Imdad Hussain, complainant P.W. 1, lodged an F.I.R. On 8-1-1983, alleging that somebody had stolen his buffalo 11 years prior to the registration of case. In the F.I. R. He had expressed his suspicion against the petitioner, one Bhago, who is an absconder in the case, and the third person namely, Sharif. He had also mentioned in the F.I.R. That the abovenamed three persons had confessed their guilt before Liaqat and Umar Hayat P.Ws. And had promised to return the buffalo, but had later on resiled.
2 Some three months after the registration of the case, petitioner and Bhago (absconder) are stated to have returned the buffalo to the complainant in the presence of Liaqat and Umar Hayat P.
Ws. The complainant took the buffalo to the police and the police after taking the buffalo into possession, arrested the petitioner and Bhago (absconder). After completion of necessary investigation, the challan was submitted to Court.
3. Learned Trial Court (R.M. Tandlianwala) after having recorded the prosecution evidence and the plea of Gulzar petitioner, convicted the petitioner Gulzar under section 411, P.P.C. And sentenced him to undergo one year's R.I., vide order, dated 8-5-1985.
Bhago, who had also been challaned alongwith Gulzar petitioner had absconded during trial.
4. The appeal filed by the convict was dismissed by the Additional Sessions Judge, Faisalabad, vide order, dated 25 6-1985.
The petitioner has challenged the order of his conviction and that of his dismissal of appeal by way of filing the revision petition.
5. At the time of admission of the revision petition, learned counsel for the petitioner had not pressed the revision petition on merits. However, he laid stress that the sentence awarded was not commensurate in the circumstances of the case. Even today, stand of the learned counsel is the same. He has, however pointed out that the conduct of the petitioner (Gulzar) in having returned the buffalo without any pressure by any state agency show, that he had given some proof of his intention to revert to an honest way of life. Learned counsel vehemently contended that due regard should have been paid to this conduct of the petitioner by the trial Court as well as by the appellate Court.
6. Learned counsel for the State, on the other hand, argued that there is no mitigating factor.
According to him, the return of property by the petitioner was in a way confession of the crime as well and that it cannot be stated that he had returned the property without pressure. At least, according to him, he was under the pressure of the persons from the village.
7. I have gone through the judgments of the lower Courts and have considered the contentions raised by the learned counsel for the parties. Learned counsel for the State had not been able to deny the fact that the F.I.R. Was lodged after 1 -- year, of the alleged occurrence and that even during 3 months after the registration of the case the police was unable to recover the alleged stolen property. As a matter of fact, the facts noted above have not been denied by the learned counsel for the State.
8. In spite of the fact that the learned counsel for the petitioner has not questioned the conviction of the petitioner, I have considered this aspect as well.
Having considered the pros and cons of the case, I have not been able to find anything wrong in the findings of the lower Courts with regard to the conviction of the petitioner under section 411, P.P.C. However, I find force in the argument advanced by the learned counsel for Gulzar petitioner that the sentence in this case is not commensurate with the facts disclosed at the trial. As noted above, the fact is undisputed that the petitioner had returned the stolen property of his own to the complainant of course, in the presence of public witnesses. No evidence was recorded during trial to say that the petitioner had returned the buffalo under pressure of P.Ws. Liaqat and Umar Hayat or any body else.
This being the position one can read that the petitioner had thought, for one or the other reason, that return of stolen property to the complainant, was best thing to be done. I think, for such a situation concession should be granted while awarding sentence.
Keeping in view all the facts and circumstances of the case; I feel inclined to reduce the sentence of the petitioner from one year R.I. To that of already undergone.
The revision petition is dismissed, the conviction of the petitioned is maintained, sentence, however, is reducedto that of already: undergone.