This revision petition is directed against the judgment dated 5th February, 1970 rendered by the learned Additional Sessions Judge, Jhelum, whereby the petitioners' appeal was dismissed and their conviction under section 411, P. P. C. And the sentence of six months' R I. Awarded to each one of them, by the learned Additional District Magistrate, Jhelum on 14th July, 1969 were upheld.
2. The facts of the case in brief are that Muhammad Ashraf P. W. I in pursuance of F. I. R. Exh. P. A. Got a case under section 381, P. P. C. Registered against the petitioners. The allegation was that he ran a cloth shop and the petitioners were employed by him as assistants. Raja Muhammad Afzal P. W. 2, purchased some cloth from his shop, it was wrapped in paper, the bundle was left by him at the shop to be taken away on the next morning. The complainant on the following morning when came to his shop, found that the bundle of cloth was missing, made enquiries and discovered that it was stolen by the petitioners. They were tried under section 381, P. P. C. But convicted and sentenced under section 411, P. P. C,
3. In support of their case besides the statement of the complainant and the Investigating Officer, the prosecution relied on the testimony of five other witnesses, out of whom, the names of Raja Muhammad Afzal P. W. 2, Taj Muhammad P. W. 3 did not figure in the challan and they were examined during the trial with the permission of the Court. The re--maining three witnesses namely Abdul Ghafoor P. W. 4, Khan Muhammad P. W. 5 and Pehlwan Shah P. W. 6, are the witnesses of recovery. The latter two are the marginal witnesses of the recovery memo. Exh. P. B, whereby the key P. 1 was got recovered by petitioner No. 1 from his house. He then led to the shop of Abdul Ghafoor, barber P. W. 4 and pointed to an attachee-case lying under a bench therein, which was opened by means of the key Exh. P. 1, and four pieces of stolen cloth Exhs. P. 3/1-2, P.4/I-2 and two dopatas Exh P. 5/1-2 and one saari, Exh. P., 6 were recovered from it. The recovery memo. Exh. P.
C. Prepared in this respect was evidenced by Abdul Ghatoor P. W. 4 and Khan Muhammad P. W. 5.
The latter is also the marginal witness of the recovery memo Exh. P. D. Whereby petitioner No. 2 got recovered from his house, seven pieces of cloth P. 7/1-2, P. 8/1-2, P. 9/1-2 and P. 10.
4. The learned trial Magistrate placed wholesome reliance on the testimony of the prosecution witnesses, At the appellate stage, the petitioners raised an objection that Raja Muhammad Afzal was a close associate of the complainant and Taj Muhammad being his employee, who latter on was taken in his employment by the complainant's brother their evidence could not have been relied upon. It appears that this argument carried some weight with the learned Additional Sessions Judge. He however, maintained that even if the testimony of these P. Ws. Was excluded from consideration, the statements of the recovery witnesses, namely, Abdul Ghafoor P. W. 4, Khan Muhammad P. W.
5. And Pehlwan Shah P. W. 6 were sufficient to prove the offence under section 411, P.P.C. And sustain the petitioners' conviction. It was, thus primarily on the strength of the evidence of the recovery witnesses that the learned Addi--tional Sessions Judge rejected the petitioners' appeal, upheld their convic--tion and maintained the sentence awarded to them.
5. I have examined the record, heard the petitioner in person and Mr. Muhammad Bilal, Advocate on behalf of the State but I find myself unable to share the view taken by the learned Courts below.
6. It is to be noticed that under section 173, Cr. P. C. It was obligatory for the Investigating Officer to have mentioned in the report submitted to the Magistrate taking cognizance of the offence, names of all the witnesses who were found by him to be acquainted with the circumstances of the case.
There is nothing on the record to suggest that Raja Muhammad Afzal and Taj Muhammad, P. Ws.
Were associated with the investigation of the case. Seemingly, they were brought on the scene for the first time during the trial. Even if the provisions of section 173 Cr. P. C. Are treated as directory in nature and the omission on the part of the prosecution to disclose the names of these P. Ws. In the Police report, counted as a mere irregularity, the circumstances alluded to by the petitioners in the impugned judgment, which, as observed above, also weighed with the learned Additional Sessions Judge, do cast serious doubt on the veracity of their testimony. If the testimony of these two witnesses is excluded, for treating the case property as stolen one, to attract the applicability of section 411, P. P. C. We are left only with the uncorroborated testimony of the complainant.
7. Khan Muhammad P. W. 5, appears to be the star witness as t the recovery of the case property as he is marginal witness to all the recovery memos i.e. Exhs. P.B., P.C. And P.D. This witness is a dismissed A. S. I. Of the Police Department who was convicted in a corruption case. As brone out from his testimony, he was summoned to the police station by the Investigating Officer and made to join the recoveries. He does not belong to the locality from where, the recoveries were effected.
Though he has denied his association with the complainant but the photogaraphs, Exh. D.1, amply portrays that he is not stranger to the complainant. His statement does not inspire confidence.
Pehlwan Shah P. W. 6 also belongs to a different locality. The houses of boot the petitioners are located in Jhelum city, it has not been shown as to why the persons from that locality were not made to join the recoveries. It is to be noticed that one Muhammad Sadiq is the marginal witness of all the recovery memos but he has not been examined by the prosecution. Law requires the recoveries should be witnessed by the person belonging to the locality. Reference in this connection may be made to Mumtaz Ahmad v. The State (1974 P Cr. L J 137) in this respect, the Investigating Officer cannot be con--sidered entirely a satisfactory witness for proving the recovery memo. The evidence of the recovery witnesses, thus cannot be accepted readily. If the recovery of the key Exh. P. 1, is rendered doubtful it would not be safe to accept the prosecution story ungrudgely, as to the pointation of the attachee case by petitioner No. I from the shop of Abdul Ghafoor P. W. 4, or for that matter getting recovered the pieces of cloth by petitioner No. 2 from his house. I do not think that in the circumstance of the case, the statement of Abdul Ghafoor P. W. 4 is enough to sustain the petitioners conviction.
8. The learned State counsel laid stress on the point that both the Courts below gave concurrent finding regarding recoveries and this being a finding of fact cannot be interfered with in exercise of revisional jurisdic--tion of this Court. It is correct that ordinarily the High Court will not embark upon reappraisal of evidence but when the Courts below have overlooked certain important aspects of the case, resulting in mis--carriage of justice, the interference will be justified. The petitioners in law, are entitled to demonstrate that their conviction is unjust. The findings arrived at by the Courts below cannot pose a bar for setting aside the petitioners conviction which otherwise is found legally unsus--tainable.
9. It is well settled that all doubts are to be resolved in favour of the accused. I feel that the prosecution has failed to prove the case against the petitioners beyond reasonable suspicion. The recoveries are not above board. In my opinion the petitioners are entitled to the benefit of doubt.
Accordingly, I accept this revision petition, set aside the conviction and sentence of the petitioners and acquit them of the charge against then. They are already on bail, the bail bonds furnished by them shall stand discharged.