' Karim Bakhsh and his two sons, namely, Shahnawaz and Faizullah were alongwith one Muhammad Ibrahim charged for the offences under section 379/411, P.P.C. Before Mr. Tmtiaz Ahmed Sahi the then learned Magistrate First Class Bhakkar, District Mianwali in respect of incident of theft which took place in the year 1966. The charge which all the four accused repudiated as false was on the basis of evidence examined at the trial upheld by learned Magistrate by means of judgment, dated 31-12-1966 and the petitioners were sentenced to one year rigorous imprisonment each. Announcement of judgment in respect of Muhammad Ibrahim was deferred by learned Magistrate as he had absented himself. The fate of Muhammad Ibrahim is not known. The three convicts went in appeal before learned Sessions Judge, Mianwali which he dismissed by means of judgment dated 1-4-1967 maintaining their conviction as well as the sentence. Dissatisfied with concurrent decisions of two Courts below holding them guilty, the convicts have come up in revision under section 439, Cr.P.C.
2. 1 have seen the record. Case of theft of a mare was registered on 6-21966 on the statement (P.A.) of Dost Muhammad complainant (P.W.1) made before Syed Abbas Ali Shah Sub-Inspector (P.W.8) alleging therein that his mare valued Rs,450 was stolen away on the night intervening 4th and 5th February, 1966. The mare was on 17-2-1966 recovered during night patrol from the possession of Ibrahim and Karim Bakhsh (petitioner No,1) by Syed Jaffar Hussain Shah Sub-Inspector (P.W.7) by means of memo. Exh.P.B. Eight witnesses were called on the side of prosecution. Dost Muhammad P.W. Deposed to the incident of theft of mare and also claimed the animal. Wali Muhammad P.W.5 confirmed the assertion of Dost Muhammad that the mare in question belonged to the latter.
Sultan and Ghulam Hussain P.Ws. 2/4 had stated that they had seen Shahnawaz and Faizullah petitioners 2/3 riding the mare and Sultan had informed Dost Muhammad after 2/3 days. Allah Bakhsh and Sher Muhammad P.Ws. 5/6 have corroborated the statement of Syed Jaffar Hussain Sub-Inspector (P.W.7) that Karim Bakhsh petitioner No,1 and Ibrahim were intercepted during patrol on the night intervening 16/17th February, 1966, while riding the mare. The mare was taken into possession by means of memo. Exh.P.B. A separate case was also registered against Ibrahim in respect of possession of unlicensed pistol etc. Dost Muhammad and Sultan (P.Ws.1/2) who had not been earlier cross-examined by the accused were on their request resummoned for further cross- examination under section 257, Cr.P.C.
' All the four accused denied the charge in their statements under section 342, Cr.P.C. Pleading false implication in the case at the instance of Abdullah Khan Shahani. No evidence was led in defence except that Ibrahim tendered in evidence copy of judgment (D.A.) of his acquittal in an earlier case under section 379/411, P.P.C. Decided by Mr. Hidayatullah Magistrate 1st Class, Bhakkar on 27th of January, 1966.
3. Learned Magistrate accepted the evidence of witnesses on the side of prosecution with the view that they were independent witnesses having no motive to make false statements against the accused and there was no reason to disbelieve them. Learned Sessions Judge also held the same view (Para 6 of the judgment). The contentions raised on the side of the accused that Shahnawaz and Faizullah petitioners (2/3) who were allegedly seen riding the mare a fortnight or so before the same was recovered from the possession of Karim Bakhsh petitioner (1) and Ibrahim could not be tried together with the remaining two accused and these two accused should not have been charged under section 411, P.P.C. Meaning thereby that charge of theft under section 379, P.P.C.
Should have been framed against them were turned down by learned Sessions Judge with the view that joint trial of all the four accused in the case was permissible under section 239, Cr.P.C.
(inadvertently mentioned as 237 in para. 8 of the judgment) and error if any in the charge framed against the accused will not justify reversal of the judgment of learned Magistrate unless it was shown that the error had occasioned a failure of justice which was not the case here.
4. Learned counsel for the petitioners says that he was not advised to press the legal contentions raised before learned Sessions Judge. He has urged that evidence in support of the allegation against Shahnawaz and Fain (petitioners 2/3) which was grossly misappreciated did not justify a finding of guilty and that the sentence already undergone by the remaining petitioner (Karim Bakhsh) should amply meet the demands of justice. Both these contentions have a persuasion in them. Sultan and Ghulam Hussain (P.Ws.2/4) who are respectively Chowkidar and Lumbardar had said that they had set out for the recovery of land revenue and had met Shahnawaz and Faiza during the way riding away the mare. They were clearly convenient and chance witnesses. A chance witness is a witness who should not normally be where and when he professes to have been. It is not difficult to procure such witnesses. Evidence of Sultan and Allah Bakhsh could not be relied on with any amount of confidence. This aspect of evidence of these two witnesses had escaped the notice of both Courts below resulting in injustice. Findings of the Courts below holding Shahnawaz and Faiza petitioners guilty on the basis of this evidence called for interference in the exercise of revisional jurisdiction or failure to do so will amount to endorsement of an unfair decision. The charge against these two accused is not established beyond all shadows of reasonable doubt. They are given benefit of doubt and acquitted of the charge. They stand discharged of their bail bonds.
5. I find no valid reason to disagree with the two Courts below that recovery of mare found in possession of Karim Bakhsh petitioner (1) and Ibrahim is well supported by the statements of Allah Bakhsh and Sher Muhammad (P.Ws.5/6). Their evidence is free from discrepancies and there is also nothing to show, muchless establish, that they had any reason to perjure themselves against the said two accused. Their conviction should stand intact. However, it will be unfair to push Karim Baksh petitioner (1) back to jail to serve out the sentence in respect of the crime committed by him in the year 1966. He is a first offender and has already remained in jail for a period of 3-1/2 months to serve the sentence. Inordinate delay in the disposal of the case is a factor in favour of the accused. There in no dearth of authorities on the point that in cases of inordinate delay in the disposal for revisions; sentences already undergone should be treated as sufficient. Reference may, however, be made to a couple of cases Rabia v. State 1968 P Cr. L J 350 and Muhammad Salem and another v. State 1969 P Cr. L J 418. In the first mentioned case the accused was on a charge of theft sentenced to rigorous imprisonment for 18 months and had remained in jail for a period of about three months. The sentence was reduced to the period already undergone as the provisional application was disposed of after four years. In the next case the accused was sentenced for the offence under Opium Act and the sentence of six months was reduced to 14 days, the period which they had already spent in jail for the reason that the petition in revision was heard and decided after more than five years. The sentence of Karim Bakhsh petitioner (1) is, therefore, reduced to the period already undergone. Petition disposed of accordingly.