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Criminal Revision No. 248 of 1984, decided on 10th July, 1984.

(a) Penal Code (XLV of 1860)--

---S. 411--Stolen property--Stolen cow neither produced in- Court nor identified by any of witnesses in presence of accused--Accused given benefit of doubt and acquitted.

(b) Penal Code (XLV of 1860)--

---S. 411--Stolen property--Where stolen property forming basis of offence, factum of recovery, held, has to be proved beyond every reasonable doubt--Stolen property not brought before Court and identified by witnesses as stolen property---Theft of property, held further, could not be reasonably said to have been proved. [Recovery].

Budho v: The State 1973 P Cr. L J 395; Khairuddin v. The State 1974 P Cr. L J 219 and Muhammad Sharif v. The State 1982

PCr. L J1067 rel.

Qazi Abdul Hayee for Petitioner.

Muhammad Fazal for A.-G. for the State.

Date of hearing: 25th June, 1984.

This is a criminal revision filed by Muhammad Iqbal, petitioner against the judgment of the learned Sessions Judge, Kasur, dated 13-5-1984, dismissing the appeal. Earlier, a First Class Magistrate of Chunian had convicted the petitioner under section 411, P.P.C. and sentenced him to undergo one year's rigorous imprisonment.

2. The prosecution case in brief it; that on 20-4-1982, Zulfiqar Ali H. C. P. W.3 alongwith Nawab Din P, W.1, Farzand Ali (given up P.W.) and two other police constables were present at the Railway Gate, Wan, Radha Ram, on routine patrol duty, when Muhammad Iqbal, petitions, was apprehended alongwith a stolen cow. 'the petitioner could not satisfy the Head Constable about the ownership of the cow, whereupon he was apprehended and the cow was taken into possession vide memo. Exh. P.A. under section 550, Cr.P.C. Before the cow could be taken to the police station Ilyas P.41' I the owner, appeared before Zulfiqar Ali, H.C. P.W.3 and identified the stolen. cow as t s property he informed the Head Constable that on the previous night he had thereof his cattle in his Haveli and on the following morning had four1d his cow missing, whereupon he had formed a track party and following the foot prints of the cow had reached the Railway Crossing, Wan Radha Ram, where tie at-least had found it. He identified the cow as his property and lodged complaint Exh. P.B. on 20-4-1982 at 10-29 a.m.

3. The evidence has been read.

4. I have heard the arguments of the learned counsel for the petitioner and the State. Strangely, neither Muhammad Ilyas P.W.2, the owner of the stolen cow, nor Nawab Din P.WA, and Zulfiqar Ali H.C. P.W.3, the recovery witnesses, identified the stolen cow in the Court. It appears that the stolen cow which was the case property was neither produced in Court nor identified by any of the witnesses in the Court, in the presence of the accused /petitioner. In L case where the stolen property for the basis of the offence, the factum of recovery has to be proved beyond every reasonable doubt. Where the stolen property is not brought before the Court and identified by the witnesses" as the stolen property, it cannot be reasonably said that the theft oft the property has been properly proved. If any authority is required for this view, Budho v. The State

1973 P.Cr.LJ 395; Khairuddin v. The State 1974 P Cr. 1. J 219 aid Muhammad Sharif v The State, 1982 PCr.LJ 1067, may be referred. Taking all circumstances into consideration, the petitioner is entitled to the benefit of doubt.

5. For the foregoing reasons, this petition is accepted and the conviction and sentence of Muhammad Iqbal, petitioner, is set aside. He is on bail. His bail bonds shall stand discharged.

M. Y .H.

Petition accepted.

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