This will dispose of Criminal Revision Nos. 434 of 1976 and 410 of 1978, both by Faiz Muhammad, petitioner. Criminal Revision No, 434 of 1976 has arisen out of a judgment of the learned Sessions Judge, Bahawalnagar, dated 19-4-1976, maintaining the conviction and sentence recorded under section 411 of the P.P.C. By the learned Magistrate's judgment dated 30-8-1974, and Criminal Revision No, 410 of 1978 is directed against the judgment of the learned Additional Sessions Judge, Lahore, dated 30-4-1978, maintaining the conviction and sentence recorded under section 411 of the PPC by the learned trial Magistrate's judgment dated 2-9-1975.
2. The facts giving rise to these revision petitions are as follows. On 28-7-1973, Nisar Ahmad PW reported to the Police at Haroonabad that the petitioner Faiz Muhammad and his co-accused Muhammad Akram were his employees at his Kiryana shop in Haroonabad. On 26-7-1973, he had gone for lunch leaving the petitioner and Muhammad Akram at the shop. By inadvertence, he left the keys of his safe behind. The petitioner and Muhammad Akram stole a sum of Rs,20,500 lying in a plastic bag in the safe alongwith his cheque book PA and cash book PB. When he came back to the shop and the theft was detected, he searched for the petitioner and Muhammad Arkam accused in vain. On 29-7-1973, at about 12-30 a.m., the petitioner and Muhammad Akram accused were found by Muhammad Aslam Sahi SHO P.S. Baghbanpura, Lahore, near Muslim Commercial Bank, Kanak Mandi Branch Baghbanpura Road, Lahore; the petitioner had with him a sum of Rs, 14,500 in his bag, he was also in possession of an unlicensed revolver. As he could not account for the money and - when interrogated, admitted that the money was stolen money, a case under section 411 of the PPC was registered against him; a case under the Arms Ordinance was also registered against him. The petitioner and Muhammad Akram were then taken to Haroonabad; there on 5-8-1973, the petitioner led to his residential house, dug out a place and produced a plastic bag containing Rs,5,000 and the cheque book Exh. PA and the cash book Exh.PB. The cheque book and the cash book had been issued by the United Bank Limited in favour of the complainant.
It should be mentioned here that Muhammad Akram accused was acquitted in both the cases by the learned trial Magistrate. It is also interesting to note that in the case under the Arms Ordinance, the petitioner was convicted by the learned trial Magistrate but was acquitted by the same learned Additional Sessions Judge as had upheld his conviction under section 411 of the P.P.C. By his judgment dated 30-4-1978. This produced a remarkable result, for the recovery of the sum of Rs, 14,500 and the unlicensed revolver was effected at the same time at the same place and was witnessed by the same witnesses.
3. In my opinion, the prosecution of the petitioner for being in possession of Rs,14,500 at Lahore was wholly against law; if the money had been stolen from the shop of Nisar, complainant, at Haroonabad and later another sum of Rs, 5,000 was recovered from the petitioner from Haroonabad, the petitioner could be tried only once under section 379 or 411 of the PPC. On this short ground, the revision petition No,410 of 1978 deserves acceptance and the conviction and sentence are liable to be set aside.
4. As to Criminal Revision No, 434 of 1976, having perused the record with the help of petitioner's counsel, I do not think that any ground for interference with the conviction of the petitioner is made out. The prosecution examined Nisar Ahmad, Rehmat Ali, Doctor Hameedullah Khan, Haji Mukhtar Ahmad, Noor Muhammad and Sharif ASI. Nisar Ahmad (PW1) and Haji Mukhtar (PW4) testified to the fact that a theft of Rs, 20,500 had taken place from their shop; that alongwith the money, the cheque book and the cash book, PA and PB, had also been taken away. According to them, the petitioner was employed at their Kiryana shop. Rehmat Ali and Dr. Hameedullah Khan stated that the petitioner had led to a house and had dug out a plastic bag containing Rs, 5000 and the cheque book and the cash book Exh. PA and Exh.PB. They were taken into possession vide memo Exh.PB. Nisar Ahmad, Haji Mukhtar Ahmad, Rehmat Ali and Dr. Hameedullah Khan had no reason to falsely implicate the petitioner.
5. The petitioner, in his statement under section 342 of the Cr.P.C., denied the theft; he also denied that any money had been recovered from him. It is significant to note that in answer to the question whether the bag P2 containing the money alongwith the cheque book and the cash book PA and PB had been recovered from him he was content to say that the currency notes belonged to him but the other things did not belong to him. He did not deny that they had been recovered from him. It was suggested on his behalf to the prosecution witnesses that the house from where the recovery was allegedly effected belonged to his maternal uncle, Sakhi Muhammad. His defence witnesses were Ismail, Sakhi Muhammad, Nusrat Ali and Aqeel. Ismail said that the house from where the recovery was effected belonged to the petitioner's maternal uncle, Sakhi Muhammad. In cross-examination, he said that the petitioner used to live with his brother Aqeel.
Sakhi Muhammad said that the house from where the recovery was allegedly effected belonged to him, but no recovery had ever been effected from that house. He denied that the petitioner was his sister's son. This belied Ismail DW that the house was the house of petitioner's maternal uncle.
Nusrat DW said that Aqeel DW had approached him for Rs, 5000 saying that the police were torturing the petitioner and demanding Rs,5000. He had, therefore, lent Rs,5000 to Aqeel. Aqeel DW said that he had obtained Rs,5000 from Nusrat and given the same to the police. That was the money, which, according to them, had been shown as the stolen money. This evidence was, thus, of little help to the petitioner's case.
6. For these reasons, I would set aside the judgments of the learned Magistrate and the learned Additional Sessions Judge, Lahore, dated 2-9-1975 and 30-4-1978 and acquit the petitioner, but maintain the petitioner's conviction in Criminal Revision No, 434 of 1976. In the circumstances of the case, however, I would reduce the petitioner's sentence to imprisonment already undergone.
Besides the period that the petitioner had spent in jail during the trial, the petitioner's appeal was dismissed on 30-4-1978 by the learned Additional Sessions Judge, Lahore, and he was allowed bail by this Court's order dated 18-7-1978. Thus, he had spent more than three months 'in jail after the dismissal of his appeal by the learned Additional Sessions Judge, Lahore. Similarly, his appeal was dismissed by the learned Sessions Judge, Bahawalnagar's judgment dated 19-4-1976 and he was allowed to be released on bail by this Court's order dated 15-7-1976. This period also comes to more than three months. In other words, besides the period that the petitioner had spent in jail during the trial in the two cases, the petitioner had spent more than six months in jail as a result of the dismissal of his appeals by the Sessions Courts in the two cases. The entire sum of Rs, 20,500 has already been given to the complainant. With this modification, the revision petition No, 434 of 1976 is dismissed.