The four applicants in this case were tried for offences under sections 379 and 447, P. P. C. by the Second Class Magistrate, Gujrat for having cut certain trees from the land of the complainant and thereafter misappropriating them. As a result of their convic tion each one of the applicants was sentenced to three months' rigorous imprisonment under section 379, P. P. C. and one month's rigorous imprisonment under section 447, P. P. C. and to pay a fine of Rs. 100 and in default to further rigorous imprisonment for one month. Their appeal against these convictions and sentences was dismissed by the Additional District Magistrate, Gujrat. By this revision application they have challenged the impugned judgment.
2. In support of its case the prosecution examined a number of witnesses, but according to the learned counsel for the parties the relevant evidence in the case is that of complainant Nadir Khan, P. W. Hadi Hussain Girdawar and P. W. 6 Muhammad Aslam Patwari. The reason for which the evidence of these witnesses appears to be decisive is that according to the defence version as suggested to the P. Ws. in cross-examination, the applicants claimed to be the owners of the trees which they had allegedly cut from the land of the complainant. P. W. Nadir Khan claimed that the trees were cut from Khasra Nos. 985 and 986 which was the property of the complainant. But in cross-examination he admitted that to the North of these Khasra Numbers was situated the land of the applicant. P. W. Hadi Hussain Girdawar supported the case of the prosecution. But in cross- examination he stated that the trees which were cut were found by him to have been standing on the North banna of the land comprised in Khasra No. 986. Muhammad Aslam Patwari also admitted that upon the inspection of the site he found the marks of three cut trees on that banna. This being the entire evidence as to the location of the trees which were allegedly cut by the applicants the question arises if they could be said to have been properly convicted.
3. From the evidence of the P. Ws. it does not transpire that the prosecution succeeded in showing that the cut trees were situated in Khasra Nos, 985 and 986 which the complainant claims to be his property. In fact according to the report of Hadi Hussain Girdawar (Exh. P. 1) the trees in question were situated on the Northern banna of land comprised in Khasra No. 986 which also does not prove the case of the prosecution. Exh. P. 2 which is the sketch of vardat is equally of no assistance at it does not indicate the location of the trees. In this view the prosecution appears to have failed to prove its case against the applicants beyond reasonable doubt. Not only this but the defence version finds support from the admissions of P. Ws. Nadir Khan, Hadi Hussain Girdawar and Muhammad Aslam Patwari to which reference has already been made. The fact that according to the complainant Nadir Khan the land of the applicants is situated towards the North of the land of the complainant is a circumstance which supports the defence version that the trees were actually the property of the applicants and they were entited to cut them.
4. The learned counsel for the applicants referred to a judgment of the Sind Judicial Commissioner's Court in the case of Bhurasing and others v. Emperor (1) that upon the facts of this case the applicants cannot be said to have committed any offence. The judgment in question supports this contention as would be seen from the following observations :-- "The removal of property in the assertion of a bona fide claim of right though unfounded in law and fact does not constitute theft although a mere colourable pretence to obtain or keep possession of property would not avail as a defence. The question whether the claim is bona fide or not must be determined upon all the circumstances of the case and a Court ought not to convict unless it holds that the claim is a mere pretence."
5. As already pointed out the defence version was that the trees were the property of the petitioners and this version finds support from the evidence of the P. Ws. Under the circumstances the applicants appear to have cut the trees in question under the bona fide claim of their right and although their said claim may be unfounded in law they would not be liable for any criminal offence in view of the observations in the above judgment.
6. In view of this discussion this revision application is allowed, the conviction and sentences of the applicants are set aside and they are acquitted. The applicants are said to be on bail and their bail bonds would stand discharged. . [18]