' This appeal from the judgment of the learned Sessions Judge, Nawabshah, convicting the appellants for offences under sections 379 and 323/34, P. P. C. And sentencing them to R.
1. For 2 years each, and R.
1. For 6 months each respectively the sentences running concurrently has arisen in the following circumstances :-
1. It is alleged that on 3-8-1971, Ranjho, a nephew of the complainant Ali Khaskhaili, was grazing cattle in a forest near Keti Abubakr, when the appellants and one person appeared at the scene and drove away three cattle; a buffalo belonging to Ali Khaskhaili and a buffalo and a calf belonging to P. W. Mir Ranjho ran to the village and apprised Ali Khaskhaili of the happenings. Ali Khaskhaili, accompanied by Rano Khouro, Mir, Ayub and Majid, immediately took up the chase to recover their cattle. The party overtook the culprits at a distance of 8 'at has', but they were resisted by the culprits who were armed with hatchets and lathis. It is said that, though injuries were sustained by Khuro Rano, and Ayub, they succeeded in catching hold of the present appellants, while one of their companions made good his escape. All Khaskhaili, leaving the appellants in the custody of his companions, proceeded to Abji Police Out Post where an entry was made in the Roznamcha. A little later, the F. I. R. Was recorded at the Nausheroferoz Police Station, and a Police Party reached the place where the appellants had been secured and detained by the complainant's party. After due inquiry, the injured persons, including the appellants, were referred to the hospital, and the charge-sheet was submitted against the appellants alone for an offepce under section 394, P. P. C.
2. The appellants in their statements at the Court of Inquiry as well as the trial denied the allegation made against them. The complainant All Khaskhaili, P. Ws. Rano, Ayub, Koala) and Mir had all participated in the chase and they are all from the same village and some of thorn are related to each other. However, the fact remains that the appellants were totally unknown to them and there is no averment of any bad blood between the parties. All these witnesses have stated that once Ranjho had informed them about the theft of their cattle, they had immediately gone after the thieves. It is true that Ranjho, the grazier, has not been examined, but in the admitted circumstances of the case, that hardly makes any difference. It is also true that most of the witnesses have stated that they had gone after the thieves empty-handed. But patently that does not depict the whole truth as there were injuries on the persons of the appellants as stated by the mashirs, and they were also referred to the Medical Officer. Certainly, they could not have followed the thieves who were armed, all empty-handed. It is also stated by them, that the thieves had challenged and given them a stand. The rest of their version, including the number of culprits is consistent. Jagan admits that at the incident, there was a third person with them.
3. Appellant Jagan has stated at the trial as under :- "My buffaloes and young one had been stolen a month before and as usual I had informed Rais Ghulam Ali Jatoi and Baqar Shah and was on the lookout. On that day I and my other cousin co- accused Makhno while passing by the village of the complainant found our stolen buffaloes in the herd which was being grazed by the boy. We picked out the buffaloes and the young one which bore our marks, showed them to the boy and told him to go and bring his elders and in the meantime we were staying in the nearby village of Machies. The boy went and brought Majid and others to whom also we made similar claim. They fought with us and gave us injuries and foisted this case against us and on arrival of police they substituted the buffaloes. We informed the police and the Sub-Inspector after verification registered our report and sent for the other party also but did not secure our buffaloes. We are innocent. We did not commit any theft."
' Appellant Makhno adopted the statement of the appellant Jagan.
4. There is nothing to show that the appellant Jagan had lost any cattle. Even Rais Ghulam All Jatoi and Baqar Shah have not been examined. Even if the cattle belonged to them, the proper course for the appellants to adopt, was to report to the police authorities and not to drive away the cattle.
There was no occasion as alleged, to wait at the village of Machies. Obviously, this was a tissue of lies. The appellants had apparently stolen away the cattle, knowing that Ranjho, a boy, who was grazing the cattle, could not offer any resistance. However, they failed in their design because of the timely action taken by the complainant's party who overtook them within a short distance. The version of the prosecution witnesses examined, is not open to any doubt.
5. It was contended by Mr. G. M. Qureshi, learned counsel for the appellants, that the trial was vitiated because the cattle had not been produced at the Court. I am afraid there is no substance in this contention, because the case of the appellants themselves was that the cattle in question did not belong to them, and the three cattle which they had taken along with themselves, had been substituted. Patently, this was a specious plea, unworthy of any serious consideration. There is no support forthcoming for this contention, and it cannot be said that Jagan had lost any cattle at all, not to talk of the substitution later on.
6. I am therefore clearly of the opinion that the conviction of the appellants is not open to any exception. Even the sentence cannot be said to be severe in the circumstances of the case. I will therefore uphold their conviction and sentence, and dismiss the appeal. The appellants are on bail, and they will surrender to their bail bonds to serve out the unexpired portion of their sentence.