' This revision application is directed against the conviction and sentence passed against applicant Ali Chaneho by the Civil Judge & F. C. M., Khipro and maintained in appeal by the Sessions Judge, Sanghar.
2. It is the case of the prosecution that on 30-1-1972 at about 2-00 a.m. Complainant Allah Bux heard noise from the western side of his house and on waking up he found two persons driving away his pair of bullocks. The complainant then woke up his brother Lakho and raised cries of thief which attracted villagers, Mooso, Gullo, Usman and others. On the comtnotion the thieves left the bullocks and started running away after throwing ghobatas at the pursuers. The complainant and Lakho received injuries and they also caused injuries to one of the two culprits, namely, Ali Bozdar while the other culprit made good his escape. Ali Bozdar was tied up and kept at the wardat along with the bullocks. He was asked as to who was the other culprit with him to which he replied that he was Ak Chaneho. Next day at 2-10 p.m. Allah Bux lodged his report at Khipro police station; the distance being 10 miles from the wardat. The Police arrested applicant Ali Chaneho on 31-1-1971.
Both the culprits were then sent-up in Court and convicted for offences under sections 382 and 323 read with 34, P. P. C. They were sentenced to R. I. For 2 years and a fine of Rs, 1,000 or in default R. I.
For 4 months under section 382 and to R. I. For 1 year and a fine of Rs, 50 or in default R. I. For 2 months more under section 323, P. P. C. Only Ali Chaneho has preferred this revision application against the conviction and sentence.
3. It has been argued by the learned counsel on behalf of the applicant-that the entire evidence against the applicant consists firstly of identification of the applicant at night when blows were struck and the two thieves were running away. Secondly there is the alleged extra-judicial confession by Ali Bozdar in which he implicated Ali Chaneho as the co-accused.
4. The F. I. R. Shows that there was a struggle between the two thieves and the villagers and injuries had been caused to both of them and thereafter one of j the two thieves had escaped. According to the evidence the applicant Ali Chaneho was arrested on 31-1-1972. There is, however, no evidence of any injuries on the person of Ali Chaneho. That would suggest that either he was not present in the struggle or that he was merely standing at some distance and on seeing the villagers he ran away.
5. It has then been admitted in evidence by complainant Allah Buxand his brother Lakho that they were haris of one Yousuf Chaneho Zamindar and had cultivated his land during the previous year.
That Ali Chaneho was Yousuf Chaneho's sister's grandson. That Yousuf Chaneho had refused to give them the land for cultivation for the subsequent year. This may not amount to enmity but they would certainly have some feelings or bias against Yousuf Chaneho while Ali Chaneho was admittedly a near relation of Yusuf.
6. Keeping these facts and circumstances in view the evidence with regard to identification may then be discussed. According to the learned-counsel for tine applicant the date of offence, namely, 30-1-1972 coincides with the day of the Lunar month. According to him there would be hardly any moon at 2 or 3 a.m. And even if there would be moon it would be a vanishing moon. He has accordingly argued that identification at night under these conditions cannot be relied upon as safe basis for conviction. It might be pointed out in this connection that P. W. Lakho has admitted in his evidence that he had identified Ali Chaneho, as the accused persons had abused them. But in effect this is an admission on the part of the main prosecution witness that Ali Chaneho was identified by his voice. Presumably he was not identified in the light of the moon. The next point to be considered in this regard is the manner of questioning the culprit who was caught on the spot as to who was the other fellow with him. Had the other fellow been known to the witnesses and had he been already identified there would have been no occasion to put such a question to the persons who was caught. Identification by voice is hardly of any evidentiary value and at the most it can be used for corroboration but not as the sole basis for conviction.
7. The other piece of alleged evidence is the extra-judicial confession by Ali Bozdar implicating the present applicant as the co-accused. It has been rightly pointed out by the learned counsel for the applicant that this piece of evidence which was incriminating circumstance was not even put to applicant Ali Chaneho in order that he should explain it. In the absence of such a question having been put to the applicant this circumstance must be left out of consideration.
8. We are thus left only with the piece of evidence regarding identification of applicant Ali Chaneho.
It is possible that this identification may have been on the moonlight but it is certain that this identification was by voice as definitely stated by the main eye-witness Lakho. Such identification can by no means be relied upon as the sole basis for conviction in view of the strained relations of these eye-witnesses with the family of the applicant, and in view of the fact that there were no other corroborative circumstances such as presence of marks of injuries on him. These points have not even been discussed either by the trial Court or the lower appellate Court. The case against the applicant has therefore not been sufficiently proved. The trial Court appears to have been prejudiced against the applicant because of some other cases regarding which legal evidence had not been brought on record.
' In the result the conviction and sentence passed against the applicant are set aside and he is acquitted. The applicant is in jail, he may be forthwith released if not required in any other case.
10. The revision application is accepted accordingly.