1. This is an appeal against the judgment of the Sessions Judge, Jacobabad convicting the appellant Amul for offence under sections 392 and 397, P. P. C. And sentencing him to undergo R. I. For 7 years while convicted the remaining for offence under section 392 and sentencing them to andergo R. I.
2. For 5 years. All the appellants were further convicted for offence under section 342, P. P. C. And sen- -tenced for 3 months' R. I. Amul was also convicted for offence under section 13-D of the West Pakistan Arms Act to undergo R. I. For 6 months. Sentences were ordered to run con--currently.
3. On 26th December 1965 complainant Abdul Aziz took his corn in his bullock cart to Thul. He delivered it to Seth Moromal, but he could not get the payment as it was Sunday and the banks were closed. Rehan and Rahimdi met him at Thul. They lived at a distance of about two miles from his village. At Bipahiri time all the three set out for their villages in the bullock cart of Abdul Aziz. After they covered the distance of about six miles four men appeared in front of them. The sun has not yet set. The com--1plainant and the other two identified the appellant Amul and absconder Nabu, while the remaining two were not identified as they were not known Amul and Nabu were said to be armed with guns while the other two had lathis. The four culprits asked him to get down from their cart, so they com--plied. The culprits took out the rope from the cart and tied the hands of the three occupants of the cart. Then the two unknown culprits took away their bullockcart while Amul and Nabu stood guard over them. At Sumhani time those persons also left issuing threats. All the three passed their night at the same spot where they were left. In the morning they untied themselves with the aid of mouths and proceeded to Hamal Khar, w inform him but he was not available. Hamal Khan arrived at noun time and was given information of this incident. He directed the appellant to lodge a report. Accordingly Abdul Aziz went to Thul Police Station reaching there at 5..45 p.m. And the first report was lodged.
4. The police started the investigation and visited the scene of occurrence. There was no foot mark on account of the traffic. The appellants Abdullah and Abdul Nabi were arrested on 5-1-1966 and their identification test was held on 6-1-1966 in the presence of Mr. Imdadaly, Magistrate as well as mashirs. The complainant and two witnesses succeeded in picking out the accused. Mashirnama Exh. 15 was prepared. Amul appel--lant was arrested on 12-6-1966. The appellants proclaimed their innocence and pleaded enmity.
5. It is clear from the statement of the facts that there were three eye-witnesses, namely Abdul Aziz, Aahamdal and Rehan. They implicated all the three appellants. According to them Amul was already known to them while the other two were picked out in the identification test which was held on the following day of their arrest. The fact of identification test was supported by the evidence of the mashir and the Magistrate. The appellant had failed to establish the enmity which they had alleged. On the basis of these facts, the learned Sessions Judge found the appellants guilty of the offence for which they were convicted, and sentenced as above.
6. The learned counsel for the appellants urged before me that no incident had taken place and in the alternative he urged that even if the incident had taken place, it took place at ' night and the culprits were not identified. It was further urged that there was delay in lodging the report and it casts doubt on the prosecution evidence. It was also urged by him that the identification test was unreliable as the witnesses had already seen the two appellants who were said to have been picked out. There was also suggestion of enmity in the cross-exami--nation although it was not admitted by the witnesses.
7. On consideration of the arguments I am of the view that the case against the appellants is not free from doubt. The first thing to notice is the lateness of the complaint. The incident took place before sunset while the first report was lodged on the following day at 5-45 p.m. Although the Police Station was situated hardly at a distance of about six miles. An attempt was made to explain the delay in lodging the report. It was stated that the hands of the witnesses were tied and therefore, they could not leave that place till morning when they contrived to remove the knots and none happened to pass whole night. This explanation in rediculous. Only their hands were tied and, therefore, they could freely move about. There is no allegation that their legs were also tied. It may noted that it was the month of December when it is bitter cold in the night and so they could not choose to remain there in the open without any shelter against the severity of cold. Admittedly their villages were situated hardly at a distance of two miles from the scene of offence while there was another village nearby. Neither they went to their own village nor to the nearby village. It is also surprising that although it was paddy season yet none happened to pass at any time till they left that place although the incident had taken place in the afternoon.
8. Thus this delay casts doubt on the prosecution story and this doubt has not been resolved. In view of the delay in lodging the report and a false explanation given to that effect, it is necessary to look for corroboration in order to place reliance upon their evidence. No such corroboration is available.
9. The stolen property was not recovered nor there was anything found on the scene of crime to indicate that any such robbery had been committed. No attempt was made to inform the people of the village which was admittedly situated at a short distance. It is true that Amul had supported the witnesses but he was in--formed on the following day at noon and this would not serve to provide the necessary corroboration. A false statement cannot become true merely by its repetition or it is confirmed 8 that it was made.
10. Apart from 'the fact that there is no corroboration, the story of the complainant that he had taken the corn in his bullock cart and delivered to Seth Moromal, but be did not pay the money as the banks were closed on account of Sunday has been rejected by Moromal who was examined in defence. He stated that the complainant was not known to him and had never brought any corn to him. He further stated that the cash used to remain with him. In this connection it may be pointed that Moromal was cited as a prosecution witness in the challan. It was further stated that by the learned counsel for the appellants that Moromal was examined in the committal proceedings as prosecution witness and he did not support the prosecution and, therefore, he was given up by the prosecution in the Sessions Court. This statement was not controverted by the learned State counsel.
11. Yet there is another factor creating doubt about the truth of the prosecution evidence. This is in relation to the identification of Abdullah and Abdul Ghani who were not known to the witnesses.
12. According to prosecution evidence, they were picked out in the identification test held by the police in presence of a Magistrate. It was claimed by the witnesses that they had no opportunity to see the appellants after the incidentl till the test was held. However, Rahamdil stated in the] committal proceedings that the appellants were brought to the police station and when he had gone there he had seen them. Thus this identification was a farce and no reliance can be placed upon it.
13. In the circumstances the case against the appellants is not free from doubt and, therefore, they are entitled to its, benefit. The appeal is, therefore, allowed and the convictions and sentence passed against the appellants are set aside.
14. The appellants are on bail and their bail bonds are discharged.