The three applicants herein, namely Khairuddin, Nizamuddin and Mahboob were tried by the learned Joint Civil Judge and F. C. M., Nawab--shah. Each of them was convicted by him under sections 457 and 380; P. P. C. The learned Magistrate sentenced each of the appellants to seventeen months' R. I. And to pay a fine of Rs. 100 or in default to undergo one month more R. I.
Under the first count and under the second count they were sentenced to five months' R. I. And to pay a fine of Rs. 50 each or in default to undergo one month more R. I. He ordered the substantive sentences of imprisonment to run concurrently. The applicants then preferred an appeal to the Court of Session, Nawabshah which was decided by the learned Additional Sessions Judge who set aside the convictions and sentences of the appellants and instead convicted them all under section 411, P. P. C. And sentenced each of them to one year R.
1. They have now filed the present revision application against the last mentioned judgment of the learned Additional Sessions Judge.
2. The facts of the prosecution case briefly stated are these. Com--plainant Mohammad Tufail is a shopkeeper and has a shop in village Ahmeddin Kirir. Theft in his shop took place on the night between 10th and 11th September 1969. On the next morning the complainant at morning prayer passed by his shop and found that its door was open. He then called Mohammad Hayat and Ahmed. They saw foot-prints of three persons, according to the complainant, which they covered.
They also saw that the articles were scattered inside the shop as well as outside it. Then the complainant called Pehelwan (P. W. 2) and he also saw the state of affairs. The complainant thereafter closed his shop with another lock and went to the Police Station Daur an the next day i. e., 12-9-1969, and lodged his F. I. R. There Exh. 1/A at 8-30 p. m. In his First Report he has given the list of his stolen articles from his shop. It appears that the First Report was registered by the S. H. O. Of Daur Police Station and on 13-1-1969 the same was given by the S. H. O. For investigation to Head Constable Bhambo Khan (P. W. 4). The Head Constable went to the scene of offence and prepared a mashirnama of it Exh. 5/A in presence of mashirs Mohammad Hayat and Ahmed Khan. The scene was shown to him by the complainant. The Head Constable found a breach underneath the sill of the door of the shop of the complainant from which a man could easily pass through.
According to him foot-prints were also clearly visible and he showed these footprints to Pagi Din Mohammad. The footprints were of four persons. The Head Constable thereafter recorded statements of certain persons under section 161, Cr. P. C. On 18-9-1969, the Head Constable arrested the applicant Khairuddin in presence of mashirs Mohammad Hayat and Din Mohammad (P. W. 3). At that time the complainant was already with him. It is alleged that applicant Khairuddin then voluntarily led the Head Constable and his party to hi' own house and produced a bundle from a corn bin. The bundle consisted of, according to the Head Constable, one shirt, cigarettes etc., which articles he showed in the mashirnama Exh. 14/A which he prepared regarding this recovery. The complainant is said to have identified these articles and they were taken into possession by the Head Constable. On 22-9-1969 the Head Constable went to village Mukhand where he arrested the applicant Mahboob in presence of the same mashirs. Applicant Mahboob is then said to have voluntarily led the Head Constable and his party to his own house from where this applicant produced an iron safe and other articles from underneath the beds. The Head Constable secured these articles description of which he gave in the mashir--nama of the recovery Exh. 4/B which he prepared. The property recovered was identified by the complainant and other witnesses. Thereafter, the Head Constable went to village Jari where he arrested applicant Nizamuddin who voluntarily led the Head Constable and his party to his own house and produced articles from Sur bushes kept under a Manah (but). The Head Constable secured these articles as per mashirnama Exh. 4/C. These articles are said to have been identified by the complainant. On 23-9-1969 the Head Constable handed over the papers to the S. H. O. Mahboob A.I who seems to have challaned the three applicants to the Court. The applicants in due course took their trial with the result already mentioned above and they also preferred an appeal the result of which has been before mentioned.
3. All the applicants when questioned under section 342, Cr. P. C. Denied their guilt and professed innocence. All of them denied having produced any property or stolen property before the police.
