MUHAMMAD AMIR MALIK, J.-Zaman s/o Fazal etc. Appellants were tried by Magistrate Section 30, Faisalabad and vide judgment dated 7.1.1982 convicted and sentenced as under:- i) Zaman s/o Fazal, Lai, Zaman s/o Rajab, Muhammad Ali, Tufail Muhammad, Sanaullah, S.L, Muhammad Salim, AS1, Abdur Razzak. Nosher. Allah Yar and Gul Zaman. Constables. Under Section 148 PPC one year's R.I. Each. Under Sections 451/149 PPC one year's R.I. Each. Under Sections 392/149 PPC five years R.I. Each.
Ii) Muhammad Amin, Muhammad Sharif, Rashid Ahmad, Muhammad Salim, Zaman s/o Fazal, Lal Muhammad Ali, Muhammad Tufail.
Under Section 467/149 PPC five years R.I. Each.
The convicts have filed appeals (Crl Appeals No.7, 13, 14 and I6 of 1982). All are being disposed of by this single judgment.
2. The occurrence took place on the night intervening 23/24.3.1977 and Maqsood Ahmad complainant (P.W.2) lodged the FIR after having obtained a direction of the High Court in this regard on a writ petition against police officers etc. On 27.1.1978. The case was registered under Sections 379, 467, 448 PPC. The appellants were charge-sheeted for the same on 27.8.1980.
3. According to the FIR the complainant alongwith his father Muhammad Ali (PW.1), Muhammad Iqbal (P.W.6), Rehmat Ali (P.W3) and other family members were sleeping at the house at night where the police officers and the complainant alongwith Flamandization s/o Rajab, Zaman s/o Fazal Lal and Muhammad Ali appellants trespassed into the residential Khata. Muhammad Ali was called out by the police officers who was abused, beaten and asked to hand over his cattle. Two bullocks and three buffaloes were forcibly taken away and the thumb impression of Muhammad Ali was also obtained on a blank paper. Later on it was learnt that receipt with date as 113.1977 had been prepared on behalf of Muhammad Ali in which Tufail, Zaman s/o Fazal,Lal Muhammad Ali, Muhammad Rafiq and Muhammad Shah were cited as witnesses. Under that fictitious and forged receipt the cattle were handed over to Tufail appellant. There was no decree against them and under the garb of a Salsi decree the cattle had been taken away. There was also an order of status quo from the Civil Court, Samundri in favour of the complainant in this regard.
4. The main defence plea was given by Tufail appellant. He pleaded that about 1^/2 years before the occurrence his wheat stack had been put on fire and for it the sons of Muhammad Ali, P.W.
Were suspected, in Punchait Zulfiqar (D. W.l) was appointed Arbitrator who held them guilty and the cattle which, according to the decision of the Punchait had been left with Zaman Lumbardar appellant were given to him (Tufail) who had sold the same for Rs.10,000/- and the money was with him. He ascribed the case to enmity. Zulfiqar (D. W.l) supported him.
5. The prosecution case rests upon the statements of Muhammad Ali (PW.1), his son Maqsood complainant (P.W.2) Rehmat Ali (P.W.3), Muhammad Anwar (P.W.4) and Muhammad Iqbal (P.W.6).
The case was investigated by Muhammad Nawaz and Zakauddin, DSPs.(P. Ws.5 & 7).
6. Learned counsel for the appellants contended that the appellants had been charged for the offence under Section 379/448/467 PPC so the conviction under Sections 451/392/149 PC was illegal. The precise arsuments was that the charge being for a lessor offence, punishment for a graver offence could not have been recorded. To this the learned counsel for the State had no reply. He also asserted that if some receipt had j?Een forged as was the case in the FIR and in the evidence, the parties having admittedly filed civil suits in which the said receipt was under determination, the offence under Sections 467,468 PPC could only have been tried on the complaint by the Civil Court in view of the provisions of Section 195 Cr.P.C. Even this argument could not be replied.
7. However, the learned State Counsel made a request that for the offence under Section 379 PPC the case may be remanded.
8. I have been taken through the statements of the witnesses and I think that in the circumstances of the case the request may not be granted. The occurrence took place as far back as March, 1977 and the case was registered in January, 1978. The conviction was recorded in January, 1982 and the appeals are being disposed of in 1990.
9. Muhammad Ali (PW.1) stated in examination-in-chief that he and Tufail appellant had a fight before the present occurrence and they had also a dispute with respect to a tubewell about 1-1/2 years before the occurrence. The wheat of Tufail had been set on fire and he had suspected his sons for the same. He denied the suggestion that for the wheat being burnt, to remove the suspicion he had asked the appellants to take oath from him. He had made statement to the police in this respect which he denied at the trial and was confronted and contradicted. He had also stated to the police that Muhammad Zaman s/0 Fazal appellant had stood surety on his behalf and Zulfiqar (D. W.1) was appointed Arbitrator. This too he denied and was confronted and contradicted. He could not affirm or deny that he had filed a civil suit with respect to the taking away of the cattle. He then came round to admit that he had filed such a suit but he failed to remember as to who were the defendants in that case. Rehmat Ali, P.W. Showed ignorance with respect to the burning of wheat or that Zulfiqar had been appointed as Arbitrator, the cattle were left with Zaman appellant and it was settled that if Zulfiqar did not report innocence of the sons of Muhammad Ali, P.W. Rs.11,000/- would be paid as damages to Tufail. He even showed ignorance whether any writing in this regard had been executed. Muhammad Khan (P.W.9) showed ignorance whether for removing the suspicion as to the setting of wheat on fire by the sons of Muhammad Ali, P.W., Zulfiqar (D. W.l) was appointed the Arbitrator and Muhammad Ali had given the cattle to Zaman Lumbardar appellant as a guarantee or that the disputed cattle of the present case were the same with respect to which the decision was given by Zulfiqar against Muhammad Ali and asked Zaman Lumbardar to hand over the same to Tufail. The two D. S.Ps. Seem to have supported the plea raised by Tufail appellant. In view of the evidence there seems to have been a genuine dispute between Muhammad Ali on the one hand and Tufail on the others. It can reasonably be inferred or in any case probability is there that for setting the wheat of Tufail appellant on fire the sons of Muhammad Ali who were suspected, had appointed Zulfiqar (D. W.1) as Arbitrator and the cattle were given to Zaman Lumbardar appellant as guarantee and the sons of Muhammad Ali having been found guilty, the cattle were taken away from the guarantor by Tufail. Tufail has clearly admitted that the cattle were given to him and he had sold the same for Rs.10,000/-In such circumstances the remanding of the case is not called for.
10. The result is that the appeals succeed. The convictions and the sentence of the appellants are hereby set aside. They are on bail and stand discharged of the bail bonds.