1. This appeal has arisen out of an order dated 4th June, 1979 passed by the District Criminal Court, Rawalakot. By this order, Shafait Khan respondent was acquitted by the trial Court for want of proof.
2. It is asserted through this appeal by the learned Additional Advocate-General that the trial Court was unable to appreciate the evidence adduced by the prosecution and not only that but a number of witnesses who were produced by the prosecution were even ignored to be mentioned in the impugned judgment. This was a case under section 380/457 of the Penal Code read with section 18 of the Islamic Penal Laws Act.
3. The prosecution examined Hashmat Khan, the complainant, Mir Muhammad, Noor Akbar, S.M.
4. Ashraf Khan and Raja Muhammad Saeed Khan, Sub-Inspector who was the Investigating Officer of the case, as their witnesses and the remaining witnesses, namely, Fateh Muhammad, Hokumdad, Muhammad Roshan and Khani Zaman who were to be produced in support of the prosecution, could not be examined as two of them named Fateh Muhammad and Hokumdad were given up by the learned Public Prosecutor, taking them as unnecessary witnesses and the evidence of Muhammad Roshan and Khani Zaman was closed by the Court as the prosecution was unable to produce them. The articles stolen which were allegedly recovered at the instance of Shafait Khan, accused-respondent from Muhammad Roshan and Noor. Akbar P. W. Were not ' satisfactorily proved to have been sold some to the former and some kept at the shop of the latter. It was alleged that the Radio stolen from the house of the complainant was sold to Muhammad Roshan, shopkeeper at Kohala for which sale an instrument `P.A.A.' was also obtained byMuhammad Roshan, the purchaser. This recovery is stated to have been made by the Police at the instance of Shafait Khan, respondent, for which seizure memo `P.B.B.' was prepared thereof. The instrument `P.A.A.' is dated 21st June, 1977 which means that the Radio seized was allegedly sold to Muhammad Roshan on 21st June, 1977. This Muhammad Roshan could not be produced by the prosecution to testify the sale of the radio to him. It was Noor Akbar alone P.W. Who was produced to state the fact of sale of radio. According to him, the radio was sold to Muhammad Roshan, shopkeeper on 11th July, 1977 when the other articles allegedly recovered by the Police from his shop, were placed by the respondent at his shop. Noor Akbar P.W. Is of the say that the articles recovered from his shop were kept at his shop on 11th July, 1977 when the radio was also sold to Muhammad Roshan and a receipt `P.A.A.' was also obtained by the purchaser i,e, Muhammad Roshan which also bears his signatures (signatures of Noor Akbar P.W.). It appears from Noor Akbar's statement that the instrument 'P.A.A.' was forged by the Police so as to show that the radio was sold on 21st July, 1977, just after the occurrence, by the respondent, whereas, according to Noor Akbar, it cannot be the case of the prosecution because he states that the radio was sold on 11th July, 1977 to Muhammad Roshan, shopkeeper, as pointed out above and Mohammad Roshan could not come forward to depose before the Court that the radio was sold to him. Moreover, the Investigating Officer. Raja Muhammad Saeed Khan says that the radio was sold to one Kamal Din.
5. It all shows that there was no case established by the prosecution before the District Criminal Court. The learned Advocate-General tried to refer to some previous proceedings taken by a Court of incompetent jurisdiction in support of his appeal, against the respondent which were even quashed by the High Court. Those proceedings cannot legally be taken into account while disposing of this appeal. Thus, the prosecution miserably failed to prove that any of the stolen property was at all recovered from the possession o Muhammad Roshan and Noor Akbar P.W. At the instance of the respondent. Two of the witnesses, namely, Noor Akbar and Raja Muhammad Saeed Khan, S.I., the Investigating Officer who were produced to prov the recoveries at the instance of the respondent, - made their deposition before the trial Court which were devoid of any worth. It was why that A Muhammad Roshan and Khani Zaman, the marginal witnesses of the recovery memos. Appear not to have been produced by the prosecution because they would not have proved better witnesses than Noor Akba and Raja Muhammad Saeed, Sub-Inspector in view of whose statements, no further attempt of any proof against the respondent could have brought anything useful to the prosecution. Thus the trial Court was perfectly right in acquitting the respondent.
6. ' For the reasons above, there is no substance in the instant appeal of the Government for which it was asserted that there was no proper appreciation of the evidence of the prosecution on the part of the trial Court. That being so, this appeal is hereby dismissed and the release of Shafait Khan respondent who is in Jail for want of bail, is ordered forthwith.