' Kali Shama and Saidu to be referred to as petitioners hereinafter were alongwith Nazar alias Naji, charged before Ch. Muhammad Ashraf Cheema, Magistrate Section 30, Sahiwal for the offence under section 382, P. P. C. On the allegation that the petitioners and their co-accused named above had on the night intervening 13/14 of June 1974 snatched from Muhammad Siddique a radio set of Sony Maker, a wrist watch (Camy) and Rs, 300. The complainant overpowered Shama petitioner and raised alarm which attracted several persons to the site including Muhammad Sharif and Muhammad Ibrahim (P. Ws. 2 and 3). Shama was, however, rescued by the remaining accused and they all fled away leaving behind the radio set of the complainant. Report of the incident was lodged by Muhammad Siddique at Police Station, Harrappa, six miles distant from the site of occurrence, on 16th of June, 1974. The accused were placed under arrest by the Police and a large number of articles were recovered at the instance of Saidu and Kali (P. D. And P. E.). Eight witnesses were called by the prosecution for proof of charge against the accused which they all repudiated as false. No evidence was led in defence. Mohammad Siddique, Muhammad Sharif, and Ibrahim, the first three witnesses on the prosecution side, deposed to the occurrence. Ghulam Farid, Ch. Muhammad Ali Sub-Inspector and Muhammad Anwar (P. Ws. 4, 5 and 7) are witnesses of recovery.
2. Learned trial Magistrate has held that Muhammad Sharif and Muhammad Ibrahim (P. Ws. 2/3) had fully corroborated statement of Muhammad Siddique. Nothing tangible could be elicited in the cross-examination of the witnesses to justify doubts against their evidence. The appeal filed by the accused was rejected by Mian Muhammad Nasyaz, learned Additional Sessions Judge, Sahiwal.
The reasons which had weighed with the learned Magistrate in upholding the charge against the accused were owned by learned Additional Sessions Judge in the concluding para of the judgment last and stated in a slightly different language.
3. It may be stated here that the recoveries alleged against Kali and Saidu are inconsequential as they do not relate to the instant case.
4. Learned counsel for the petitioners contended that inordinate delay in the report, which is ordinarily fatal to the prosecution case and should arouse anxiety and suspicions in judicial conscience was just blinked over by learned trial Magistrate as well as learned Sessions Judge. The case had received a scanty attention of Courts below. Charge against the accused could not be upheld summarily for the reason that the complainant and the remaining two eye-witnesses in the case had apparently no motive to perjure themselves against the accused. The evidence of witnesses could not be accepted blindly merely for the reasons that the accused had failed to establish or explain that the witnesses had reasons to make false statements against him. The accused cannot be held guilty unless it is found positively that evidence of witnesses against him rings true and was capable of carrying conviction in a reasonable mind. The contentions have a force in them. Delay of about two days in the First Information Report which was not explained in the least by prosecution is press sufficient to justify grave doubts against genuineness of allegation against the accused. It is not understandable why the incident was not reported to the police although the accused had been identified by the complainant and the remaining two witnesses in the case. Delay in the report fully justifies the argument that case had been cooked up against the petitioner after mature deliberations etc. Merit of judgment of two Courts below is evident from the fact that learned State Counsel finds it hard to support them. Revision accepted. Convictions and sentences of the petitioners are set aside. Nazar alias Naji has not joined the petitioners in this petition. I set aside his conviction and sentence in exercise of revisional powers under section 439, Criminal Procedure Code. All the four accused in the case shall be released forthwith if not detained on any other count.