1997 P Cr (PLP)

Dhani Bux for A.A.-G. for the State This is a criminal revision application against the judgment, dated 11-10-1992 passed by learned Sessions Judge, Nawabshah in Criminal Appeal No.3 of 1992, maintaining the conviction and sentence awarded by learned Joint Civil Judge and F.C.M., Nawabshah in Case No.235/91, State v. Sardar Muhammad under section 411, P.P.C. to undergo R.I. for 18 months.

2. Briefly stated the facts of the prosecution case, as per F.I.R. lodged by one Sajjad Akhtar at Police Station Town, Nawabshah on 13-2-1991, are that his uncle Shaukat Hussain owns a Motor-cycle No.NH-4599, Honda CD-70 of red colour, Model 1986, which he used to ply. On 22-1-1991, he went on said motor-cycle alongwith his brother Shahid Akhtar to leave him at Railway Station Nawabshah. In front of Booking Office he parked his motor-cycle and locked it and went to plat-form. After a short time when he came back, he found the motor-cycle missing and was stolen away by some one. He narraed the incident to Aslam Qureshi and remained in search of the same at his own level and when failed in his efforts, he lodged the report with police.

3. That on 19-2-1991 when police party consisting of A.S.I.P. Muhammad Ismail, H.C. Noor Alam, P.C. Mustafa Hussain, P.C. Ali Nawaz and P.C. Rano Khan left Police Station Town Nawabshah in connection with investigation of Crime No.9 of 1991 under section 379, P.P.C. and when reached near Naseer Graveyard they found a person coming on a motor-cycle without any number plate, who was stopped and the papers of the motor-cycle were demanded from him, who failed to produce the same, as such he was suspected, and therefore, he was arrested and the motor-cycle was also taken in police custody under section 550, Cr.P.C. under a Mashirnama prepared at spot in presence of Mashirs H.C. Noor Alam and P.C. Mustafa Hussain. On interrogation the accused disclosed his same as Sardar Ali. The accused and property were brought at police station. The complainant identified his motor cycle before Mukhtiarkar as such on 24-2-1991 the accused was arrested in this crime under a separate Mashirnama; and after usual investigation he was sent up to stand his trial under section 411, P.P.C. On 18-6-1991 a formal charge was framed under section 379/411, P.P.C. by the learned Joint Civil Judge and F.C M., Nawabshah, where prosecution examined P.Ws. Sajid Akhtar, Shahid Akhtar, H.C. Noor Alam, S.-I.P. Sajjad Hussain and A.S.-I.P. Muhammad Ismail. The statement of accused was recorded under section 342, Cr.P.C. and he neither examined himself on oath in his defence nor lead any evidence in defence. '

4. That vide judgment, dated 15-1-1992, the learned Joint Civil Judge and F.C.M., Nawabshah convicted and sentenced the accused (applicant) to undergo R.I. for 18 months, against which an appeal was preferred in Sessions Court which was heard arid dismissed by learned Sessions Judge, Nawabshah, modifying to the extent that the benefit of section 382-B, Cr.P.C. was extended to him. Hence this revision application.

5. Mr. Abdul Hai Memon, the learned Advocate for the applicant assailed the judgments of both the learned lower Courts. He submitted that admittedly the place of Wardat is at Railway Station i.e. within the limits of Railway Police Station, Nawabshah -but with mala fide intention, the F.1.R. was lodged at Police Station Town, Nawabshah and that too, after about 22 days, which cast reasonable doubts in the theft story. He pointed out that as per S.-I.P., Sajjad Hussain, on 24-2-1991 the motor-cycle was identified by the complainant before Assistant Mukhtiarkar, Nawabshah; which as per A.S..I.P. Muhammad Ismail the complainant identified his motor-cycle at Police Station Town, Nawabshah on 23-2-1991. he further argued that in the statement of accused recorded under section 342, Cr.P.C., the evidence regarding possession of and its recovery from him in presence of P.Ws. H.C. Noor Alam and P.C. Mustafa Hussain, is not put to him, as such the said evidence cannot be used against him. He also argued that the witnesses of the alleged recovery are both police officials and it will not be safe to rely upon their evidence, when private persons was available there and were not made witnesses to the alleged recovery. He also argued that the prosecution has failed to bring any evidence on record to show that the accused was knowing and having reason to believe that the motor-cycle was a stolen one. In the end he submitted that the prosecution has miserably failed to prove the charge under section 411, P.P.C. against the accused/applicant, beyond any reasonable doubt, as such he is entitled to the benefit of doubt and deserves acquittal. In support of his contentions he relied upon (1) 1992 PCr.LJ 2530, (2) 1990 MID 186, (3) 1991 PCr.LJ 1217, (4) 1993 PCr.LJ 142, (5) 1994 PCr.LJ 938 and (6) 1981 PCr.LJ 1238.

6. Mr. Dhani Bux learned Advocate for A.A.-G. for State argued that the criminal revision has got a little scope and only illegality or misreading of evidence can only be considered as there is concurrent findings of the two Courts below against the accused. He supported the conviction and prayed dismissal of the revision application as according to him neither any illegality has been committed nor any evidence is misread by the trial as well as appellate Court.

7. I have examined the record and considered the valuable arguments of both the learned Advocates. I am of the opinion that since the evidence regarding recovery of the alleged stolen property from the accused has not been put to him in his statement recorded under section 342, Cr.P.C., the same can neither be used against him nor he can be convicted on the basis of the said evidence. I am also of the considered view that the prosecution has failed to establish the essential ingredients of the offence that the motor-cycle recovered from the accused was a stolen one and that he was in receipt of or in possession of the said property dishonestly knowing the same to be stolen property. No doubt, the evidence of a Police Officer is as good as that of any other witness; but when it is established that though private persons are available at the time of alleged recovery of stolen property from an accused person but not made Mashirs to witness the recovery, then the evidence of such Police Officer should be relied upon with great caution. In pursuance to what has been stated above, the present criminal revision application is hereby allowed and the judgments impugned herein are set aside. Resultantly, the applicant stands acquitted of the offence charged. He is on bail his bail bonds stand discharged, accordingly. H.B.T./S-1150/K Revision application allowed.