1. ' Applicants abovenamed, being aggrieved by judgment dated 5th August, 1981 of learned 1st Additional, Sessions Judge, Dadu, by which applicants both Appeals Nos.13 and 1 of 1980, were dismissed and judgment dated 29th May, 1980 of the learned Civil Judge and F.C.M., Dadu, was upheld, by which applicants have been convicted under section 411 P.P.C. And sentenced to suffer R.I. For one year and to pay fine of Rs,500 each or in default to suffer further R.I. For one month, have preferred the above petition, on the following facts and grounds: ' The brief facts leading to these appeals are that the S.H.O. Muhammad Siddik of P.S. Rukkan, alongwith his subordinate staff A.S.I. Hussain Bux, A.S.I. Wali Muhammad P.C. Murad Ali, P.C. Manzoor Ali, P.C. Tayab Ali, P.C. Ghulam Nabi and F.C. Punhoon Khan, on 3rd January, 1975 at 9.00 p.m. While entry No,15 set out for patrolling and Nakabandi. The police party, while patrolling when reached Manns Mori held Nakabandi by forming two parties. During Nakabandi on 4th January, 1975 at about 3 a.m. The police party found that two persons with two bullocks came on Mori from western side. The police party challenged them identified one of them to be the applicant Naboo and caught hold of them. The other person, on enquiry, disclosed his name to be the applicant Ibrahim.
2. The S.H.O. Muhammad Siddik searched their person and secured one pistol from the fold of loin- cloth and two live cartridges from right side pocket of the shirt of the applicant Naboo. He also secured one Lathi from the applicant Ibrahim. That the applicants could not gave him satisfactory account of bullocks, he, therefore, secured both the bullocks under section 550, Cr.P.C. And prepared such Mashirnama Exh.11-A in presence of Mashirs A.S.I. Hussain Bux and Wali Muhammad.
3. ' Then he brought the applicants and the property at P.S. Rukkan, where, he, on behalf of the Statement, lodged F.I.R. Under section 13-D, Arms Ordinance against the applicant Naboo. He recorded 161, Cr.P.C. Statements of the abovenamed police personnels of his party. He sent the bullocks to the Rukkan cattle pound.
4. ' On 4th January, 1975 at 9.30 a.m the complainant Muhammad Yousif came at P.S. Rukkan and lodged his F.I.R., in which he stated in brief that he used to run cloth shop. That he owned buffaloes, cows and a pair of bullocks, which he tethered in the courtyard of his house. That his house is surrounded by a mud wall with entrance on eastern side. That on the preceding night, as usual, he tethered his cattle with pegs and went to shop. On 4th January, 1975 in the early morning he woke up and found his pair of bullocks missing. He marked tw6 sets of indistinct naked footprints on the Vardat. He informed his neighbourers Soomer, Haji Jan Muhammad, Shaman and others and showed them the Vardat. All of them tracked the footprints, which them towards West and ultimately missed near Piyaro Goath Railway Station at Railway crossing. Then he was going to Railway Station Piyaro Goath and on the way the P.W. Raza Muhammad met him and told him that he had seen the applicants Naboo and Ibrahim And two bullocks with Rukkan Police and the police, on enquiry, had told him that they had apprehended the applicants Naboo and Ibrahim with two bullocks during Nakabandi. On receiving such information he, alongwith the P.Ws. Soomer, Haji Jan Muhammad and Shaman, came to cattle pound at Rukkan, where he saw and identified his two bullocks in the cattle pound. Then he came to P.S. Rukkan, where he lodged his F.I.R. The S.H.O.
5. Muhammad Siddik of P.S. Rukkan recorded his F.I.R Exh.5-A handed over the case papers to the A.S.I.
6. Hussain Bux for further investigation. The A.S.I. Hussain Bux, after receiving the case papers for investigation, visiting the Vardat in presence of Mashirs Buxial and CuIlan and prepared such Mashirnama of vardat Exh.8-A. He also recorded 161, Cr.P.C. Statement of the P.Ws. Muhammd Soomer, Ghamn and Haji Jan Muhammad on 13th January, 1975 he recorded 161, Cr.P.C. Statement of the P.W. Raza Muhammad. Thereafter he handed over the case papers to the S.H.O. Muhammad Siddik, who on 18th January, 1975 challaned the applicants in the Court of Civil Judge and F.C.M., Dadu.
7. ' The learned Civil Judge and F.C.M., Dadu framed the charge against the applicants vide Exh.2 and recorded their plea vide Exhs.3 and 4, respectively, to which they pleaded not guilty and claimed to be tried. The prosecution have examined the complainant Muhammad Yousif Exh. 5 and the P.Ws.
