1. ' Appellants abovenamed, being aggrieved by judgments, dated 27th May, 1981 of the learned Ilnd Additional Sessions Judge, Dadu, in Criminal Appeal No,45/78, by which the said appeal was dismissed and judgment, dated 22nd August, 1978 of the learned Civil Judge and F.C.M.,Khairpur N.
2. Shah was upheld, by which appellants were convicted under section 411, P.P.C. And sentenced to suffer R.I. For 6 months each, in Case No,98/76, have preferred the above petition, on the following facts and grounds:-- ' That according to prosecution one Ali Gohar lodged an F.I.R. At P.S. Rukkan at 10 a.m. On 10-1-1975, that on the night between 1-1-1975 and 2-1-1975 he woke up in the morning and found that one of his bullocks was missing, he informed his relatives and they formed a tracking party and followed two footprints of thieves, alongwith hoof marks of bullocks, and when they reached near village of Nizam Punjabi, P.W. Ismail told them that on the preceding night the Sita police in "Nakabandi" have secured a bullock, the tracking party went to P.P. Sita and there the complainant found his stolen bullock, he went and lodged F.I.R. At P.S. Rukkan. The other part of the prosecution story is, that on the above said night the S.H.O. Muhammad siddique alongwith police party went on night petrol and made a "Nakabandi" at Khamiso Mod Dadu canal and at about 2 a.m. Secured the alleged stolen bullock from the possession of the applicants and also secured one country-made pistol from applicant Roshan. The bullock was seized under section 550, Cr.P.C. And after usual investigation the applicants were challaned under section 380/411 P.P.C. And applicant Roshan separately was challaned under section 13-D Arms Act.
3. ' The learned Advocate for applicant in support of the above petition submitted as under:--
(a) That no identification of alleged stolen bullock was made before learned trial Court.
(b) That P.Ws. Are police official only and as such no reliance can be placed on their statements without independent corroboration.
(c) That fact of theft is not established by prosecution at all. In support of above submissions learned Advocate for applicants cases resorted in 1979 P Cr. L J 721 and P L 0 1979 Kar. 31 and submitted that prosecution has failed to establish its case beyond reasonable doubt.
4. ' The learned Advocate appearing for the State on the other hand submitted that he was supporting the impugned judgment on merits, but in view of the fact that applicants have been facing trial right from 1975, sentences awarded to them may be reduced to one already, udnergone, by them.
5. ' I have carefully considered the above submissions made by the learned Advocates before me and have gone through the R & P of the learned trial Court as well as through the impugned judgment and cases cited by the learned Advocates before me.
6. ' It is an admitted position, that the factum of the theft of the bullock in question was not proved by the prosecution. In addition to this the identification of the stolen bullock was not established beyond reasonable doubt, before the learned trial Court. Beside this the only Mashirs of the recovery are police officials, who had actually gone for Nakabandi, but did not take with them independent Mashirs, for which no explanation at all has been given by the 1.0. In view of this, it would be unsafe to rely on the prosecution evidence in respect of alleged recovery. In addition to this it may be noted, that the fact of the theft having not been established, the conviction of the applicants under section 411, P.P.C. In my opinion was not warranted by law.
7. ' Therefore, I allow the above petition and set aside conviction of the applicants and sentences awarded to them by both the impugned judgments and acquit them by giving them benefit of doubt and discharge the bail bonds executed by the applicants in respect of above petition.