1994 P Cr (PLP)

Date of hearing: 6th February, 1991. The present Criminal Revision petition is directed against the order, dated 29-1-1990, passed by the Additional Sessions Judge, Sheikhupura, whereby the bail application of the petitioner was dismissed and his conviction and sentence by the Magistrate 1st Class, Nankana Sahib, vide order dated 27-4-1987 was maintained; by the same order, the co-accused of the petitioner, namely, Buniad Hussain was acquitted.

2. The Magistrate 1st Class, Nankana Sahib, District Sheikhupura had tried the petitioner and his co-accused Buniad Hussain under section 411, P.P.C. and convicted and sentenced them to 6 months' R.I., with the direction that the recovered cow alongwith its two calves be returned to the complainant.

3. The brief facts of the case are that the complainant, P.W.1 Mokha had got a case registered vide F.I.R. No.205/84 at Police Station Sayedwala, District Sheikhupura under section 379/411, P.P.C. on 10-10-1984. According to the F.I.R., Exh.PA., the complainant Mokha, P.W.1, claimed that his pregnant cow was stolen some four years ago and that he was informed by persons named therein that it was at present in possession of Shukur Shah i.e. the present petitioner. It is further stated in the F.I.R. that thereafter the complainant and the petitioner herin referred the dispute in respect of the cow in question to a Panchayat and that the said Panchayat held that the cow belonged to the complainant, but the said Shukur Shah refused to accept the arbitration decision of the said Panchayat, and as a result thereof, it is stated therein, that the complainant submitted application to the senior police officers. Whereupon, the Superintendent of Police marked the said application to the A.S.P., Headquarters who after having determined the decision of the Panchayat, ordered the local police to act in accordance with law in respect of his complaint.

4. Thereafter, the police completed the challan and filed in the Court of Magistrate 1st Class, Nankana Sahib. The trial Court framed the charge, adduced the evidence, heard the parties and convicted the petitioner alongwith his co-accused Buniad Hussain under section 411, P.P.C. only and sentenced them to 6 months' R.I., with a direction that the cow alongwith calf may be handed over to the complainant P.W.1, Mokha. As stated above, an appeal was filed against the said conviction and sentence, which was partly allowed and the co-accused was acquitted whereas the petitioner's sentence was maintained by the learned Additional Sessions Judge, Sheikhupura vide his order dated 29-1-1990. The direction for handing over the cow with his calf to the complainant, P.W.1 was maintained.

5. To prove its case the prosecution produced seven witnesses in all. P.W.1 is Mokha, the complainant on whose application, F.I.R., Exh.PA. was registered. P.W.2 Saleh Muhammad deposed to the effect that a cow was stolen from the house of the complainant. P.W3, Mumtaz Hussain and P.WS Muhammad Ishaque, as the members of the Panchayat testified to the decision of Panchayat, Exh.P.C. P.W.4, Muhammad Yousaf was the witness of the recovery who had attested the Exh.P.B. in respect of the cow. P.W.6, Bashir Ahmed had identified the cow, whereas P.W.7 Nazir Ahmed, S.I. was the Investigation Officer. Two witnesses were produced in defence. D.W.1, Jaffer Hussain testified to the effect that the petitioner had purchased cow in question from him on 19-3-1977. D.W.2, Beshir Ahmed deposed to the effect that the said transaction of the cow had taken place in his presence.

6. The learned counsel for the petitioner has assailed the legality and propriety of the conviction and sentence of the petitioner and the subsequent dismissal of his appeal against the same on the following grounds:-- (i)???????? That the prosecution version as disclosed in the F.I.R., Exh.PA. was not an offence under section 411, P.P.C. and further, pointed out that in fact it disclosed a dispute of civil nature in respect of the cow in question, as the petitioner had claimed that the said animal was in his possession for the last many years as a bona fide purchaser, having bought it in 19-3-1977, from Jaffer Hussain (D.W.1). Further, pointed out ? ta;a Joe said D.W.1 had supported the version of the petitioner in this respect. (ii)??????? Further, contended that no adverse presumption can be drawn against the petitioner because of his possession of the cow in question as an inordinate lapse of 4 years had taken place since the alleged theft. In this respect pointed out that it has been held by this Honourable Court and the Supreme Court that after a lapse of such a long period no legitimate presumption can be drawn that the animal recovered can be identified beyond the shadow of doubt to be stolen property. In this respect strength is sought from Narain Singh v. Emperor A I R 1928 Lah.

687. In this case recovery was effected after 15 months, and the conviction and sentence under section 411, I.P.C. (now P.P.C.) was set aside. Further, relied upon Emperor v. Doodnathsing A I R 1946 Sindh

153. Herein it was laid down that lapse of time and the recovery of the stolen property was a relevant factor in determining the presumption, adverse or otherwise against a person, and the conviction under section 411 in respect of a belatedly recovered bicycle was set aside. Further, strength is sought by placing reliance upon Mukhtar Ali v. The State P L D 1971 SC 725, in this respect.

7. We have given our anxious consideration to the contentions raised by the learned counsel for the petitioner, and peruked the record of the case minutely with the assistance of-the learned counsel for the parties. We have taken notice of the fact that the Exh.P.C., the decision of the so-called Panchayat and the testimony of P.W.3, Mumtaz Hussain and P.W.5, Muhammad Ishaque in support thereof, was inadmissible in evidence as the same was based on hearsay; and by taking cognizance of the constitution of the Panchayat and its decision, the learned trial Court had abdicated its jurisdiction to determine the guilt or innocence to an agency without jurisdiction and legal competence, therefore, the said Exh.P.C., and the evidence in support thereof by the said P.W3 and P.W.5 had badly prejudiced the case of the petitioner. Furthermore, because of this illegality the entire trial stands vitiated and the conviction and the sentence of the petitioner is liable to be set aside; and as the animal in question had been taken into custody under section 550, Cr.P.C., without there being a complaint to the effect that it was a stolen property, as the F.I.R. was lodged on 10-10-1989, whereas the animal in question was taken into custody a month prior to the lodging of the complaint, therefore, the whole prosecution version has been built up upon a presumption of recovery of stolen property without there being any legal justification for the same, and, in fact, there was no recovery in pursuance to the registration of the case itself.

8. Pursuant to the above discussion, the present criminal revision petition' is hereby allowed and the impugned judgment and sentence is hereby set aside. IS The petitioner is on bail, his bail bonds stand discharged accordingly. N.H.Q./S-363/L????????????????????????????????????????????????????????????????????? Revision petition allowed.