TUFAIL Versus THE STATE S.M. Idrees , Nemo
Tufail son of Mubarik Ali, Akbar son of Hakim Ali and Falak Sher alias Shera ‑ son of Ghulam Muhammad were tried by Mr. Khuda Bakhsh, Magistrate Ist Class, Lyallpur (now Faisalabad) under section 411, P.P.C. who convicted them of the said charge and sentenced them to R.I. for 1 years each vide judgment dated 13‑7‑1972. They challenged their conviction and sentence in the Sessions Court but their appeal was dismissed by the learned Additional Sessions Judge on 12‑3‑1973. They have come up in revision to this Court to question the correctness and propriety of the aforesaid orders.
2. The brief facts of the prosecution case are that on the night between 23/24‑10‑1970 two buffaloes of Nizam Din complainant were stolen. On the following morning he organized a track party consisting of himself, Fazal Muhammad, Bashir and others. They followed the tracks up to Jahangir Mor where they found the petitioner driving away the buffaloes. They apprehended Tufail and Akbar petitioners with the stolen buffaloes but Falak Sher alias Shera ran away and could not be captured. Nizam Din complainant reported the matter to Syed Ahmad Shah Sub‑inspector on the same day at 4.00 p.m. in the area of Chak No.257‑RB vide his statement Exh.P.A. on the basis of which formal F.I.R. Exh. P.A./1 was recorded at police station Dijkot at 4.30 p.m. The buffaloes were taken into possession vide memo Exh.P.B.
3. At the trial the petitioner pleaded not guilty to the charge and stated that they had been. falsely implicated due to enmity. They examined two witnesses in defence who stated that Akbar and Tufail were taken into custody from the village without assigning any reason and that nothing was recovered from them.
4. Learned counsel .for the petitioners contends that there is absolutely no evidence on the record to connect the petitioners with the offence with which they have been charged, therefore, their conviction and sentence is unsustainable.
4. I have gone through the record with the help of the learned counsel for the petitioners. At the trial Nizam Din and Muhammad Ashraf P.Ws. supported the recovery of the stolen buffaloes from the petitioners. At this stage it need be mentioned that the memo of recovery of the stolen buffaloes was attested by Fazal Muhammad and Hidayat. Fazal Muhammad was given up as having been won over and Hidayat P.W. did not support the prosecution. He was cross‑examined by the P.S.I. with the permission of the Court. It is thus a case in which one attesting witness of the recovery memo was given up and the other did not support the prosecution. Nizam Din is the owner of the buffaloes. In examination‑in‑chief he stated that the accused were apprehended near Jahangir Mor. In cross‑examination he stated that they were detected when they were at a distance of one furlong from Jahangir Mor. As against him, Muhammad Ashraf P.W. gave out that they were apprehended at a distance of one and a half miles from Jahangir Mor while they were going towards Samundari. Nizam Din could not tell the names of Tufail and Akbar even from the witness‑box although he had named them in the F.I.R. From the evidence it also appears that a young one of the buffalo was also stolen, but it was not recovered. In view of above infirmities in the prosecution case, it will be unsafe to maintain the conviction of the petitioners.
For the foregoing reasons this revision petition is allowed, the conviction and sentence of the petitioner is set aside and they are acquitted of the charge. They are on bail. They shall be discharged from their bail bonds.
?/T‑33/L Revision allowed.