' The petitioner along with two others was tried in case F.I.R. No,799 dated 25-12-2000 under section 392, P.P.C. Registered at Police Station, Satellite Town, Gujranwala, and was convicted by Illaqa Magistrate, Gujranwala, vide judgment dated 12-2-2004 under section 392, P.P.C. And was sentenced to three years' R.I. And a fine of Rs,15,000 in default of payment of which to further undergo 2 months' S.I. He filed an appeal before the learned Addl. Sessions Judge, Gujranwala, who vide judgment dated 8-4-2004 dismissed the same. The petitioner has filed the present Crl.
Revision No,337 of 2004 against the impugned judgment.
2. It has been mainly argued on behalf of the petitioner that the learned Courts below had misread the prosecution evidence in recording the petitioner's conviction and that the petitioner's name had not been mentioned in the F.I.R. And as well as by the P.Ws. In their statements and the petitioner was implicated and challaned in the case on the basis of identification parade in which the complainant and the P.Ws. Had allegedly identified the petitioner to be one of the culprits and the prosecution has withheld said important piece of evidence by not producing the Magistrate who held the identification parade proceedings and also by not bring the said proceedings on the record and thus identification of the petitioner does not stand made out from the prosecution evidence beyond reasonable doubt. It has also been argued that P.W.5 Muhammad Rashid Sindhu Inspector Investigation had conducted the investigations and he had deposed that in his investigations in which both the parties were confronted the petitioner and other accused were found to be innocent and that the said P.W. Was not declared hostile or even cross-examined by the prosecution and thus from the prosecution evidence itself innocence of the petitioner is spelt out.
3. The record reveals that Muhammad Asghar complainant while lodging the F.I.R. Had alleged that on the night of 24-12-2000 he along with his brother Sarfraz after closing his shop camp to their house and shortly thereafter three unknown persons also entered the house and they forcibly removed cash amount of Rs,27,000 from him and Rs,6,000 from the jewellery drawer. It is also borne out that subsequently the petitioner along with his two other co-accused namely Muhammad Arif and Muhammad Yousaf were arrested and in the identification parade held by a Magistrate the complainant and his brother had identified the petitioner and his other two co-accused as the culprits and consequently upon completion of the investigation report under section 173, Cr.P.C.
Was submitted against them.
4. During trial proceedings the prosecution did not produce the Magistrate who had held the identification parade and also failed to bring on the file the identification parade proceedings wherefrom the identity of the petitioner could be established as one of the culprits. Muhammad Rashid Sindhu, Inspector Investigation while appearing as P.W.5 further deposed that during investigations in which the petitioner and his companions were confronted with the complainant and his brother, he found that the petitioner and his companions were innocent and had not committed the occurrence. This P.W. Was not cross-examined by the prosecution meaning thereby that his statement stood accepted by the prosecution. Thus the identity of the petitioner and his two other companions does not stand established on the file beyond reasonable doubt. Therefore, the learned Courts below while recording the petitioner's conviction have not only misread the facts but have also erred in law. By accepting this petition I set aside the conviction and sentence awarded through the impugned orders and acquit the petitioner of the charge. He shall be released from Jail if not required in any other case.