Abdul Ghafoor aged 25 years was accused along with Muhammad Ali Mutwala, Muhammad Yousaf, Sajjad Ali and Wali Muhammad alias Walia, of an offence under section 395, P. P. C. Wali Muhammad accused could not be arrested and was subsequently killed in an encounter with the police. The remaining accused persons including Abdul Gbafoor appellant were tried for the said offence by Mr. Muhammad Yousaf Khan Magistrate Section 30, Wazirabad, District Gujranwala. The learned trial Magistrate acquitted Sajjad Ali, Muhammad Yousaf and Muhammad Ali Mutwala co-accused but convicted Abdul Ghafoor appellant of an offence under section 395, P. P. C. and sentenced him to six years' R. I. Abdul Ghafoor appellant has filed an appeal against his conviction and sentence.
2. The facts of the case as briefly stated are that on the night between the 9th and 10th of December 1968, Khurshid Ahmad P. W. was sleeping in his house in Kot Qadir Bakhsh District Gujranwala, along with his wife, his son Arshad Mahmood P. W. 11, his daughters and a maid servant. At about 11-00 p.m. somebody called out for Khurshid Ahmad from outside whereupon his wife opened the door. Five persons who were armed with guns, knife, sota and rifle etc. entered the house and ordered the inmates of the house to sit still in their places. They then started picking up valuable articles from the house, including three gold- rings, Rs. 2,000 in cash, two wrist watches, Achkan, a cap, a pair of khussa, a woollen Chaddar and some ladies clothes. Thereafter they left the place carrying with them the above-noted articles. Khurshid Ahmad then raised an alarm which attracted some other persons. Next morning lie left for the Police Station Ahmad Nagar (District Gujranwala) in order to lodge a report. In the way, at about 9-00 a.m., he met Shuakat Ali S. H. O. (P. W. 5), to whom he made statement, Exh. P. A. It was recorded at 9-00 a m. The S. H. O. sent the statement to the Police Station for the registration of a case. Muhammad Sharif A. S. I. (P. W. 7) recorded the formal F. I. R. at the Police Station at 10-05 a.m. on the same day, i.e. on 10th of December 1968. The names of the dacoits were not mentioned in the F. I. R. Therefore after the arrest of the accused persons (other than Wali Muhammad who was never arrested), three identification parades were held for the identification of the accused persons. Identification parade for the identification of Abdul Ghafoor appellant was held on 1-1-1959. He was not identified by Khurshid Ahmad complainant but Arshad Mahmood P. W. 11, the complainant's son, identified him correctly. Abdul Ghafoor appellant, as well as Muhammad Yousaf, Sajjad Ali and Muhammad Ali Mutwala were challaned and sent up for trial.
3. During the investigation Abdul Ghafoor appellant led to the recovery of clothes P. 2 and P. I6 to P.
19 on 13th January 1969, which were taken into possession vide memo. Exh. P. C. Shafaqat and Bahawal Bakhsh P. Ws. witnessed the recovery. Sajjad Ali co-accused led to the recovery of clothes and ornaments P. 20 to P. 22 and some other clothes pertaining to another case, vide memo. Exh. P.
D. Some other articles are said to have been recovered at the instance of Sajjad Ali, Muhammad Yousaf and Muhammad Ali Mutwala co-accused, but those are not relevant for the purpose of this appeal and need not, therefore, be mentioned.
4. At the trial the prosecution produced 11 witnesses in support of its case, including the two eye- witnesses. The prosecution case rests on the ocular evidence and the identification of appellant by Arshad Mahmood P. W. 11 and the recovery of the articles at the instance of the appellant.
5. I have heard the learned counsel for the appellant as well as the learned State counsel and have also gone through the entire record with their help. The learned counsel for the appellant contended that the identification of the appellant has not been satisfactorily proved. He pointed out that although Arshad Mahmood P. W. 11 is said to have identified the appellant at the time of the incident yet his name was not given in the F. I. R. Had Arshad Mahmood P. W. in fact identified him and he would certainly have mentioned his name to his father Khurshid Ahmad and the appellant's name would have then found mentioned in the F. I. R. ? The omission, therefore, falsifies the P. Ws. The learned counsel pointed out further that Khushid Ahmad did not identify the appellant at the identification parade and although Arshad Mahmood P. W. is said to have identified him at the parade, he has not mentioned this fact in his statement at the trial, which renders tire proceedings of the identification parade useless.
The learned State counsel frankly conceded that in view of the above-noted contentions, the conviction of Abdul Ghafoor appellant under section 395, P. P. C. cannot be maintained because the case against the appellant cannot be said to have been proved satisfactorily. However, he submitted that since some of the stolen articles were recovered from the appellant, he can be found guilty of an offence under section 411, P. P. C.
I have carefully considered this contention. The recovery was witnessed by Shafaqat P. W. 4 and Bahawal Bakhsh P. W. 1. 1 notice that whereas the occurrence took place in village Kot Qadir Bakhsh, both the witnesses of the recovery belong altogether to a different village. The provisions of section 103, Cr. P. C. were not complied with properly. This renders the recoveries doubtful. (Ref. Sardar All v.
The State) (1). Apart from this even if it be presumed that the^fwrticles in question were recovered at the instance of appellant, neither Khurshid Ahmad P. W. 6 nor his son Arshad Mahmood P. W. 11 have stated in any way that the articles in question belong to them, the same therefore cannot be connected with the offence. The result is that the appellant cannot be convicted on this evidence for offence under section 411, P. P. C.
6. As already mentioned above the learned State counsel has conceded that the offence under section 395, P. P. C. has not been satisfactorily established against the appellant. Consequently 1 accept the appeal; set aside the impugned judgment and acquit the appellant. He should be