N OO R A Versus THE STATE Allah Ditta Baloch , Arshad Khan

This revision petition is directed against the order, dated 10-11-1987 of Sessions Judge, Jhang, whereby learned Sessions Judge, dismissed the appeal filed by the petitioner against the order, dated 26-9-1987 passed by Magistrate 1st Class, Jhang whereof the learned Magistrate convicted the petitioner under section 411, P.P.C. and sentenced him to one year's R.I.

2. The prosecution case is that two oxen of complainant (P.W.1) were stolen during night. The complainant and others chased the culprit following footprints, which, however, could not lead them beyond Madani Jut. Suspicion was expressed against the petitioner. Complainant (P.W.1) accompanied by P.W.2 Maani and Shera (P.w,3) approached the petitioner. He confessed having stolen oxen and promised to return tile same within 10/20 days. In compliance with the promise, he returned the oxen. Case was registered at the police station after the oxen were returned.

3. Statements of four P.Ws. were recorded at the trial.

4. The petitioner during his statement under section 342, Cr.P.C. denied the prosecution case and pleaded innocence.

5. Shera (P.W.3) did not support the prosecution case. In cross-examination he stated that he had not gone with Maani to the petitioner. He also denied the suggestion that the petitioner had confessed theft and returned the oxen. The statement of the A.S.I. (P.W.4) is of a formal nature. The remaining two witnesses i.e. complainant (P.W.1) and Maani (P.W.2) have contradicted each other, in that according to P.W. 1 it was Noora petitioner who had confessed before them of having stolen the oxen and of having promised to return the same, while according to P,W. it was brother of Noora petitioner who had met them and had told them that he will inquire from his brother and will try to have the oxen returned in case they are with him.

6. Since the only two witnesses have contradicted each other categorically, it cannot be granted that the appreciation of the evidence by the learned lower Courts was in accordance with law.

7. Both the lower Courts have failed to note a material point. In the circumstances, this petition is allowed and the order, dated 26-9-1987 passed by the learned Magistrate is set aside. The petitioner is acquitted. He shall be released forthwith, if not required for any other case.

S. A./ N-104/ L Revision accepted.