' This Revision Petition is directed against the order, dated 24-4-1983 of the Additional Sessions Judge, Lahore, whereby he dismissed the appeal of the petitioner against his conviction under section 411, P.P.C. And sentence of one year awarded by the trial Magistrate by his order, dated 29- 1-1983.
2. I have gone through the record of the case and have heard the learned counsel for the petitioner.
3. .According to the prosecution, the cycle was recovered originally from Muhammad Yaqub on 16- 9-1978 and taken into possession by police under section 550, Cr.P.C. However, an undated receipt of sale of the said cycle said to have been executed on behalf of the petitioner in his favour was produced by said Muhammad Yaqoob on 22-9-1978 before the police. The receipt is alleged to have been thumb-marked by the petitioner. It is written by Abdul Majid. The said Abdul Majid and Abdul Latif have signed it. Conviction of the petitioner is based upon this receipt and proof thereof adduced at the trial. Abdul Majid and Abdul Latif appeared as witnesses at the trial. In cross- examination of both these witnesses a question had been asked as to whether it was not a fact that the said receipt had 'been got thumb-marked from the petitioner forcibly in the C.I.A. There was also a suggestion that Muhammad Yaqub was to proceed forthwith to a foreign country in connection with his employment and by getting that thumb-impression forcibly from the petitioner on the said receipt Muhammad Yaqub from whom this cycle had actually been recovered by the police had been sought to be saved from being detained in Pakistan on account of this criminal case. It is apparent, therefore, that facts on which the said question and said suggestion were based constituted the defence of the, petitioner.
4. On the scrutiny of the record I find that said Muhammad Yaqub, who was cited as a witness in the challan had not been produced at the trial and there is no statement of the P.S.I. Showing that the said witness had been given up nor there is any explanation on the record to show as to why said Muhammad Yaqub had not appeared or made to appear in the case before prosecution evidence was cleared.
5. Learned. Counsel has shown me a decision of Ch.Abdul Hag, M.I.C. Dated .29-1-1983 in case No,736/78 under section 1411, P.P.C. Showing that the petitioner was with the C.I.A. Police, on 15-9- 1978 and his contention on that account that the said receipt was forcibly got thumb-marked by the petitioner stands corroborated by the circumstance of the petitioner being with the police since 15-9-1978. The circumstance of the receipt having been produced by Muhammad Yaqub on 6th day, after the said cycle had been taken into possession from him, appears to raise a doubt in respect of the existence of the receipt on the day when the cycle was taken into possession by police on 16-9-1978. If the receipt had been in existence it would not have been produced after delay of six days would have been produced at the most on second day if not on the same day. It is quite possible that said receipt could not be produced immediately because it was not in existence then and could be produced only after it was fabricated by the C.I.A. At the instance of and to favour Muhammad Yaqub who probably approached them to help him out of the predicament and enable him to proceed abroad forthwith. In any way, in the context of these circumstances the non-appearance of Muhammad Yaqub as a prosecution witness is fatal to the prosecution case. It is he alone, who could resolve the doubts hovering around the alleged receipt of alleged sale by petitioner of the stolen cycle. If he continued to live in Pakistan and even then did not appear in the witness-box the presumption is that he was not in a position to support the prosecution story of his having purchased the cycle from the petitioner. If, however, he had proceeded abroad and that was the reason for his non-appearance then it heightens the doubt that perhaps the petitioner had been implicated falsely in order to exculpate Muhammad Yaqub, who was to proceed immediately abroad in connection with his employment.
6. In view of the above I think the case against the petitioner is not free from doubt. I, therefore, by giving him the benefit of doubt, acquit him. He shall be set at liberty forthwith if not required to be detained in any other case.