Raja Afrasiah Khan, J:- The petitioners, Muhammad Aslam son of Hakam Ali and Muhammad Ashraf son of Ameer Ali have moved this revision petition under section 39 Cr.P.C, against their conviction and sentence. Briefly the prosecution case is that on 19.4.1975 at about 3 a.m. Abdul Latif, A.S.I. P.W2 was on petrol duty in the area of Sanai Studio, MuItan Road. He was accompanied by Afzal, Foot Constable and 2 men from the public. They were present in the neighbourhood of village Hanjerwal when the two petitioners and one Sabir were noticed by them while they were running towards the village Hanjerwal. They were being chased by Rehmat Ali, P.W1 and Shakil Ahmad P.W4 while clamouring and uttering the words 'thief 'thief! The petitioners and their co-accused were intercepted by Shafi and Khadim P.Ws and were accordingly apprehended. The person of Muhammad Aslam petitioner was searched and consequently a loaded revolver and Rs.1235/- were recovered from him along with cash vouchers. The amount and the vouchers were taken into possession vide memo Ex.PA. The pistol and 3 bullets were also taken into possession. Ashraf petitioner was armed with a hatchet, which was taken into possession vide memo Ex.PB. Sabir co- accused had a 'chhuri' with him which too was taken into possession. The allegation against the accused is that they committed decoity on Fazal Filling Station. The witness Abdul Latif, A.S.I, recorded statement Ex.PC of Shakil P.W4 which was sent to Police Station Chung for registration of the case. The witness inspected the spot and prepared the site plan Ex.PD. Thereafter the petitioner and Sabir co-accused were arrested. The case was thoroughly investigated and consequently the petitioner were challaned and were accordingly tried. The prosecution in order to prove its case produced Rehmat AIt, P.W1, Abdul Latif A.S.I. P.W2, Muhammad Shafi P.W3, Shakil Ahmad P.W4, and Khadim Hussain P.W5. The petitioners also led evidence in their defence by producing Faqir Muhammad DW1 and Akbar Ali D.W2. The petitioners while making statements under section 342 Cr.P.C, stated that they had been falsely involved in the case on account of enmity. On the basis of the prosecution evidence, the learned trial Magistrate vide his judgment dated 22.11.1976 convicted the petitioners under section 392 P.P.C, and sentenced them to 2 years R.I. Each. The petitioners went in appeal, which was heard and dismissed by the learned Additional Sessions Judge, Lahore on 19.1.1977.
2. Learned counsel for the petitioners contends forcefully that the prosecution has not been able to prove its case against the petitioners beyond reasonable doubt. The learned counsel argued that the recovery witnesses Muhammad Shafi P.W3 and Khadim Huassain P.W5 have not at all supported the prosecution version. Regarding the identity of the petitioners, the learned counsel maintained that there is not an iota of ev idence to show that it were the petitioners, who committed the offence as alleged. The learned counsel vehemently contended that the case property was never produced before the learned trial Court and the same was never exhibited as required by law. Lastly, it is urged that at any rate, this is a case of grave doubt and as such benefit of doubt should be given to the petitioners.
3. Learned State counsel has half heartedly supported the conviction and sentence of the petitioners. He conceded that the case property was not produced before the Court for its exhibition in evidence. He further conceded that the recovery witnesses Muhammad Shafi and Khadim Hussain P.W3 and P.W5 have not supported the recovery of pistol and the money from the petitioners.
