1. Noor Muhammad alias Noora, aged 30 years, has been convicted by a learned Magistrate Section 30, Multan under section 41:1 read with section 75, P. P. C., and sentenced to seven years' R.I., vide his judgment dated 19-5-1:969. The appellant has challenged his conviction and sentence by this appeal.
2. The prosecution case is that in the early hours of morning of 19th December 1968, when Abdul Majid, A. S. I. (P. W. 8) in the company of two Foot Constables and Ataullah Shah (P. W. 2) and Shera (P. W. 3) was present on a nakabandi near Mour Mithru in Police Station Mithru, District Multan, the appellant came on the back of a camel and of the asking of the A. S. I. Disclosed that he had stolen that camel from the house of one Amir of Chak No. 92/W. B. (P. W. 1). He was apprehended at the spot. The camel was taken into possession vide memo. (Exh. P. A.) and a report (Exh. P. A.) drafted at 3-15 a.m., was sent to Police Station Mithru, which is at a distance of six miles from the place. Of naka bandi where a case was registered at 4-15 a.m., vide formal F. I. R. (Exh. PC/1. In the challan report submitted under section 173, Cr. P. C., it is also mentioned that from the personal search of the appellant, two live cartridges were recovered in respect of which a separate case presumably under the Arms Ordinance was instituted. It is not known as to what happened in that case.
3. At the trial, Amir (P. W.) stated that theft was committed of the camel in dispute from his house on the night between 18th and 19th December, 1968. On the morning of 19th however, the police brought the camel and he identi--fied the same. His statement is supported by Allah Diwaya (P. W.
4. 4) and Sikandar (P. W. 5). They are his close relations. The recovery of the camel at the naka bandi was supported by Abdul Majid A. S.I. And Ataullah Shah and Shera P. Ws. Kh. Abdul Latif (P. W. 6) H.
5. V. R., from the Record Room of D. C.'s office proved the previous conviction of the appellant on 30- 3-1964 for an offence under section 411, P. P. C., and a sentence (if one and a half vide certificate Exh. P. B. The appellant, when examined, denied the recovery from 1--n3, did not claim the ownership of the camel and attributed his implication in the case to the ill-will of the police because according to him his name is mentioned as a `badmash' in the police record and be did not report to the police station for attendance therefore the police was annoyed with him. The learned trial Magistrate believed the prosecution evidence and convicted and sentenced the appellant as noted above.
6. The fact that the appellant has been treated by the police as a badmash is established from the certificate shanakht in column No. 6 whereof it is mentioned that the appellant is a history-sheeter and is under surveillance of the police.
7. The evidence produced by the prosecution in support of the recovery is highly discrepant.
8. According to the F. I. R. The naka bandi was at Mour Mrtru while according to Ataullah Shah (P. W. 2) it was Garha Mour Adda Lorrian. Shera P. W. Came out with yet another version that the naka bandi was on a bridge of a distributory of Chak No. 102/WBB., which is at a distance of one furlong from Garba Mour. Site plan which has been duly proved by the A. S. I, does not show any bridge or distributory near the place of naka bandi. It simply shows a crossing of two roads as the place of naka bandi. The A. S. I. As P. W. 8 has stuck to his position in the F. I. R., namely that the naka bands was at Mour Mithru. This is a very serious discrepancy; rather it amounts to contradiction. The place of naka bandi not being certain, it is not possible to come to definite conclusion that there was a naka bandi at all. According to Ataullah Shah P. W. After some writing at the place of naka bandi the appellant was taken to the police station. Till the completion of the formalities at the spot it had become morning time. The place of naka bandi is six miles from the police station as is mentioned in column No. 4 of the F. I. R. The time when the F. I. R. Was recorded at the police station is mentioned as 4-15 a.m. If it had become morning time at the place of naka bandi (it being month of December time right be at about 7 a.m.) it becomes unintelligible as to how the F. I. R. Got recorded at 4-15 a.m. There is another aspect of the case in respect of time. Amir P. W. Who is resident of another village and police station stated that the theft took place during the night time and it was in the morning when the wahr party was searching for the camel that they met the police party outside their own Chak. Thus there are three versions about the time. The naka bandi party was present at the place of naka bands in the morning. According to the formal F. I. R., naka bandi party had reached the police station at 4-15 a.m. And according to Amir P. W., the naka bands party had reached Chak No. 92/W. B. In the morning. It is impossible to reconcile all these versions, it appears as if the case was prepared by the police somewhere in the police station and the story about the naka bandi is not convincing. According to Ataullah Shah P. W. The appellant came near the naka bandi party on the mere asking of the Thanedar while according to Shera P.
9. W. The naka bandi party had to encircle the appellant and had then to apprehend him. It was not a simple voluntary coming of the appellant in the trap laid by the A. S. I. The A. S. I. Who appeared as P. W. 8, did not specifically support P. W. 2 or P. W.
3. He simply said that he apprehended the appellant.
10. According to Ataullah Shah P. W., there was a personal search of the appellant and nothing was recovered from him while according to Shera P. W. There was no personal search. The A. S. I. Has not said anything about personal search, but in the report made by him under section 173; Cr. P. C.
11. On which the cognizance of the offence was taken against the appellant and of which a judicial notice can be taken, mention is made of personal search of the appellant and that two cartridges were recovered by the police. This also shows that a fake case was made against the appellant: Lastly, it is interesting to note that according to Ataullah Shah P. W. There were five persons in the naka bandi party. Two were Foot Constables one A. S. I., and apart from himself there was another person from public, namely, Shera, on the other hand, according to Shara P. W. Ataullah Shah P. W.
12. Was not a member of the naka bandi party. Another person named Amin Shah about whom he was dead certain and stated that he remembered the name of that person as Amin Shah very vividly, was a member of the naka bandi party, while according to the initial report (Exh. P. C.) apart from the police and two members of the public, namely, Atauilah Shah and Shera, there was a Razakar also in the naka bandi party. This shows that the witnesses are not consistent about who joined the naka bandi party.
13. All the above circumstances indicate that the plea raised by the appellant might reasonably be true. He might have been falsely implicated by the police on account of some annoyance.
14. Otherwise there is n a explanation for the above contradictions. I hold that the case has not been proved against the appellant. I accept his appeal, set aside his conviction and sentence and acquit him. He shall be released forthwith if not required to be detained in any other case or matter.