons standing over him whom he identified in the moon light and they. Were the present to appellants and another person by name Ghulam Mustafa. Nazroo appellant had a rifle while Bangui and Ghulam Mustafa had guns.
5. The complainant at once pounced upon appellant Nazroo and attempted to snatch the rifle from him but in the mean the he was given blows by the butt of the guns by the other to, namely, Bangui appellant and Ghulam Mustafa. The complainant raised an alarm which attracted Chakar Khan, Sardaro, Tajo and Muhammad whereupon appellant Bangul fired at them resulting in the injuries to Sardaro. Soon after four other dacoits who had collected various articles from the shop in three bundles came out and throwing the bundles there took to heels along with appellants and Ghulam Mustafa. However, the complainant succeeded in snatching the rifle from Nazroo appellant. The dacoits left behind their three turbans and one joota. Arz Muhammad who arrived at the scene was also informed and the names were disclosed to him. Sardaro injured was sent in bullock cart to Thul hospital while the complainant went to Karimbux Police Station and lodged the first report.
6. Shahnawaz Head Constable after recording the first report went to Thul and found Sardaro having injuries. Mashirnama was prepared and statement was recorded. He then proceeded to the scene of offence. The rifle and the other articles left by x the dacoits were produced. There was blood on the ground. Mashirnama was prepared and inquiries were made from Chakar. Statements of Muhammad and Dadoo were recorded on 13th. The appellants were arrested on 14th and their houses were searched but nothing incriminating was found. Then the papers were handed over to Iran Khan S. H. O. Who challaned the appellants.
7. At the trial the prosecution produced four eye-witnesses Haji Sadoro complainant, Dad Muhammad, Sardaro injured and Chakar Khan. Out of- them the former to claimed to have identified the, appellants while the latter to stated that they could identify the culprits. The learned Sessions Judge accepted the evidence of the former to witnesses and found the appellants guilty of the offence with which they were charged.
8. There can be no manner of doubt that dacoity was committed and apart from the evidence of the above four witnesses it is borne out by the presence of injuries on Sardaro and there was blood at the scene of offence. According to the Medical evidence Sardaro had four lacerated punctured wounds caused by a fire-arm.
9. The main question in this case is whether the appellants had committed the offence. This mainly depends upon the identification of to witnesses Haji Saddro and Dad Muhammad. Although their evidence was accepted by the learned Sessions Judge but I am unable to find that their evidence is such on which implicit reliance can be placed. At any rate the case is not free from doubt and the benefit must be allowed to the appellants. Haji Sadoro had stated that when he had' captured the appellant Nazroo the other to gave blows to him with the butts of the gun but there is absolutely no evidence with regard to the presence of injuries on his person. The injuries were not noted by the police and this is supported by the fact that no such mashirnama was prepared by the police. He was also not sent to the hospital. So his claim regarding the injuries finds no support and consequently it must reflect upon his presence outside the shop or having grappled with one of the dacoits. It is also inconceivable that when he finds three persons armed with fire--arms standing over him he would muster up courage to face them and make any attempt to grapple with any of them. It cannot be said that his attempt would not be resisted by the persons who had come fully armed in order to commit dacoity in his shop. Yet there are also admissions made by him in the committal proceedings which render his evidence unworthy of evidence He stated that the face of the appellants were muffed and he entertained a suspicion that the appellants were the persons who along with the third one had stood over him. He also made an attempt to deny the relationship with Gulab against whom the appellants had alleged enmity, although the relationship was admitted by another witness Chakar.
10. The learned Additional Sessions Judge while accepting the evidence of the complainant, observed with regard to thedamaging statements made by him in the committal pro--ceedings that the appellants succeeded in obtaining gratuitous admissions from him by exercising pressure which was very much ', obvious from his evidence who in spite of his best to favour the appellants had not been able to conceal the truth that the appellants were identified on that night by him to be the member of the party which committed the dacoity. At another place he observed that the complainant Haji Sadoro had impressed him to 'be God's good man who was very much afraid of the oath which he had taken and was very ac1xious to speak out the truth though he was under great pressure to distort and torpedo the prosecution case. I, am unable to agree with the learned Additional Sessions Judge about his impression, that the complainant was afraid of the oath. By making the very admissions which according to the learned Additional Sessions Judge were not true, it is plain enough that the complainant had no sanctity 'for oath, and he could be prepared to make false statements to whatever extent it could be possible. When a witness is found to have perjured in respect of certain statement it cannot be said with certainty that the other statements made a by him are true. As already pointed out his evidence lacks support and the circumstances operate against what he has deposed. It was claimed that Arz Muhammad who arrived at the spot was immediately informed and the names of the appellants were disclosed to him but it is noteworthy that Arz Muhammad was not examined. No reason has been assigned why he was with--held. The impression of the learned Additional Sessions Judge that the complainant was under great pressure is not borne out by the record. No question was put to any of the witnesses that the appellants had brought to bear any influence or pressure upon them or coerced them to give favourable evidence.
11. Then is the evidence of Dad Muhammad. He is the brother of Haji Sadoro. His evidence is no better than his brother. He came along with the other to persons who had not identified and it is not understood how this witness succeeded in identifying the appellants. Moreover as the evidence reveals the complainant and the appellant were grappling with each other when the witnesses had arrived and soon after all the culprits had run away. Consequently Dad Muhammad could not be in a position to clearly see the face of the culprit who was grappling with his brother. This identification would be rendered all the more impossible in view of the admissions made by Haji Sadoro in the committal proceedings which have already been referred to.
12. In the circumstances the conviction and sentence passed against the appellants are not sustainable. I, therefore, allow the appeal and set aside the conviction and sentence passed against the appellants and acquit them. They should be set at liberty forthwith.