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Criminal Revision No. 452 of 1973, decided on 30th October, 1982.

----S. 411-Evidence, evaluation of-Stolen bullock allegedly seized from petitioner during nakabani but presence of police officer, making such seizure at time petitioner allegedly captured alongwith stolen bullock, statements of witnesses recorded and recovery memo. prepared by him, all appearing doubtful-Possibility that petitioner was involved at instance of his adversary and police so involved him to show their karguzari, exists-Police officer alone, held, could not be believed for recovery of alleged stolen bullock from petitioner, in circumstances ----Conviction and sentence set aside.

Mahmoodul Hassan for Petitioner.

Nemo for the State.

Date of hearing : 30th October, 1982.1

Allah Ditta son of khan was convicted under section 411, P. P. C. and was sentenced to undergo rigorous imprisonment for one and a half years by the learned Magistrate First Class at Jauharabad, on 15-7-1972. His appeal was dismissed by the learned Additional Sessions Judge, Sargodha, on 23-4-1973. This is a revision of the convict against those orders.

2. On the night between 30th and 31st of July, 1971 Rana Ghulam Muhammad, S. H. O. (P. W. 5) with five foot constables and two witnesses from the public arranged Nakabandi at the bridge of Dhak Minor on the metalled road leading to Jauharabad. At about 4-00 a. m. the Nakabandi Party saw Allah Ditta petitioner with one bullock approaching the bridge. Petitioner and the bullock were seized and owner of the bullock was called on whose statement recorded at the spot formal F. I. R. was registered at Police Station Katha Saghral at about 8-30 a. m. on 31-7-1971.

3. Ghauns Muhammad complainant (P. W.) made a statement at the spot before the S. H: O Rana Ghulam Muhammad (P. W. 5) that he tied the animals in his Haveli and slept there to keep guard. When he woke up on Namazwela he saw that one of his bullocks was missing. He gave description of the missing bullock in his statement. The complainant was making arrangement for leading a Wahar party when he received information through a constable that one bullock had been seized by the police in Nakabandi at the bridge upon which the complainant reached the bridge and identified the bullock to belong to him. His statement (Exh. P. B.) was sent to the police station where formal F. I. R. was registered. The recovery memo. of bullock (Exh. P. A.) prepared at the spot was witnessed by Muhammad Afzal (P. W. I) and Ghulam Muhammad (P. W. 2) apart from Rana Ghulam Muhammad, S. H. O. (P. W. 5). After completion of investigation police challaned petitioner in Court.

4. At the trial prosecution examined six witnesses in all who supported the prosecution case. The accused-petitioner denied the allegations and, pleaded that he had been falsely implicated on account of enmity. The trial Court convicted the petitioner and his appeal was dismissed by the lower Appellate Court.

5. I have been taken through the evidence in this case by the learned counsel for the petitioner. There were three witnesses in all of the recovery memo. of bullock including the. Police Sub-Inspector. Rana Ghulam Muhammad, S. H. O. (P. W. 5) deposed that he was present at the spot and recorded statement (Exh. P. B.) of Ghauns Muhammad complainant on which formal F. I. R. was registered. He also deposed that the memo. of recovery of bullock (Exh. P. A.) was prepared by him at the spot like statement of the complainant (Exh. P. B.). The recovery memo. in this case was witnessed by Ghulam Muhammad (P. W. 2) who in his cross-examination deposed that it was Muhammad Hayat constable who wrote down the recovery memo. (Exh. P. A.) of bullock and the witness signed the memo. at the spot. He maintained that he was a member of the Nakabandi Party. It does not appear in his statement that any Police Officer was present at the spot at the time recovery memo. was prepared there. Another witness of the recovery of bullock is Muhammad Afzal (P. W. 1), a Chowkidar of the village. He was also a member of Nakabandi Party. He has not been believed by the learned Additional Sessions Judge who heard the appeal. He deposed in his cross-examination that at the time of recovery of bullock nobody was present except Ghulam Muhammad (P. W. 2). From the evidence it is doubtful if the S. H. O. Rana Ghulam Muhammad (P. W. 5) was present at the spot at the time petitioner with one bullock was captured, that statement of Ghauns Muhammad (P. W.) was recorded at the bridge and that recovery memo. of bullock was written and signed by the prosecution witnesses at the spot. In the present circumstances the Police Officer alone cannot be believed for the recovery of stolen property from the petitioner. Even theft of the bullock by the petitioner is doubtful on the evidence available on record. It seems that police falsely implicated the petitioner at the instance of Muhammad Afzal (P. W.) who was inimical towards the petitioner and also because the police wanted to show some Karguzari, the learned trial Magistrate and the learned Additional Sessions Judge did not properly consider the infirmities in the testimony of prosecution witnesses. The prosecution has not proved its case against the petitioner beyond reasonable doubt.

6. For the foregoing reasons the revision is accepted and the conviction and sentence of the petitioner are set aside. Petitioner's bail bonds are discharged.

Revision allowed.

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