NAIMA TULLAH PHULPOT O, J.---Imamuddin son of Allah Bakhsh Soomro Applicant was tried by Civil Judge and Judicial Magistrate-I Mirpur Mathelo in Criminal Case No. 193/2016 (State v. Imamduddin and others) for offence under section 379, P.P.C. registered vide Crime No.24/2016 of Police Station Dad Leghari After regular trial, vide judgment dated 30.06.2017, Applicant / accused Imamuddin was convicted under section 411, P.P.C. and sentenced to one year R.I and to pay fine of Rs. 3000/-. In case of the default thereof, applicant Imamuddin was ordered to suffer S.I. for fifteen (15) days. However , applicant Imamuddin was extended benefit of section 382-B, Cr.P.C. Applicant/accused being aggrieve d with the judgment dated 30.06.2017 preferred Criminal Appeal No. 11 of 2017, before learned Additional Sessions Judge-I Ghotki, who maintained the judgment dated 30.06.2017 passed by Civil Judge and Judicial Magistrate-I Mirpur Mathelo and dismissed the appeal of applicant/accused Imamuddin vide Judgment dated 14.12.2017, hence this revision.
2. Brief facts of the prosecution case as disclosed in the FIR lodged by complainant Nek Muhammad Leghari are that he resides in Mohalla Bakhshapur , Dad Leghari. He had a solar plate, which he had installed on the rooftop of his house. It is alleged that on 11.06.201 6 at 0900 hours, complainant tried to switch over solar fan but it did not function. The complainant saw on roof that solar plate was stolen from there by some unknown person.
Complainant narrated facts to his brothers and they also saw that the solar plate was not available. Complainant party tracked footprints of three persons which disappeared at the otaq of applicant Imamuddin Soomro situated near Dad Leghari where it is alleged that accused persons namely Imamuddin, Ashique and Muhammad Siddique were sitting. Complainant party told them that solar plate has been stolen and foot prints have reached at their otaq. The complainant asked them to return solar plate on which accused persons admitted their guilt and promised to return solar plate then complainant party returned to their house. On 12.06.2016, complainant along with his witnesses went to the otaq of accused Imamuddin and demanded his stolen solar plate but they refused to return the same. Thereafter , he went to Police station and lodged FIR against accused persons. It was recorded on 12.06.2016 at Police Station Dad Leghari vide Crime No.24/2016 under section 379, P.P.C. After usual investigation challan was submitted against accused under sections 379, 41 1, P.P.C.
3. Learned trial Court framed charge against appellant Imamuddin and co-accused Ashique Ali and Muhammad Siddique at Exh. 2 under sections 379, 41 1, P.P.C. All the accused pleaded not guilty and claimed to be tried.
4. In order to substantiate the charge, prosecution had examined three (03) P.Ws. thereafter , prosecution side was closed.
5. Trial Court recorded statements of both accused under section 342, Cr.P.C. at Exhs. 10 to 12. Accused denied the prosecution allegations. They did not examine themselves on oath and declined to give statement on oath in disproof of prosecution allegations.
6. Learned trial Court, after hearing learned counsel for the parties and assessment of the entire evidence, vide Judgment dated 30.06.2017 convicted and sentenced applicant/accused Imamud din Soomro under section 411, P.P.C. as staled above whereas co-accused Aashique and Muhammad Siddique were acquitted of the charge.
7. Facts of this case as well as evidence produced before the trial Court find an elaborate mention in the judgment passed by trial Court and, therefore, same may not be re-produced here so as to avoid duplication and unnecessary reputation.
8. I have heard Mr. Ali Gul Abbassi, Advocate for applicant/accused Imamuddin Soomro, Mr. Alam Sher Bozdar advocate for complainant and Mr . Zulifqar Ali Jatoi, Additional P .G. and perused the evidence minutely .
9. Learned advocate for applicant/ accused Imamuddin mainly contended that:
(i) prosecution has utterly failed to recovery of solar plate on the pointation of the applicant/ accused.
(ii) Solar plate recovered on the pointation of applicant/accused was different from the solar plate mentioned in the FIR.
(iii) that prosecution evidence suf fered from glaring contradictions.
10. On the contrary , learned advocate for the complainant supported the judgment of the trial Court and argued that prosecution has proved its case against the applicant/accused. However , learn ed Additional P.G argued that recovery of the solar plate from the exclu sive possession of the applicant/ accused could not be proved before the trial Court. He has not supported the case of prosecution.
11. Before dilating upon the rival contentions raised on behalf of the parties, it would be appropriate and advantageous to reproduce the relevant provisions of section 41 1, P.P.C., which reads as under:-- "411. Dishonestly receiving stolen property . Whoever dishonestly receives or retains any stolen property , knowing or having reason to believe the same to be stolen property , shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
Mere possession of the stolen property is not sufficient to constitute an offence under section 411, P.P.C. rather in addition it has got to be established that the person in possession of the stolen property had dishonestly received or retained the property knowing or having reasons to believe the same to be stolen. The onus is always on the prosecution to prove the essential elements of the offence. In case of failure on the part of the prosecution to prove the basic ingredients i.e. receipt or retention of property belonging to someone else, the property being stolen one, existence of knowledge or belief on the part of the person found in possession and the receipt and retention is dishonest, no conviction can be awarded. The prosecution to establish an offence under section 411 of the P.P.C., must not only prove that the property is stolen, but it must also be established that the person charged with being in possession of stolen property either know the property to be stolen or has reasonable grounds for believing the same to be stolen. In order to constitute an offence under this section, the prosecution is not only required to prove the possession to be recent but also to establish exclusive possession of the property knowing it to be stolen.
Stolen property recovered long after theft, possession cannot be said to be recent so as to ensure conviction under this section. In order to raise the presumption against the accused, he must be in exclusive possession of stolen property .
In the present case, prosecution failed to prove that applicant dishonestly received or retained solar plate/stolen property knowing the same to be stolen property . Place of recovery was also not in exclusive possession of the applicant/ accused. The description of the solar plate as mentioned in the FIR was quite different from the description of the plate allegedly recovered on the pointation of applicant. Investigation Officer failed to produce the departure and arrival entries of roznamcha of the day of recovery of solar plate. There were several circumstances in the prosecution case which created reasonable doubt. I have no hesitation to hold that prosecution failed to prove the recovery .
12. I am conscious of the fact that two Courts have decided the case against the revisionist and it is trite saying that the scope of revision under the circumstances is very limited, however , where the finding of fact affecting the decision is not based on the evidence or it is result of misreading or non-reading of evidence on record, then revisional jurisdiction is very wide and is not a power but a duty, which has to be exercised whenever facts calling for its exercise are brought to the notice of the Court. The revisional Court can interfere for correction of manifest illegality or prevention of gross miscarriage of justice.
13. It is well 'settled that prosecution has to stand on its own legs in order to prove the charge against the accused persons but in the present case prosecution has failed to perform its duty, the evidence relied upon by the prosecution to prove the charge against the applicant is full of doubts entitling the applicant to get the benefit of the same.
14. The cumulative effect of all above factors shows that prosecution failed to prove its case against applicant/ accused. Resultantly impugned judgment s are set aside and conviction and sente nce recorded by trial Courts are set aside. Applicant/accused Imamuddin son of Allah Bakhsh Soomro is acquitted of the charge. He is present on bail, his bail bond stands cancelled and surety is hereby discharged.