This revision petition has been brought from a judgment of the learned Additional Sessions Judge, Faisalabad, dated 11-11-1982 upholding the conviction of the petitioner under section 411, P.P.C. But reducing the sentence of two years' R. I. To one year's R. I.
2. Briefly the facts of the case are that the complainant namely Ghulam Haider P. W. 1, stated that two years ago on 5-6-1976 at night time he had tethered his bullocks at his dhari situated in Chak No-221/R-B, when he woke up in the morning he found his bullocks so tethered as missing, so he reported the matter to the police at station Saddar, Faisalabad. He also stated in the report that he conducted the search of his bullocks and was able to trace out the foot tracks only upto the metalled road leading to Sammundari.
3. During the course of investigation of some other case on 10-6-1976 one Dosa disclosed to the Investigating Officer that be had stolen the bullocks of the complainant alongwith the petitioner and by that time the stolen bullocks were at the dhari of the petitioner. A raiding party consisting of Rehmatullah Khan S. I. (P. W. 3) alongwith 6/7 constables, Abbas Ali (P. W. 5) and Qasim Ali (given up P. W.) was formed. Both the bullocks were recovered from the dhari of the petitioner which were taken into possession after covering all the formalities. The bullocks so recovered were identified by the complainant as his bullocks. The identification took place at the dhari of the petitioner.
4. The petitioner was put to trial under section 3 ; 9/411, P. P. C. However, he was convicted on 30-7- 1981 under section 411, P. P. C. And sentenced to two years' R. I. By the learned trial Magistrate who held that there was no direct evidence to connect the petitioner with the offence under section 379, P. P. C.
5. The prosecution to substantiate its case produced in all five witnesses namely Ghulam Haider complainant (P. W. 1), Wali Muhammad (P. W. 2), Rehmatullah Khan, S. I. (P. W. 3), Zulfiqar Ahmad, S.1. (P. W. 4) and Abbas Ali (P. W. 5), Rehmatullah Khan S. I. And Abbas Ali P. Ws. Deposed as to the factum of recovery of the stolen bullocks from the dhari of the petitioner and that they were the signatories to the recovery memo.
6. The petitioner was examined under section 342, Cr. P. C. He denied the occurrence and stated that the police had falsely involved him and case property was simply planted upon him at the instance of the complainant. However, he did not produce any defence.
7. The learned counsel for the petitioner has contended that the prosecution has failed to prove that the said bullocks were recovered from the exclusive possession of the petitioner; that the provision of section 103, Cr. P. C. Has not been properly complied with because the recovery witnesses were not taken from the locality the bullocks were recovered. He has next contended that the stolen property was not produced in the Court when the evidence of the recovery witnesses was being recorded. He has concluded his submissions by lastly maintaining that it was not stated by any of the witnesses except the Investigating Officer that the petitioner was present at his dhari at the time the recovery was effected. P. W. 2 Wali Muhammad had simply stated that at that time only Taju was present. In support of his first contention he has relied upon Muhabbat v.
The State (1978 P Cr. L J 72). In this case the stolen property was being taken by one person as going ahead by holding the rope of the animal and the second person was shown as following him. It was regarded by the learned Court that the prosecution had failed to establish that the stolen property was in the possession of the person who was following, so he was acquitted by extending the benefit of doubt. He has further relied upon Budho v. The State (1973 P Cr. L J 395), Khairuddin and 2 others v. The State (1974 P Cr. L J 219), Ghulam Shabbir v. The State (976 P Cr. L J 1063), and Muhammad Sharif etc. v. The State (1982 P Cr.J 1067). In all these cases the property alleged to have been recovered was not produced before the Court while the evidence of the recovery witnesses was being recorded down, so it was observed that it was fatal to the case of the prosecution and as a result thereof in all the above said cases the conviction in each case was set aside.
8. The learned counsel for the State while opposing this petition has argued that it is a case of solid recovery having been made from the petitioner. The place from which the bullocks were recovered was within the construc--tive possession of the petitioner. The witnesses stated that the recovery was effected from the dhari of the petitioner, therefore, it should be believed as such irrespective to the statement of the Investigating Officer who has stated that the stolen bullocks at the time of the recovery were found out as tethered at a distance of one Killa from the dhari of the petitioner and as according to the learned counsel there is no enmity between the witnesses and the petitioner, so false implication is ruled out in this case. Since, both the Courts below have believed the witnesses and have come to a concurrent finding so the matter as relating to the factual position connecting the petitioner with the commission of the crime stands concluded.
9. In this case Ghulam Haider,(P. W. 1), Wali Muhammad (P. W. 2), Zulfiqar Ahmad S. I. (P. W. 4) and Abbas Ali (P. W. 5) have stated in their evidence that the recovery was effected from the dhari of the petitioner without further locating the place. It is only in the evidence of Rehmatullah Khan, S. I.
(P. W. 3) that the dhari of the petitioner was situated at a distance of one Killa from the place the bullocks were recovered. If the case is taken up as to the recovery as it has been stated by the Investigating Officer as it is going to be, then the prosecution has necessarily failed to prove that the place where the bullocks were tethered was either in the exclusive possession of the petitioner or he had an immediate or effective control off that place or the place concerned was an immediate part of the dhari of the petitioner and none else. In cases under section 411, P. P. C. It is a well. A established rule of law that a conscious and exclusive possession is to be proved apart from the knowledge that a particular property is a stolen property if the possession of the person is to be regarded as culpable, therefore, the petitioner is entitled to be acquitted solely on this ground, yet another one can be added to it as it has been contended by the learned counsel for the petitioner that the stolen property was not produced when the recovery witnesses were deposing in the Court as to that. Abbas Ali P. W. 5, has stated in his cross-examination in clear words, "it is correct that the stolen property is not present outside the Court".
As to the second contention of the learned counsel plea that in the very compliance of section 103, Cr. P. C. The recovery witnesses were not taken down from the locality concerned. This plea is not open to the petitioner for the simple reason that where a raiding party is constituted then this section cannot be applied true to its letters because if the matter is to be taken up that way then it is not possible for the raiding party to do so because if that attempt is made then the entire mission comes out and the other party is likely to get the knowledge of it so as to do away with the stolen property which is intended to be recovered, therefore, in raid cases the witnesses are generally taken from the place a raiding party, is formed.
10. The contentions raised by the learned counsel for the State are not well placed because what in this case is lacking is the failure of the prosecution to establish what the learned counsel calls as constructive possession. There is a complete absence of evidence as to show the same by the prosecution. Once it is held that it has not been proved that the place where the bullocks were tethered was within the exclusive possession and in effective control of the petitioner then aid for conviction cannot be sought from the facts such as that there was no enmity between the witnesses and the petitioner so as to prompt them to involve the petitioner falsely. The concurrent finding of fact as to the guilt of the petitioner by both the Courts below cannot be placed on a higher footing as it has been said above that an essential ingredient constituting the offence is lacking in this case.
11. As a result of the above discussion I am of the opinion that the conviction is not at all sustainable in this case, therefore, this revision petition is accepted. The conviction and sentence of the petitioner is set aside and he is acquitted. He shall he released forthwith if not required to be detained in connection with any other case.