4. I have heard the learned counsel for the parties and have perused the record. At the very outset, it may be mentioned that Muhammad Shaft P.W3 and Khadim Hussain P.W5 are the persons who witnessed the recovery of the loaded pistol and a sum of Rs.1235/- from the two petitioners but they did not at all support the said recovery from them. Thus the recovery remains wholly unproved by the prosecution. This is not the case of the prosecution that the petitioners were arrested at the spot within the premises of the petrol pump. The case of the prosecution is that the petitioners while armed came at the petrol pump and decamped with a sum of Rs.1235/- at piste', point in the small hours of the eventful night. According to the statement of Rehmat Ali P.W1, 3 unknown persons came at the petrol pump and they asked about the whereabouts of one Tedi Shah. Shakil Ahmad P.W4, Salesman of the petrol pump was inside the room. They forcibly obtained keys from him and opened the drawer and took away the cash of Rs.1235/- therefrom. All the three accused had a revolver, hatchet and 'chhuri' with them at the time of the commission of the crime. In examination-in-chief nothing has been said about the identity of the accused. Rehmat Ali P.W1 candidly conceded that it was dark night when the occurrence took place and he went on to say that he was away and as such he could not exactly say as to where the accused wee apprehended by the police. Abdul Latif, A.S.I. P.W2 stated that he was present in the neighbourhood of village Hanjerwal on petrol duty along with others when he came to know that the two petitioners and co-accused Sabir were running after committing the offence. They were stopped by Muhammad Shaft and Khadim Hussain P.Ws. He disclosed that Muhammad Aslam petitioner had a loaded revolver with him and that a sum of Rs.1235/- and the revolver were recovered from him. Sabir co-accused was hold'ng a 'chhuri' in his right hand. Ashraf petitioner was armed with a hatchet. These recoveries of hatchet, loaded pistol and a sum of Rs.1235/- had not been proved by the prosecution by the recovery witnesses Muhammad Shaft, P.W3 and Khadim Hussain P.W5 as stated earlier. From the close scrutinity of the evidence deposed by Abdul Latif PW2, it is clear that both the petitioners and their co-accused were intercepted by Muhammad Shaft PW3 and Khadim Hussain PWS. This fact has not been corroborated by the evidence deposed by Muhammad Shaft and Khadirn Hussain P.Ws. It is doubtful to say that it was Abdul Latif A.S.I. PW2, who apprehended the petitioners as claimed by the prosecution. I am not prepared to believe the statements of Rehmat Ali, PW1, Abdul Latif PW2 and Shakil Ahmad PW4 that they apprehended the petitioners red handed. Admittedly, according to the prosecution evidence, the petitioners were armed with deadly weapons like loaded pistol and hatchet and as such it is not believable that in the dark night when they were being hotly chased by Rehmat Ali PW1 and Shakil Ahmad PW4, they will not make use of their weapons to scare away their chasers. At least it was natural that Muhammad Aslam petitioner, who had a loaded pistol with him, should fire from it, in order to save his life and to ward off the witnesses. This was not done which will create considerable doubt in the genuineness of the prosecution story. Shakil Ahmad PW4 has disclosed aItogether a different version of the prosecution case. He stated that the accused brought Rehmat Ali PW1 in his room while giving him a severe beating. The witness stated that Rehmat Ali PW1 had received a hatchet injury on his shoulder and blood was coming out of it. He disclosed that he, too was subjected to beating by'the accused inasmuch as his hand was injured from the handle of the hatchet by the accused. He conceded that he as well as Rehmat Ali PW1 were not medically examined by some Doctor. If at all the witnesses were injured at the hands of the petitioners, then they must have been examined by the Doctor there and then. This was not done. This will show that they are not the truthful witnesses.
In my considered view, this is a serious flaw in the prosecution. The evidence of Shakil Ahmad PW4 wholly contradicts the evidence deposed by PW1. Rehmat Ali PW1 did not say any thing about the inflicion of any injury to him by the petitioners. He said that night was dark whereas PW4 admitted that it was moonlit night. The prosecution has not been able to establish its case against the petitioners beyond reasonable doubt. In my view this is a case of grave doubt and as such the petitioners are entitiled to be given the benefit of doubt.
5. The upshot of the above discussion is that there is no evidence against the petitioners to sustain their conviction and sentence. Consequently, this petition succeeds and is allowed. The petitioners are acquitted. They are already on bail and their bail bonds shall stand discharged.