1. This is an appeal against the judgment of City and section 30 Magistrate convicting the appellants under section 395 read with section 397, P. P. C. And sentencing them to undergo R. I. For seven years and to pay a fine of Rs. 2,000 or in default to undergo further R. I. For 18 months.
2. Qasim Ali Shah is a resident of Machi Bundo in Jacobabad District and owns a tractor, with a trailor.
3. Mohammad Ismail complainant was driver of the tractor. On 10-6-1966 Qasim Ali Shah asked the complainant to carry some wheat chaff and bags of onions on the trailor of tractor to Shikarpur, and also paid him Rs. 500 for purchasing diesel oil. Ali Khan, Din Mohammad, Ghulam Kadir and Wazir accompanied the complainant for unloading the bags of onions. They left at 10-00 p. m.
4. Along the Kandkot Road towards Shikarpur. When they reached near Gohar Shakh situated in Taluka Shikarpur, a jeep bearing No. QA 7586 came from behind and overtook the tractor. It stopped on the road blocking the way and therefore the tractor had to be stopped. Six persons armed with guns came out from the jeep and at first they demanded petrol. But when they were told that the tractor was running on diesel, one of those persons fired in the air directing the complainant to put out the lights of the tractor. This was complied. Then the - culprits took search of the person of the complainant and took out the amount of Rs. 500. The complainant tried to raise cries but he was hit on the head by the gun barrel. The other occupants of the tractor were also ordered to come down and Ali Khan was also given a blow by the barrel of the gun. One of the tractor's tyre was punctured by the culprits by firing the gun shot as the complainant refused to take out the air valve of the wheel tube. All the culprits were clearly seen in the light of the tractor before it was put out. After the culprits left in their jeep, the complainant removed the punctured tyre and tube and after detaching the trailer returned on the tractor leaving behind Ghulam Kadir and Ali Khan. He covered about 1i miles when he found Sardar Ali A. S. I. P. Rustam Police Station checking a truck. He was informed of the incident. Police Jamadar "accompanied the complainant to proceed to Rustam Police Station for lodging the report while S. I. P. Along with Din Mohammad witness followed in the truck to secure the dacoits. After a few miles away from Jacobabad be saw a jeep standing on the road--side. Abdul Sattar witness was the driver of the jeep. Inquiries, were made from him. The jeep was secured and the drive, showed the various places and houses where the culprits had taken rest.
5. Haji Ghulam Murtaza S. I. P. After recording the first report at 10.00 a.m. On 11-6-66 examined the injuries on the complainant and sent him to the hospital. He then went to the scene of offence.
6. Injured Ali Khan was also examined and he too was---sent to the hospital. The tyre of the tractor was found punctured by a fire-arm bullet. Then the statements of the witnesses were recorded.
7. Thereafter Sardar Ali A. S. I. P. Arrived there and verified the investigation. Further investigation was also made on 12-6-66. Statements of Abdul Sattar and others were recorded under section 164, Cr.
8. P. C. Shah Zaman who was one of the culprits obtained bail before arrest. Ghulam Hyder appellant was arrested on 17-6-1966 and the identification test was held on 23rd June 1966. The witness succeeded in picking out both the appellants. The learned Magistrate after recording the-- evidence discharged Shah Zaman and framed charge against the present two appellants. They proclaimed their innocence and denied the allegations. The learned Magistrate on the assessment of evidence found the appellants guilty of the offence and, sentenced them.
9. There can be no manner of doubt that the dacoity was committed and this is borne out by the evidence of the witnesses who stated that they were going in the tractor carrying bags of onions when on the way they were waylaid by six unknown persons who came in a jeep and robbed the complainant of Rs. 500 which he was carrying for the purchase of diesel oil and injuries were caused to the complainant and another witness Ali Khan. The number of the jeep was noted and it was secured by the police in Taluka Jacobabad. Abdul Sattar witness was the driver of the jeep. He too has supported the factum of dacoity. This is further borne out by the medical evidence. The medical officer who had examined Mohammad Ismail and Ali Khan found two injuries on Mohammad Ismail and one injury on Ali Khan having been caused by blunt weapon.
