' Khanu and Shera were tried under section 382/34 P. P. C. By the learned Magistrate Sahibazada Sultan Hamid, Magistrate First Class, Sheikhupura and were found guilty and sentenced to eighteen months' R. I. Each under the above-mentioned section. The learned Sessions Judge Lahore while dealing with their appeal upheld and maintained the order of the trial Court and thus their appeal was dismissed. Hence this revision petition.
2. The brief facts of the case are that on the night between 16/17-2-1964, the present petitioners caused injuries to Balwal P. W. And stole two sheep belonging to him. While sheep were being carried away by the petitioner Balwal P. W. Was awakened by the noise of barking of dogs and with the help of his son gave chase to the petitioners, which resulted into a fight between the parties. It is also the case of the prosecution that there took place grappling between the culprits and complainant party on which Khanu called Shera who was going ahead. Shera petitioner hit Balwal with his dang on his arms and later on they both managed to escape along with sheep. The matter did not end there. Ghulam Mustafa and his brother also arrived at the spot attracted by the noise and then all his companions chased the petitioners. The chasing party was successful in catching hold of Shera but the petitioners managed to release themselves from the clutches of their chasers and made good their escape while leaving shoes P. 1, Pagri P. 2 and hatchet P.
3. The case was reported to the police after the delay of two days. According to the prosecution the lambardar was not available to assist the complainant in reporting the matter to the police. The ease of the prosecution was supported by Balwal P. W. 1, Akbar his son P. W. 2 and Feroze Din Lambardai P. W.
3. The recovery memos are Exh. P. B. And P. C. Recovery of sheep from the petitioner is. Supported by Sultan and Ghulam Mustafa P. Ws. Who also had seen the occurrence and were classified as eye-witnesses. Mehnda P. W. 6 has deposed that at the time of making extra-judicial confession by the petitioners before the lambardar he was also present. Doctor Aftab Ahmed, Medical Officer Nankana Saheb, who examined Balwal and Akbar P. Ws., found three injuries on their persons caused by blunt weapon. This witness also examined Khanu petitioner who had received one simple injury on his thigh.
3. The petitioners pleaded not guilty and submitted that in fact there was some dispute between the parties over the canal water on the night of occurrence in which both the parties received injuries and after deliberation and consultation a false case was cooked up against them. No defence was led by the petitioners to substantiate their version.
4. It is interesting to note that the learned two Courts below while dealing with this case have lost sight of the basic infirmity with which the prosecution case suffers. It is a matter of common knowledge that sheep are never driven away like other animals but they are always carried by the persons on their shoulders when they have to steal these animals. This animal is a type which would not move an inch under any circumstance if persuaded to do so, unless and until there is a lead set by some other sheep from the flock. It is hard to believe that the petitioners would be carrying two sheep i,e, one each on their shoulders and at the same time fighting with the complainant party and still would be able to run away with such a heavy load particularly when at the same time they were being chased by the members of Washer party. To appreciate these aspects of this case, one has to be villager. A person who has never lived in the rural society would not know how the sheep are stolen. The other most important aspect of the case which two Courts dealing with this case has admitted is that one of the petitioners has also received injury during this incident. This will clearly show that the complainant party was also armed at the relevant time.
This would further strengthen my belief that story of carrying the sheep away will be simply incredible, as petitioners would be hardly in a position to perform this fact, particularly when they were being chased by Waher party. The prosecution has also suppressed the injuries which they have inflicted on the person of Khanu petitioner. With this background coupled with defence version as set up by petitioners, the element of delay assumes great significance. If the complainant party had identified the petitioners as the culprits on the very night of occurrence it will hard to conceive as to why they should not report this matter to the police immediately after the occurrence. Their waiting for full two days leads to strong inference that they were cooking up some story so as to bring the petitioners into trouble, to give twist to the fight which took place between them over a dispute of water. The explanation of delay due to non-availability of lambardar falls to the ground when it comes on record that Feroze Din Lambardar was the person who had reached the place of occurrence at the time when sheep were being stolen.
5. With this above analysis only irresistible conclusion which one is apt to draw would be that defence version looks more impressive than the prosecution story, which is full of flaws and is incredible.
6. The result is that I set aside the conviction and sentence of the petitioners and acquit them.
Since they are on bail they are discharged of their bail bonds.