1. ' This is an appeal against the judgment passed by Sessions Judge, Dadu convicting the appellant in Sessions Case No,123/1991 under section 380, P.P.C. Read with section 14 of the Offences Against Property Ordinance (No,VI of 1979), dated 11-5-1992 whereby he convicted the appellant/accused and sentenced him to undergo R.I. For three years and to pay a fine of Rs,1,000 failing which to undergo R.I. For a term of six months more.
2. ' The brief facts leading to this appeal are that on the night falling between 2nd and 3rd April, 1991 at about 12-30 a.m. Fazul and his brother Barkat woke up on barking of dogs and found three thieves standing on the cattle pen and that one out of them was untethering the bullock. Barkat lit the torch and in the light of it they identified the present accused and Abdul Khaliq while the third could not be identified and raised cries which attracted Karam, Nawab and other co-villagers and with their help they caught hold the present appellant accused who was taking away the bullock. It is also the case of the prosecution that during struggle Fazul received injuries, the other two accused ran away leaving the present applicant/accused. Fazul lodged his report at Police Station, Thariri Mohabat which was registered by A.S.I. Shah Muhammad as Crime No,26/1991 under sections 457, 380, P.P.C. Read with section 9 of Hudood Ordinance, A.S.I. Noted injuries on the person of Fazul and referred him to Medical Officer, Taluka Hospital, Mehar and visited the place of incident in presence of Mashirs Urs and Juman and arrested the accused and recovered one iron rod lying by his side and also secured a bullock and examined the witnesses and after completing the investigation, submitted the papers to the S.H.O., Police Station, Thariri Mohabat who challenged the same and the same was registered as Sessions Case No,123/1991.
3. ' Charge was framed as Exh.3, plea of the accused as Exh.4. In support of the case, the prosecution examined P.W.1 Fazul Exh.5 who produced the F.I.R. No,26 of 1991, P.W.2 Barkat Ali, affidavit of Karam as D.2. P.W.4 Nawab Exh.8, affidavit of Nawab as D.3, P.W.5 Shah Muhammad Exh.9, Mashirnama regarding injury of Fazul as P.2, Mashirnama of scene of offence as P.3, Mashirnama of arrest as P.4, Mashirnama regarding recovery of bullock as P.5, agreement of Fazul P.6, P.W.6 Muhammad Urs Exh.11, statement of D.P.C. Closing his side as Exh.13, Defence plea of the accused as Exh.14, statement of accused on oath as Exh.15 who examined defence witness D.W.2 Muhammad Exh.17, D.W.3 Muhammad Urs Ddi.18 and closed his side as Exh.19. Application under section 540, Cr.P.C. As Exh.20, Court-witness No,1 Qazi Nazir Ahmed Exh.21, statement of Advocate for accused for giving up P.W. Khadim Hussain as Exh.22.
4. ' Learned counsel for the appellant has argued that the witnesses are interested and are related to each other. P.W. Barkat is brother of complainant Fazul. While P.W. Nawab is cousin of complainant and P.W. Barkat. These witnesses were examined by the police after six days and they had also sworn affidavits. As such the Court has examined Qazi Nazir Ahmed, Advocate and Notary Public, Dadu who had attested the affidavits of Barkat Ali, Karam and Nawab wherein these witnesses exonerated the appellant accused and have stated in their affidavits that the present appellant/accused was a guest in their village and had come there on commotion while the thieves had fled away leaving behind the bullock. According to affidavits the present appellant/accused is to the offender but in the Court they have supported the prosecution case and have given go-bye to their affidavits P.W.6 Muhammad Urs Exh.11 has stated and admitted the relationship. According to him P.W. Karam is his cousin. P.W. Nawab is Masat while Moula Baths is maternal-uncle of his father. As such all the witnesses are inter-related and highly interested one.
5. The learned Advocate has further argued that the bullock which is the bone of contention is neither produced in the Court nor shown to the witnesses nor to the Investigating Officer, as such he has relied on a case Liaqat Abrader and others v. The State reported in PLD 1987 FSC 43 in which it was held as under:- "Case property was not produced in Court when complainant was examined."
6. ' Mr. Isserdas. Learned counsel for State has conceded and has argued that the bullock which is a bone of contention was neither produced in Court nor shown to the witnesses or the Investigating Officer at the time of trial. All the witnesses are inter-related, as such he has not supported the prosecution case.
7. ' I have heard the arguments of both the counsel and with their assistance have perused the record.
8. All the witnesses are inter-related and are family members, the property neither shown to the witnesses nor to the Investigating Officer at the time of trial. All the witnesses have sworn their affidavits which were attested by an Advocate and Notary Public who was also examined by Court as Court-witness, as such the witnesses have changed their version twice. The prosecution, as such, has failed to prove its case beyond reasonable doubt. The accused has only to create doubts which he has successfully done. I have accordingly acquitted the accused by my short order, dated 4-3-1996 and have accepted his appeal and these are the reasons for my short order.