At the material time, that is to say, on 16th June 1972, the first informant Sono lived along with his relations in the village Fateh Muhammad Bhutto which is at a distance of about five miles from the Naudero Police Station in the District of Larkana. Among these relations might particularly be men- -tioned the witnesses Bagh, Hussain Bux and Gul Sher. It is his case that on That night a little past mid-night, lie woke up upon the barking of his dogs and saw in tile light of the torch that he flashed two persons, namely one Jaffar whom he knew before and another person whom be did not then know but who is the appellant Rahim untethering the bullocks which were, as usual, tied outside the house and taking them away and in consequence he raised cries which attracted the three witnesses whom I have named and who chased the culprits. The chase was joined in by about fifty or forty other persons who belong to the Bhutto case, the first informant being a Jat, and, in the course of this chase, both the culprits were caught and one of them, namely the person who had not been identified, was injured. The culprits too, being armed with a hatchet and a lathi, injured the prosecution party and two of them, that is to say, the first informant and the witness Bagb, received injuries. The culprits were apprehended, caught, tied at the scene and later taken by the first informant to the police station where his report was lodged at 7 a.m. An investigation ensued but beyond the fact that in the course of this investigation the three persons Injured were medically examin--ed, there is no particular part of the investigation which needs specific mention. The two apprehended culprits were eventually tried by the learned IInd Additional Sessions Judge, Larkana, who convicted each of them under sections 394 read with 397 and 457 of the Pakistan Penal Code and sentenced them to rigorous imprisonment for seven years and two years for the said offences respectively, The present is an appeal by both of them against these convictions and sentences.
2. Now on a first impression the prosecution evidence wears all the appearance of credit-worthy testimony the witnesses were natural witnesses belonging to the locality and indeed must have been attracted by the cries. The presence of two is In fact guaranteed by the injuries as is the actual occurrence. It is true that there are some discrepancies of a comparatively minor character in their testimony as it is true that none of them admitted having given any injuries to either of the culprits. But were it not for certain features of the case which I shall presently notice, I should not regard this as criticism necessarily fatal to the credibility of the witnesses. It is also true that other witnesses of a large number are admitted to have taken part in the chase and belong to a different case but have not been examined. It is not, however, to be believed that these witnesses must have seen the actual untethering of the cattle and their non-examination too, although undesirable, might nor have seriously affected the prosecution case for reasons which are obvious. I, therefore, proceed to enumerate the circumstances which, in my view cast, very grave doubts on the credibility of the prosecu--petition version of the incident.
3. The two accused persons, although admittedly not related to each other, claimed to be friends of one another. Neither denied their apprehen--sion at the alleged scene of offence nor the fact that an incident had taken place though they completely denied that they were thieves in their state--ments under section 342 of the Criminal Procedure Code, they claimed that they were dealing in cattle and that the first informant had purchased a bullock from the appellant Jaffar and that, of the agreed price for this bullock, a sum of one hundred rupees was still outstanding against the first informant which they had gone for the purpose of demanding from him. Upon this there was a dispute and an exchange of harsh words resulting in blows and they alleged that the incident, as put forward by the prosecution, was fabricated not only to explain this incident but also to take advantage of it falsely to implicate them in this crime. It is noteworthy that the first informant ascribed no motive for the crime, either in the first information report or in his own examination-in-chief in Court. In the course o cross-examination, however, he had to admit that he had indeed purchased a bullock from Jaffar and that a sum of one hundred rupees was still due from him and that both the appellants had come to one Mahmood on the evening previous to the night of the incident whereafter they came to him and an altercation had taken place which was witnessed by two persons named Matto and Budho. Neither of these nor Mahmood was examined as a witness. In these circumstances, the denial of the other witnesses of any knowledge of the cattle trade carried on by the appellants or of a transaction between either of them and the first informant assumes a less innocent significance than at first appears. Nor in these circumstances is the allega--petition that Rahim was not previously known to the prosecution party as credible as it first sounded.
4. The medical evidence in this case also left some thing to be desired. The injured witnesses are stated to have been examined by the medical officer on the 16th of June 1972, when the doctor found that the injuries which they had sustained musthave been caused within the previous twenty four hours. Nevertheless the appellant Rahim was examined by the doctor on the 17th and yet his injuries are described by the same doctor as being about twelve hours old. The discrepancy is obvious and further mystery is added to it by the fact that the mashirnama of the arrest of the appellant Rahim does, however, mention an injury upon his person. Clearly these were matters which arose from the evidence of the prosecution to explain them but the prosecution made no such attempt. It was argued before the Trial Judge with some plausibility that the injuries must have been caused on two separate occasions though there is an obvious flaw in this argument for, upon the care of the defence, the injury upon the appellant should have ova older rather than the injuries upon the prosecution witnesses. The learned Judge ascribed this to a lack of experience on tie port of the medical officer though that this could be a case of deliberate bungling. This examination of tile medical evidence shows somewhat less care the usually expect from this particular learned Judge.
5. With these matters in mind, the non-examination of any of the Bhutto witnesses seems to me now to strengthen the doubts which I already entertain as to the veracity of the prosecution case.
Upon the whole, there--fore, I am not at all satisfied that it would be safe to sustain the convictions in this case.
6. I should like to record my appreciation of the care and candour shown by learned counsel who appeared for the State, Mr. Imam A.I Kazi, who marshalled these circumstances lucidly for my consideration.
7. I therefore allow this appeal, set aside the convictions and sentences imposed upon the appellants and acquit them. They are on bail and their bail bonds will be cancelled.