1972 PLP 28 (SCMR)

SAJJAD AJ;MAD, J.‑Ghulam Muhammad, the appellant herein, was tried along with his father, Ghulam Qadir, for an offence under section 380, P. P. C. for having allegedly stolen a trunk containing cash, ornaments and clothing from the house of Mst. Iqbal Regum, a singing girl, on the night between the 14th and 15th of November 1964. Ghulam Qadir was acquitted but the appellant was convicted under section 411, P. P. C. and sentenced to 2 years' R. I. His appeal to the Sessions Judge and a revision in the High Court were dismissed. Leave was granted to him by this Court on the 16th October 1969, to consider the contention that the liability for the retention of the stolen property, which had allegedly been recovered from the house jointly occupied by the appellant and his father, could not be exclusively fixed on him. The recovery memo. of the stolen property, Exh. P. B., which was prepared by the investigat ing officer. S. I. Muhammad Aslam, P. W. 6, and witnessed by two recovery witnesses, P. Ws. Iftikhar Ahmad and Muhammad Hussain, and the complainant, Mst. Iqbal Begum, merely recites that the appellant gave the information that he would be able to show where the stolen property was. All the recovery witnesses mentioned above stated at the trial that the appellant had also pointed out to the stolen trunk, which was lying underneath a charpoy from where it was recovered. The learned counsel for the appellant has referred us to the evidence of P. W. 2, Mst. Anwar, sister of the complainant Mst. Iqbal Begum, who stated that both of them were sent for by the police at 7 or 8 o'clock in the morning to the house of Ghulam Qadir, accused, and found that the stolen trunk was already there. She further stated that the trunk had been recovered when she and her sister had reached the house of Ghulam Qadir, accused. This statement contradicts Mst. Iqbal Begum, according to whom the A. S. I. Barkat Ali (P. W. 3) had taken Ghulam Qadir, the acquitted accused, to the police station at 4 or 5 in the morning, and the A. S. I. recovered the box from his house. The other recovery witnesses, Iftikhar Ahmad and Muhammad Hussain, P. Ws. 4 and 5 respectively, stated that they witnessed the recovery after they had been informed of the theft by the complainant, which is belied by the Sub‑Inspector, P. W. Muhammad Aslam, who stated that both of them were sent for through a constable. The learned counsel has read to us the state ments of Muhammad Hussain and Iftikhar Ahmad to point out that their statements do not induce confidence on account of their antecedents and connection with the complainant party. On examining the evidence, we feel that the recovery of the stolen trunk from the house of the appellant and his father, as alleged by the prosecution, is not satisfactorily established. But even if we were to believe the recovery witnesses to hold that the trunk Was recovered from the house jointly occupied by the appellant and his father, it cannot be said conclusively from the evidence on record that the possession of stolen trunk was exclu sively that of the appellant. The occupation of the house being joint between him and his father, there is nothing to show that the trunk was either received or retained exclusively by the appellant and not by his father, who was the house‑master and the head of the family. The learned State counsel tried to argue that the recovery was made at the instance of the appellant and he must, therefore, be found to be exclusively responsible for its guilty possession, has not impressed us. In the first place, there is no satisfactory evidence of such pointation, as alleged by the witnesses, and, secondly, it would not lead to the safe conclusion that the stolen trunk recovered from the house was being retained exclusively by the appellant. As the guilt of the appellant is clearly in doubt, particularly when his father, the co‑accused, has been acquitted, we are unable to uphold his conviction. The result is that this appeal is accept ed and the appellant is acquitted. He was granted bail by this Court. His bail bonds are discharged. Appeal accepted.