The o appellants in this case were originally charged under sections 3941 44, 325, >24, 323 and 397 of the Pakistan Penal Code and l3-I) of the Arms Act. They have, however, been convicted of offences punishable under sections 452, 325 and 324 read with section 34, F. P. C. And for these three offence have been sentenced to R. I. For two years and a fine of Rs. 500 or in default six months' R. I., three years' R. I. And a fine of Rs. 500 in default of R. I. For six months more and one year's R. I. Respectively. The sentences were directed to run concurrently.
2. The two, appellants are brothers mater se and the nephews of the first informant Saifal. It is the prosecution case that the father-in-law of this Saial one Dur Mohammad by name had acquired about 25 acres of land from Government and spent about its. 600 on its development. This land he had put in the possession of the appellants and had entered into an arrange--ment with them the details of which are not very clear and substantially .A would seem that the three were to be in partnership. However, the appellants refused not only to pay their share of the money spent on the development but also to give to Dur Mohammed his share in the yield oh the land. This resulted, quite naturally, in strained relations between the two inasmuch as Dur Mohammed was constantly making a demand for his share which the appellants were avoiding or refusing. This part of the case is admitted by the appellants but they add also that there were differences between themselves and the complainant party on account of matrimonial affairs; this allegation of theirs, has not been established nor even been detailed. The complainant Saifal lived along with his father-in-law in a village which was named for Dur Mohammad in his own house along with his wife P. W. Mst. Janai axed hit father-in-law Mst. Hurmat. On the night of occurrence which is the night between the 15th and 16th of August, 1968 for some reason which is not elaborated Dur Mohammed was not present. Some time before mid-nig at according to the prosecution witnesses the two appellants and two others who have not been identified inside the complainant---s house and of them appellant Qaisar had a gun, appellant Miro and one of the unidentified culprits hatchets, and the remaining unidentified culprit a lathi. The prosecution witnesses woke up since their dogs barked and saw that the four had entered the house. The appellants' party then inflicted a number of injuries on the three prosecution witnesses and removed a trunk which eras lying under the cot containing silver ornaments and clothes. The three then made good their escape; despite the cries of the prosecution party nobody came up to the scene presumably because the appellant wiser tired shots in the air. The complainant took no steps during the night to lodge a first information report with the police but in the morning at about sun--shine time he took with himself his wife and mother-in-law in a bullock cart to the police station at Kashmore which is about 12 miles away. Here a first information report was recorded at 6-30 p.m. And thereafter an investigation ensued with the result that the two appellants were sent up for trial and were convicted and sentenced as I have already stated.
3. Now there was in this case no evidence against the appellants excepting the oral testimony of the three prosecution witnesses. It was argued before me that these witnesses were inimical and deeply interested on count of the dispute with Dur Mohammed in falsely implicating the appellants and that, therefore, I ought not to accept their evidence without corroboration, which of course does not exist. On the other hand it was pointed out to me that the witnesses were natural witnesses and it was very difficult to believe, however hostile they were, that they would let the real culprits to go and substitute for them innocent persons: it is possible in such circumstances, it was argued, that the prosecution party might take advantage of an incident of the present kind to exaggerate the case and to implicate their own enemies but that it was unthinkable that they would allow the real culprits to escape. That the witness were natural witnesses can hardly be doubted. Indeed one could go further and say that the fact that each one of them was injured sustaining both incised injuries and others their presence was almost conclusively established. The nature of the injuries and their number is such that it is quite compatible with two persons injuring them. In these circumstances. I might well have been persuaded to accept their testimony even without corroboration. But the argument overlooks certain important features. In the first place merely because only the two appellants are named it does not by any means follow that they have allowed the real culprits to escape and substituted in their place persons whom they wished to implicate. On their own case there were as many as four culprits and it is quite likely that they did not identify the culprits and therefore truthfully claimed that they did not recognize them and added persons whom they wished to implicate. It is true that the night was moon-lit and it would not be difficult to identify persons who are nearly related to theta by moon-light. The fallacy in the argument, however, is the assumption that the appellants were necessarily there and that the exaggeration is in regard to the unidentified culprits. The converse is really the case; it is quite possible, even likely, that the exaggeration consists of adding the names of the culprits. The argument that the injury are compatible with the presence of two culprits is really an argument against the prosecution inasmuch as, scope of exaggerating the number to four is clearly inferable from such a comparison.
There are, however, other features of this case which are even more unsatisfactory To start with the P. I. R. Was not lodged until 6-30 p.m. The next day. The explanation that the complainant, the only male person to the house could hardly be expected to take two injured women with himself at the dead of the night may be accepted. It might be accepted therefore that he could not undertake the journey until sunrise next morning. Even so he had to travel a distance of 12 miles by bullock cart and it might be expected that he would take about four hours for his journey. With the most liberal allowance therefore he should be at the Kashmore Police Station at 10-30 a.m. Or 11-00 a.m.
If to that be added some more time which might be necessitated by the desirability of going slow he could at least reach the police station at 1-00 p.m. Even then there would be more than five hours unaccounted for. Clearly therefore, the first information report, however, large an allowance be made, for the genuine difficulties of the complainant, was grossly belated.
5. Even this, however, is on the assumption that it was necessary for the appellant to go up to Police Station Kashmore which is 12 miles away. Admittedly, however, there is police outpost in Geehalpur which is only 100 paces away from the house of the first informant. It is incredible that the first informant should not wish to approach the authorities at this police outpost and it is equally amazing that if there was gun-lire that night at the house of the complainant nobody should have been attracted from this police outpost or indeed from the other houses which are also admittedly within the same distance of the first informant---s house.
6. The learned Sessions Judge who tried the case has rejected, I think quite rightly, major parts of the prosecution case. Having taken into account some of the matters which I have stated and the fact no crime empties were recovered from the scene he has rejected the story of the gun-firing in the air altogether. He has also found it impossible to accept the story of theft; some part of .His reasoning is based upon certain contradictions as to the presence of the trunk in which the clothes and ornaments were said to be lying. I think that the absence of recoveries is also a matter which tends towards the same finding. It is on that account that he has refused to convict the appellants of the offence under section 394/397, P. P. C. The reluctance which I would normally feel in upsetting the findings of a trial Judge who had the benefit of seeing the witnesses on the question of identification by these witnesses is largely offset by the fact that the learned Judge himself could not accept the greater portion of the prosecution case.