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Criminal Revision No. 5 of 1986, heard on 17th February,1986.

‑‑‑S. 380/457 Criminal Procedure Code (V of 1898), S. 439‑‑No evidence available to the effect that accused was seen committing lurking house‑trespass at night or stealing or having been apprehended at time of actual commission of theft‑‑Offences under S.380/457, Penal Code, held were not made out‑‑Conviction and sentence set aside.

Syed Mumtaz Haider for Petitioner.

Bashir Baig for A.‑G for the State.

Date of hearing: 17th February, 1986.

This is a revision petition by Muhammad Mushtaq, petitioner, against the judgment of a learned Sessions Judge of Sialkot dated 5‑1‑1986, dismissing his appeal. Earlier, a First Class Magistrate of Sialkot, by his judgment dated 24‑9‑1985, had convicted the petitioner under section 380/457, P.P.C. and sentenced him to six months' R.I.

2. According to the prosecution, Feroz Din, the complainant lodged F.I.R. that his horse has been stolen some 15 days back and, in spite of his search, he could not find it. Tehir Mahmood A.S.I., Muhammad Afzal Head Constable and Muhammad Asif, the prosecution witnesses, were patrolling at canal bridge Sharthanwala on 27‑8‑1984 at 10‑00 p.m., when they found Muhammad Mushtaq, petitioner, riding the horse P.1. After seeing the police party, he tried to run away, but as the police party became suspicious about his behaviour, they arrested him and recovered horse P.1 which was taken from his possession vide recovery memo. Exh. P.A. Later on the horse was identified by the complainant to be his own. The petitioner was challaned and tried. He claimed that the horse belonged to him, as he had purchased it from one Muhammad Nawaz of Shampur, District Gujrat. He also produced a receipt. Ultimately, the trial Court and the appellate Court found the petitioner guilty and convicted and sentenced him, as stated above.

3. I have heard the arguments of the learned counsel for the petitioner and the State and have perused the record. The charge against the petitioner is under section 380/457, P.P.C. There is no evidence showing the petitioner having been seen committing lurking A house‑trespass at night near the Haveli of Feroz Din P.W.2, the owner of the house, or stealing the horse P.1 or of having been apprehended at the time of actual commission of theft. As such, no offences under sections 380 and 457, P.P.C. stand made out.

4. For the foregoing reasons, this petition is accepted and conviction and sentence of Muhammad Musthaq petitioner is set aside. The petitioner is on bail. His bail bond shall stand discharged.

M.Y.H. Petition accepted.

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