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Criminal Revision No. 112/BWP of 1979, decided on 20th June, 1984.

‑‑‑S.411‑‑Stolen property, non‑production of‑‑Contention that stolen, motor‑cycle not having been produced in trial Court at time of recording statements of recovery witnesses, therefore, conviction of petitioner under S.411, P.P.C. was not maintainable‑‑Contention, held, not tenable since identity of motor‑cycle stood proved beyond reasonable doubt and petitioner fully aware of motor‑cycle, being subject‑matter of his prosecution.

‑‑‑S.411‑‑Sentence, reduction in‑‑Occurrence about nine years old while accused served out sentence of two months‑‑Sentence already served out, held, would meet ends of justice keeping in view agony of protracted trial steered by accused.‑‑[Sentence].

Mumtaz Mustafa for Petitioner.

Muhammad Ashraf for the State.

Date of hearing: 20th June, 1984.

Zafar Islam Abid petitioner was tried by Assistant Commissioner/ Magistrate Section 30, Rahimyar Khan under section 457/380, P.P.C. on the allegation of having stolen Motor‑Cycle No. RN 4473 on 29‑4‑1975. He denied the charge. To prove its case, prosecution produced 4 witnesses. Khurshid Ali Khan P.W.1, supproted the story of the occurrence given by him in the F.I.R. Abdul Rahim P.W.2 and Bashir Ahmad P.W.3 are the witnesses of recovery of stolen motor‑cycle from the petitioner Muhammad Akram Khan S.I./S.H.O. P.W.4 investigated the case. When examined under section 342, Cr.P.C. the petitioner while admitting the recovery of motor‑cycle from him explained that the motor‑cycle was given to him for repair. In defence he produced Faqir Bakhsh D.W.1 and Mubarik D.W.2 who supported the version of the petitioner. The trial Court convicted the appellant under section 411, P.P.C. and sentenced him to one year's R.I. The appeal against this order failed on 15‑11‑1979, hence this revision.

2. The learned counsel for the petitioner submits that since motor cycle was not produced in the Court at the time of recording statements of recovery witnesses, therefore, the conviction of the petitioner under section 411, P. P. C. is not maintainable.

Conversely, the learned counsel for the State supported the judgment of the Courts below.

3. I have heard the arguments advanced by the learned counsel for the parties with care and have not been able to persuable myself to agree with the learned counsel for the petitioner. I find that the identity of the motor‑cycle stands proved beyond reasonable doubts and the appellant was fully aware of the motor‑cycle, the subject‑matter of his prosecution. It may be noted that when examined under section 342, Cr.P.C. the petitioner in reply to question No.1:

In this view of the matter, I am of the opinion that the contention raised by the learned counsel does not hold any water and is hereby repelled. I further find that the petitioner did not care to cross‑examine the witnesses of recovery of motor‑cycle from him. The defence evidence is not strong enough to rebut the prosecution case and its evidence. For all these reasons I am convinced that the trial Court had rightly recorded the conviction of the petitioner under section 411, P.P.C.

4. This brings me to the question of sentence. The learned counsel has requested for its reduction. I find that the occurrence took place in year 1975; that the trial concluded on 9‑12‑1978; that the appeal was dismissed on 15‑11‑1979 and that the petitioner served out the sentence of two months before he was bailed out by this Court. In view of the agony of protracted trial suffered by the petitioner and the fact that he served out two months' R.I. it may not be proper to send him back to jail after lapse of more than 5 years. The sentence already undergone by him is sufficient to meet the case.

S. G. D. Sentence altered.

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