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Criminal Appeal No. 494 of 1984, decided on 30th October, 1984.

---S.411‑‑Stolen property‑‑Recovery‑‑Ornaments recovered from accused not proved to be stolen property‑‑Accused given benefit of doubt and acquitted.‑‑[Recovery].

Ihtasham Qadir Shah for Appellant.

Rafi Siddiqui for the State.

Date of hearing: 30th October, 1984.

This Criminal Appeal arises from the judgment of the learned Additional Sessions Judge, Toba Tek Singh, whereby he on 19‑8‑1984 while acquitting appellant of charge under section 17 Harabah (Hudood Ordinance) No.VI of 1979 convicted him under section 411, P.P.C. to three years' R.I. and a fine of Rs.1,000 in default thereof R.I. for three months for dishonestly retaining the stolen ornaments.

2. The learned counsel for the appellant contends that since prosecution has failed to prove that the ornaments P/1 to P/3 recovered from the appellant were stolen property therefore, the conviction of the appellant is liable to be set aside on this ground alone. Conversely the learned counsel for the State supported the judgment of the trial Court.

3. I have considered the arguments advanced by the learned counsel for the parties with care. I find that the prosecution produced 8 witnesses in all. From the statement of Ali Younas P.W.8 and Muhammad Ashraf S.I. P.W.6 it stands proved that ornaments P/1 to P/3 were recovered from the possession of the appellant.

4. Since the recovery of the ornaments from the appellant is a proved fact, therefore, the material and important question for determi nation is whether ornaments P/1 to P/3 were the stolen property or A not. I find that Mst. Bakhan P.W.2 and Noor Akbar complainant when examined in the Court have not stated that ornaments P/1 to P/3 belong to Mst. Bakhan or that these ornaments were stolen away by the appellant or any one.

5. In view of the infirmity, the conviction of the appellant cannot be maintained. Giving him the benefit of doubt he is acquitted of the charge. He shall be released forthwith if not required in any other case.

M. Y. H. Appeal accepted.

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