This is revision petition under section 439, Cr. P. C. By Noor Muhammad, petitioner, against the judgement of the learned Sessions Judge, Sahiwal, dated 2nd August, 1972, dismissing his appeal.
Earlier, the Resident Magistrate, Depalpur, by his judgment dated 9th June, 1972, had convicted the petitioner under section 379, P, P. C. And sentenced him to one year's R. I. And directed that the stolen currency note of Rs. 100 should be delivered to the complainant, after the result of the appeal, if any, filed against his conviction.
2. Brief facts of the prosecution case are that Faryad Ahmad Khan P. W. 1 lodged complaint Exh. P. A.
With Muhammad Aslam, H. C. P. W. 4, on 25th May, 1971 deposing that on the said date he came from his village Sobharam to Bus Stop at Dipalpur. Tariq Ahmad Khan his nephew was also accompanying him. He boarded a Bus bound for Pakpattan. Noor Mohammad accused also boarded the same bus. The complainant had a hundred-rupee currency note in the front pocket of his shirt. The accused stealthily took out that currency note from his pocket and tried to escape.
The complainant came to know of this fact immediately and he caught hold of the accused. Dil Muhammad P. W. 2 who was also present at the Bus Stand helped him in over--powering the accused. In the meanwhile, a Head Constable alongwith a constable turned up at the Bus Stand and the person of the accused was searched and the currency note belonging to him was recovered from the pocket of the accused. The police prepared the recovered memo, which was signed by Wali Muhammad P. W. 3, and Dil Muhammad P. W. 2, Muhammad Aslam, H. C., P. W. 4, recorded the statement of the complainant which is Exh. P. A. And sent the same to P. S. Dipalpur for the preparation of formal F. I. R., where H. C. Muhammad Yusuf, prepared the same which is Exh. P.
A./1. The H. C. Conducted the investigation and prepared the recovery memo Exh. P. B. And the site plan of the place of recovery Exh. P. C. He arrested the accused and got him challaned to the Court.
3. Both the lower Courts, relying upon the evidence of Faryad. Ahmad P. W.
1. Dil Muhammad P. W. 2, and Wali Muhammad P. W. 3, convicted and sentenced the accused, as stated in para 1 above.
4. I have heard the arguments of the learned counsel for the petitioner and the State and have also perused the record. The learned counsel for the petitioner has challenged the ocular testimony on three main grounds. First that though in the F. I. R. The complainant Faryad Ahmad P. W. 1, mentioned that he had only one currency note of Rs. 100 in the front pocket of his shirt, which was picked by Noor Muhammad petitioner, which story was supported by Dil Muhammad P. W. 2, and Wali Muhammad P. W. 3, but in his evidence at the trial be referred to many currency notes of Rs.
100 lying in his pocket, which were picked by the petitioner, apart from four other currency notes which were also lying in his pocket. Second, that though Faryad Ahmad complainant P. W. 1, and Dil Muhammad P. W. 2, stated that the recovery of the stolen currency note Exh. P. B. Was effected by them from the petitioner before the police came to the spot, yet Wali Muhammad P. W. 3, and Muhammad Aslam, H. C., P. W. 4, deposed that the said note was recovered from the petitioner in their presence. And third and last, that Dil Muhammad P. W. 2, and Wali Muhammad P. W. 3, as admitted by the complainant and these witnesses, were friendly and known to the complainant and that a false case had been trumped up against the petitioner at the instance of Muhammad Aslam. H. C., P. W. 4, who was inimical with the petitioner earlier, when he was posted as Head Constable in Police Station Noor Shah, where the petitioner belongs. I have given my anxious considerations to this case. So far as the first ground taken up by the learned counsel for the petitioner is concerned, the same seems to carry weight. Faryad Ahmad, complainant P. W. 1, in his F. I. R. Clearly mentioned that he had only one currency note of Rs. 100 in his front pocket of his shirt on the date of incident, which was picked by the petitioner, which story was supported by Dil Muhammad P. W. 2, and Wali Muhammad P. W. 3, whereas, at the trial, the complainant referred to a number of currency notes of Rs. 100 being present in his pocket at the time of occurrence, which were picked by the petitioner, in addition to four other currency notes, which were also then in his pocket. This contradiction throws a dark shadow o doubt on the prosecution case. There is no consistency between the complainant, on the one hand, and the other two eye-witnesses, on the other, as to the number and nature of notes picked by the petitioner from the front pocket of the complainant. On admitted grounds, Dil Muhammad P. W. 2, is shown to be friendly with the complainant and Wali Muhammad P. W. 3, is also stated to be known to him. There I also some discrepancy as regards whether the stolen currency not Exh. P. B , was recovered from the possession of the petitioner before the arrival of the police party or afterwards. A shadow of doubt hang over the whole case. The petitioner is, therefore, entitled to the benefit of doubt.
5. For the foregoing reasons, this petition is accepted and the conviction and sentence of the petitioner is set aside. The petitioner is on bail. His bail bond shall stand discharged.