10. As regards the identity of the appellants with the crime, the only evidence against them is that they had been seen ac the time of dacoity in the light of tractor and subsequently they were-- picked out in the identification test which was held before the, Magistrate. To prove this Umar Khan, Head Munshi and Assistant Commissioner and the two police officers who had held the identification test were examined. It is further borne out by the mashirnamas prepared to that effect.
11. On assessm ent of the evidence on record it is not possible to place reliance upon this identification. Admittedly it was pitch dark when the incident was taken place. The witnesses claimed that they had seen the faces of the culprits in the light of tile tractor. It is an admitted position that after the culprits had ""'come out from the jeep they had ordered the complainant to switch off the lights and compliance was immediately made. Consequently there must not have been the light for long so ash to render it possible for the complainant and the witnesses to clearly see the faces of those culprits. All of the witnesses were not sitting on front seat but some of them were sitting behind and, therefore, it could not be possible for them to clearly mark the faces of the culprits. These was also confusion. Ghulam Hyder stated that the light was put out as soon as the jeep stopped. Thus there could be no question of any light when the culprits came out of the jeep.
12. Moreover, it has also been admitted by the witnesses that they had seen Mitho appellant before the test. In this connection I take up the evidence of the witnesses one by one Mohd. Ismail stated that after 10 days of the incident he was called at the police station and put to identification test and he had identified two from amongst them and they were Ghulam Hyder and Mitho. Again stated that two tests were held. In the first test he had picked out Ghulam Hyder and in the second test he had picked out Mitho after another 12 or 15 days. In the cross-examination he admitted that when Mitho was arrested he was called at the police station and he had seen Mitho appellant sitting there. He then told the police that he was one of the culprits. The identification test was held on the following day. Ghulam Kadir stated that he was called at the police station after 10 or 15 days and he picked out Ghulam Hyder and after two or three days he was again called and he picked out Mitho appellant. He admitted in the cross-exa--mination that he had seen Ghulam Hyder appellant at the police station before the test was held. Ali Khan stated that after ten days he picked out Mitho. In the cross-exa--mination he too admitted that when he was called at the police station he had seen Mitho appellant before the test. Din Muhammad stated that after about 10 days he had picked out Ghulam Hyder in the test and after three days later he had picked out Mitho. He further stated that he picked out these persons at the instance of police and bad not seen them amongst the dacoits. Abdul Sattar driver did not implicate any of the appellants. He had clearly stated that none of the appellants was amongst the dacoits.
13. Thus from the evidence of these witnesses not only the witnesses were not in a position to clearly see the faces of culprits, but they had seen the appellants before the identification test was held.
14. The incident had taken place on 10th June 1966, while the identification test of appellant Ghulam Hyder was held on 20th June 1966 and the test of appellant Mitho was held on 23rd June 1966. The wit--nesses have given a larger period having elapsed before the tests had been held. In these circumstances no reliance can be placed upon the identification tests and the evidence of the witnesses in order to hold that the appellants were the cul--prits. However, one Rajoo was examined to show that the .Ap Alants were amongst the persons who had come in a jeep and passed night outside the bungalow of Syed Khan Rind. He was Chowkidar at that place. He had not given the number of the jeep in which those persons had come nor any identification test was held as it was claimed that the appellants were already known to him. It is not possible to scrutinise the truth of the statement. Even otherwise this evidence is not by itself sufficient to hold the accused guilty of the dacoity. It could not serve to provide the corrobora--tion of the evidence of the main witnesses which suffers from serious infirmities and is utterly useless.
15. In the circumstances the prosecution has failed to prove the case against the appellants beyond doubt. The appeal is therefore allowed and their conviction and sentence are set aside. Ghulam Hyder is in custody and should be set at liberty forthwith, if trot required in any other case. Bail bonds of Mitho are discharged.