8. Jan Muhammad Exh.6, Buxial Exh.8, Raza Muhammad Exh.9, S.H.O. Muhammad Siddik Exh.11 and the A.S.I. Hussain Bux Exh.12, the P.5.1, has given up the P.S. Soomer vide his statement Exh.7 and has closed the prosecution side vide his statement Exh.13. The statement of applicants Naboo and Ibrahim have been recorded at Exhs. 14 and 15, respectively in which they have denied all the allegations. The applicant Naboo in his statement Exh.14 has claimed the bullocks to be his own and has alleged that the A.S.I. Hussain Bux is friendly to Akber Khan Bughio, who is inimical to him and as such has been falsely implicated by the A.S.I. Both the applicants have led defence. The applicant Naboo has examined the D.Ws. Muhammad Saffar Exh.16, Ghulam Hussain Exh.17 and Laiq Exh.18 and his defence side has been closed vide the statement Exh.19 of his Advocate. The applicant Ibrahim has examined the D.W. Allahdino Exh.20 only and his defence side has been closed vide statement Exh.21 of his Advocate.
9. ' The learned Magistrate after hearing the party Advocates and going through the evidence adduced by the parties has passed the impugned judgment and has convicted the applicants as shown above.
10. ' The applicants being aggrieved to and dissatisfied with the impugned ' d ment and conviction came with separate appeals, as described above, ' Both the appeals filed by appellants were dismissed vide iudgment dated 5th August, 1981 of learned 1st Additional Sessions Judge, Dadu and consequently appellants have filed the above petition, on the grounds mentioned in memo. Of petition.
11. ' The learned Advocate for the appellants in support of the above petition, submitted as under:-
(a) That factum of theft against the appellants was not proved at all. On the contrary applicants claimed the bullocks as their property and examined 3 D.Ws, in support of their this contention, that the learned trial Court as well as appellate Court without cogent reasons discarded their statements.
(b) That bullocks were alleged to have been secured in N,akabandi from possession of the appellants under section 550, Cr.P.C. And as such seizure ought to have been reported to Magistrate for disposal under section 553, Cr.P.C. But this procedure was not followed.
(c) Bullocks were not produced before the learned trial Court as case property and as such no orders in respect thereof could have been passed by both the learned lower Courts.
(d) That complainant was not put to identification of bullocks, and his mere word was accepted by learned lower Courts and statements of 3 D.Ws. Were discorded on this point, without cogent reasons.
(e) That provisions of section 103, Cr.P.C. For securing independent and respectable witnesses of locality was ignored and police officers were made Mashirs of the seizure and on this ground alone conviction of the appellants cannot legally be maintained.
(f) That complainant is shopkeeper and as such his mere word that bullocks belong to him, ought not to have been accepted, in preference to statements of 3 D.Ws.
(g) In the alternative, learned counsel for applicants submitted that applicant Naboo remained in custody from 4th January, 1975 upto 10th November, 1975 and applicant Ibrahim remained in custody from 4th january, 1975 till 30th August, 1975 and as such this period may be considered as sufficient punishment for applicants, in view of the facts and circumstances of the present case.
12. Learned counsel relied upon cases 1979 P Cr. L J 721 and PLD 1979 Kar. 31 ' None appeared on behalf of the State and since above Revision is pending from 1981, I decided to dispose of the same, with the assistance of the learned Advocate for applicants.
13. ' I have carefully considered the above submissions made by learned Advocate for applicants and have gone through R P of the !Earned trial Court and both impugned judgments of both the lower Courts and cases cited by the learned Advocate for applicants.
14. ' It is admitted position, that complainant was not put to identification test in respect of the bullocks in question nor he produced any documentary evidence or oral evidence to prove that bullocks belonged to him. Applicants on the other hand produced 3 D.Ws. Who have stated that applicants were arrested from their houses and bullocks in question were secured by police from the house of applicant Naboo and blonged to him. I find both the learned lower Courts have failed to properly appraised evidence brought on record about ownership of the bullocks and rejected the statements of 3 D.Ws, without cogent reasons. The learned trial Court as well as appellate Court failed to notice, that police party did not take independent Mashirs for said purpose and alleged recovery and arrest of applicants is based on the statements of police witnesses only. Applicants by examining 3 D.Ws have at least created doubt in prosecution case about ownership of bullocks and the manner in which and the place from which applicants were arrested and as such this benefit must go to applicants. Cases cited by learned Advocate for applicants 1979 PCr.L. J 72 and PLD 1979 Kar. 1 fully support the contention of the learned counsel. Keeping in view above conclusions of mine, in my opinion prosecution has failed to establish its case beyond reasonable doubt against the applicants.
15. ' Therefore I allow the above petition and set aside convictions of the applicants by both impugned judgments and acquit them by giving them benefit of doubt and discharge the bail bonds executed by applicants in above petition.