1985 P Cr (PLP)

Nemo for the State. Date of hearing: 29th May, 1982. This revision petition is directed against the order of Malik Shahbaz Khan, Additional Sessions Judge, Multan, dated 20‑4‑1982 passed in appeal filed against the order of Magistrate Ist Class, Kabirwala, dated 2‑2‑1982, whereby the petitioners were convicted under section 411, P.P.C. and sentenced to one year's R.I. each. The petition was admitted to regular hearing on 5‑5‑1982 on the limited question of sentence being excessive.

2. Facts giving rise to this case are that on 10‑6‑1979 three lambs and one she‑goat belonging to Nazir Ahmad, complainant (P.W.1) were found missing from his cattle‑pen. A track‑party was arranged and tracks of two culprits were traced by Muhammad Bakhsh, tracker (P.W.5). According to the opinion of this witness, the tracks were suspected to be those of Bashir Ahmad and Muhammad Bakhsh, petitioners. The petitioners were contacted by Nazir Ahmad, complainant (P.W.1), Khurshid (P.W.2) and Ghulam Hassan (P.W.3) before whom the petitioners admitted that they had stolen lambs and one she‑goat and promised to return the animals after few days. Ultimately, Bashir Ahmad, petitioner, returned two lambs while Muhammad Bakhsh alias Mamma, petitioner, returned a lamb and a she‑goat to the complainant in the presence of Khurshid and Ghulam Hassan P.Ws. It is alleged that some 8 days thereafter the complainant made up his mind to report the matter to the police. He, therefore, produced the aforesaid 4 heads of cattle before Hayat Khan A. S. I. (P. W. 5) who took them into his possession vide memos. Exhs. P.B. and P.C. He also recorded the statement of Nazir Ahmad, complainant as Exh. P.A. on 18‑6‑1979. After usual investigation of the case, he challaned the petitioners to Court.

3. The learned trial Court framed a charge under section 411, P.P.C. against the petitioners and examined 5 P.Ws. In support of the prosecution case. The petitioners when examined under section 342, Cr.P.C. denied the allegations in toto and declined to produce any defence evidence. The learned Magistrate believing the prosecution story convicted the petitioners as has been mentioned in paragraph 1 of this judgment. The appeal of the petitioners also failed before the Additional Sessions Judge, hence this petition.

4. I have heard the learned counsel for the petitioners and also gone through the record with his assistance but none has appeared on behalf of the State.

5. Learned counsel has laid emphasis on the fact that the case is false and had been lodged with a delay of 8 days and that too after the alleged recovery of stolen cattle from the petitioners without adequate explanation for the delay. He further states that the complainant did not state at the trial that when the petitioners had returned these cattle to him the other witnesses, namely, Khurshid and Ghulam Hassain were present and, therefore, the factum of the stolen cattle having been returned by the petitioners to the complainant becomes doubtful.

6. I have noticed that the trial suffered an illegality i.e. the recovered cattle were not produced in Court and shown to the witnesses in order to fix the identity of the "stolen property". To my mind, due to this legal lacuna, the trial is vitiated and, therefore, conviction of A the petitioners cannot be sustained.

7. No doubt that earlier I had admitted this petition for regular hearing only on the point of sentence but after perusing the record, the aforementioned illegality came to my notice which has struck at the very roots of the trial. In these circumstances, therefore, I allow this petition and set aside the conviction and sentence of the petitioners. The result is that the petitioners are acquitted. They are directed to be released forthwith if not wanted in any other case. S. G. D. Acquittal ordered.