1984 P Cr (PLP)

Nemo for the State. Date of hearing: 5th July, 1982. Both the petitioners were convicted by Ch. Ghulam Sarwar, Magist rate First Class, Multan, under section 411, P. P. C. and sentenced to two years' R. I. They filed an appeal against their conviction and sentence before the Additional Sessions Judge who upheld the conviction and sen tence and dismissed the appeal vide his order, dated 24-4-1982.

2. The facts giving rise to this case are that in the year 1977, a new railway track was being laid out in between Railway Stations, Multan Cantt and Sher Shah. For completing this project the necessary materials was stored on the site. Amir Bakhsh P. W. 2 lodged a complaint through written application Exh. P.F. reported at Police Station Cantt that 150 fish plates, 400 iron tiles, 200 iron keys and 112 slippers had been stolen away from the i.e, between Miles Nos. 52 and

53. On the basis of this application formal F. I. R. Exh. P.F./1 was drawn up by S. I. Farrakh Lashari P. W. 1 who also investigated the case. Muhammad Haq, petitioner, was arrested on 27-6-1977 and Muhammad Sharif, petitioner, was arrested on 1-8-1977. The same day, during the investiga tion, Muhammad Ishaq, petitioner, led to the recovery of fish plates and 400 bolts which were taken into possession vide memo. Exh. P.B. Likewise Muhammad Sharif, petitioner on 1-8-1977 led to the recovery of 200 iron keys and 112 slippers which wore taken into possession vide memo. Exh P.C. These recoveries were witnessed by Muhammad Ali P. W. 3 and Muhammad Ibrahim P. W.

4. After usual investigation the challan was put in Court.

3. At the trial the prosecution examined four witnesses, namely, S. I. Farrakh Lashari P. W. 1, Amir Bakhsh P. W. 2 (C. W. 2), Muhammad Ali Sub-Engineer (C. W. 1), Muhammad Ali P. W. 3 and Muhammad Ibrahim P. W.

4. All these witnesses supported the prosecution case. 4 The petitioners when examined under section 342, Cr. P. C. denied the allegations levelled against them. They further deposed that police had involved them falsely in the case. However, Muhammad Sharif, petitioner, added that he was the bona fide purchaser of the property recovered from his possession and also produced Photostats of receipts Exhs. D.A. to D.E. However, no defence witness was examined by either of the petitioners.

5. I have heard the learned counsel for the petitioners and also for the State.

6. It has been argued that identity of the "stolen" property alleged to have been recovered front tire possession of the petitioners has not been established in Court by producing the same at the time when the recovery witnesses were being examined. Learned counsel, therefore, emphasized that because of this flaw the very factum of the recovery of the stolen property from the possession of the petitioners has been rendered doubtful.

7. I have examined this argument with care. The objection appears to be fatal to the case against Muhammad Ishaq, petitioner who had denied the "recovery" from his possession but at the same time this objection does not hold good against Muhammad Sharif, petitioner, because an his statement recorded under section 342, Cr. P. C. he had admitted the recovery of stolen articles from him but claimed to be a bona fide purchaser of those articles. To substantiate his claim, he produced photostat copies of certain receipts marked as Exhs. D.A. to D.E. purported to hale been issued on proformas hearing words "P. W. R." Their receipts were not accepted by the two Courts below, of course for cogent reasons, e.g., the photostat copies were inadmissible and also the proof of their excursion was not produced. In this way the effect of "non-production" of the "stolen property" in Court appears to have been neutralised as far as the case of Muhammad Sharif, petitioner, is concerned. In these circumstances, the onus to prove himself as a bona fide purchaser which weighed very heavily C in the case not successfully discharged by him. It may be mentioned that Muhammad Sharif failed to suggest to the two railway officials who appeared as P. W. 2 and C. W. 1 by showing those receipts that they were issued by the Railway Department.

8. For the foregoing reasons, I hold that conviction of Muhammad Ishaq is not sustainable. He, therefore, is acquitted from the charge under p section 4, P.P.C. As for Muhammad Sharif, petitioner, is concerned his conviction does not suffer from any legal lacuna which is, consequently, maintained. However, keeping in view the facts and circumstances of the case, I feel that the ends of justice would be fairly met if his sentence is E reduced to one year's R. I. He is also allowed the benefit of section 382-B, Cr. P. C. M. Y. H. Order accordingly.