4. Applicant Khairuddin ascribed the case due to enmity of the P. Ws. He also stated that Anwar Choudhry and Kando Dabari were on inimical terms with each other and that Kando Dahad was his Nek Mard. He was, therefore, implicated in this case.
5. Applicant Mahboob also attributed enmity to the P. Ws. And lastly stated that co-accused Khairuddin was related to him and that his statement was the same as that of Khairuddin.
6. Applicant Nizamuddin also attributed the case due to enmity of P. Ws. And further stated that co- accused Khairuddin was his brother and that his further statement was the same as that of Khairuddin.
7. None of the applicants examined any witness in defence.
8. The prosecution ha, examined complainant Mohammad Tufail, Pehalwan (P. W. 2), mashir Din Mohammad (P. W. 3) and Head Constable Bhambo Khan (P. W. 4). The first two mentioned witnesses have spoken about the theft and their evidence on this point was not challenged by the learned counsel for the applicants. There is also concurrent finding of both the lower Courts on this point of theft that in fact it actually had taken place. I also find that the prosecution has proved beyond a reasonable doubt that the theft of the complainant from his shop was in fact committed.
But the question is whether the applicants could be convicted on the evidence of the prosecution for an offence under section 411, P. P. C. 7
9. The learned counsel for the applicants has taken only one point before me and it is that the alleged recovered stolen property from the three applicants herein has not been produced as case property during the trial of the applicants nor the same has been exhibited in the course of the trial as it was not produced at all by any of the prosecution witnesses at the trial. In fact there is no knowing as to what had happened to the alleged recovered property from the possession of the three applicants as the record is also silent about its final disposal or interim disposal by the trial Court or even by the police. The learned counsel also further contended that this property has not been described by the witnesses examined by the prosecution as well. In such a position of the prosecution evidence on record, according to him, the conviction of the applicants under section 411, P. P. C. Could not be maintained.
10. Keeping this argument in view will now proceed to consider as to what has been said by the witnesses who have been examined for the prose--cution regarding this alleged recovered property from the applicants. I find that the complainant has merely said in his examination-in- chief that from applicant Khairuddin some articles including bed-sheets and other articles were recovered. He did not even describe the articles beyond saying that some of it were bed-sheets but even these bed-sheets have not been produced by the prosecution as an exhibit in the trial Court. The next witness P. W. Pehalwan has said nothing about the alleged stolen articles- from the possession of the applicants. The third witness mashir Din Mohammad has stated that when applicant Khairuddin was arrested he produced one bundle from the corn-bin which was opened by the police and it was found to consist of cigarettes, soap, etc. He also said that applicant Mahboob after arrest produced one safe of iron and some other articles as well as six notes of Rs.
10 each. He then said that applicant Niammuddin after arrest produced some articles from the Sur bushes lying in the Manha in his house but he did not remember the articles particularly. He further added that they were the cigarettes, sugar and so many articles which were shown in the.
Mashirnama. The fourth witness i.e. The Investigating Police Officer Head Constable Bhambo Khan has deposed that applicant Khairuddin after his arrest produced a bundle from a corn-bin and this bindle consisted of one shirt, cigarettes etc. Which were shown correctly in the mashirnama of recovery. He also said that applicant Mahboob when a rested produced an iron safe and other, articles underneath beds and he secured all these articles which have been described in the mashirnama of the recovery. He then deposed that applicant Nizamuddin after his arrest produced articles from Sur bushes underneath his Manha (hut) which he secured as per mashirnama of the recovery.
11. It will thus appear from the evidence of all the four prosecution witnesses on which the whole case is based that they do not even properly describe what alleged stolen property was secured from each of the applicants. However, the fact still remains that no property whatever was produced before the trial Court and as such, in my opinion, the applicants are entitled to the benefit of doubt when the alleged stolen property said to have been recovered from the applicants has not been produced before the trial Court. The learned Assistant Advocate-General who appeared for the prosecution also very fairly and candidly opined that the applicant were entitled to the benefit of doubt in the circumstances of this case.
12. Accordingly all the applicants are given the benefit of doubt and acquitted of the offences for which they have been convicted. Their convictions and sentences are set aside. They are can bail and their bat bonds shall stand discharged. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.