' The petitioner has challenged his conviction and sentence under section 411 P.P.C. The trial Court sentenced him to undergo R.I. For one year vide judgment dated 18-3-1989. The petitioner's appeal was dismissed by the learned Additional Sessions Judge, Gujranwala vide his judgment dated 22- 5-1989.
2. According to the prosecution story the complainant was sleeping at Mor Sheikhupura, Gujranwala on the night between 30th/31st of August, 1986 after tying his horse near the Wagon Adda. When he got up in the morning, he found his horse missing and started search along with Rashid P.W. 2 and Muhammad Riaz (not produced). They reached near Government High School, Gujranwala and found Sakhawat Ali, petitioner riding the horse towards Lahore side. The complainant and his companion apprehended the petitioner and produced him before the police at Mor Sheikhupura along with the horse. Muhammad Sharif S.I. Recorded the statement of the complainant Ex. PA, on the basis of which F.I.R. Ex. PA/1 was recorded. The horse was taken into possession vide memo. Ex. P.B. On the personal search of the petitioner cash worth Rs,331, his identity card, wrist watch, a note book and some other articles were recovered vide memo. Ex.P.C.
The investigating Officer prepared the site-plan of the place of occurrence which is Ex. P.B. After completing the investigation the challan was submitted against the petitioner.
3. The petitioner was tried in the Court of the learned Magistrate First Class, Gujranwala. The prosecution produced Muhammad Malik_ P.W.1, Muhammad Bashir P.W.2 and Muhammad Sharif, S.I. P.W.3.
4. Muhammad Malik PW 1 stated that he had tied the horse near Mor Sheikhupura and himself went to sleep. In the morning he found the horse missing and on information conveyed by some body that a person was taking the horse towards Lahore side, he along with Bashir and Riaz went in its pursuit and apprehended the petitioner near P.S. Saddar and recovered the horse. In cross- examination he stated that the petitioner was going along with horse on foot. He further stated that he had gone along with the witnesses to the police station, Sabzi Mandi at about 5 a.m. The FIR was actually recorded at 7-30 a.m. Muhammad Bashir P.W.2 corroborated the statement of PW 1. He admitted that the complainant had come at the tea shop in the morning and stated that his horse has been stolen. At that time somebody had intimated that his horse was being taken by some person towards P.S. Saddar. He admitted that he was a friend of the complainant being a Tonga Ban. He could not tell as to whether Rs,2600/- were recovered from the petitioner because the petitioner was searched inside a room while the witness was outside the room. Muhammad Sharif P.W.3 recorded the F,I.R Ex.PA. He admitted in cross-examination that he was present at the spot 5/7 minutes before the occurrence on the western side towards the wagon stand. He was at a distance of 2 Karams from Pacca Road. That place was situate at a distance of 4/5 Karams from the tea shop. It was about 5.00 a.m. When the complainant produced all the witnesses, the petitioner and the horse before him.He managed to get a chair from the tea shop and completed the proceedings of recording the F.I.R. And preparation of the recovery memos. Within one hour.
Thereafter he went to the police station. The petitioner produced 3 witnesses in his defence and himself appeared as D.W.4. When examined under section 342 of the Cr.P.C., the petitioner denied the allegation against him and explained that on 31-8-1986, he had taken tea at the tuck shop near the Mor Sheikhupura. There, three persons tried to snatch away his money and on petitioner's resistance he was falsely involved in the present case.
5. I have heard the learned counsel for the petitioner and the State and perused the relevant record. Although initially the petitioner was arrested by the police for the theft of the horse but at the trial Court no evidence regarding the theft was produced. The Court below convicted the petitioner under section 411 P.P.C. Merely for the recovery of the horse from his possession. The contention of the learned counsel for the petitioner that the defence version is probable and that mere recovery of horse was not sufficient to make out the offence under section 411, P.P.C. Against the petitioner has considerable force. There is no evidence of the theft of the horse against the petitioner. He was merely shown to be in possession of the same. Even if it is assumed that the petitioner was found in possession of the horse, this alone, in the absence of evidence of dishonest receipt of the property with knowledge or reasonable belief that it was stolen property, was not sufficient to establish the petitioner's guilt. None of the P.Ws. Stated that the petitioner had knowledge that the horse was stolen and that he had dishonestly received it despite reasons to believe that it was stolen. Divorced from the background of the alleged theft the prosecution story shows nothing except that the petitioner was seen going along with the horse. The learned counsel for the petitioner has placed reliance on Arjan Dass v. Crown (A I 1923 Lahore 340) and Mukhtar Ali v. The State (PLD 1971 SC 725) to urge that mere recovery of horse was not sufficient to prove the commission of offence under section 411 of the P.P.C. It was held in both the judgments that possession simplicity of stolen property was no offence. I respectfully follow the view expressed in the above precedents.
6. The defence version is that the petitioner had borrowed a sum of Rs,25,000 from Muhammad Yousuf, D.W.3, on the night between the 30th and 31st of August,1986.He left Yousuf s house at Sehri time and proceeded towards his house. At Mor Sheikhupura, he took tea and paid money to the shopkeeper. Two persons who subsequently became witnesses in the case saw cash with the petitioner and told him to give the money to them on the understanding that they would double the money.. On the petitioner's refusal, they apprehended the petitioner and took him to the police on the false allegation of recovery of stolen horse from him. The police recovered the amount and misappropriated the major portion of the same and showed only Rs,331 in the recovery memo.
7. The evidence on the record clearly shows that the F.I.R. Was recorded after some preliminary investigation. Hence, it was not of much authenticity. The prosecution witnesses did not state that the petitioner was in possession of the horse with knowledge that it was stolen or that he had reasons to believe it to be so. Had he stolen the horse or received it with dishonest intention and knowledge that it was stolen property he would have hurriedly rode away on the horse back. In that case he would never have walked along the horse leisurely. This conduct of the petitioner by itself negatives the element of dishonesty or knowledge that the horse was stolen. It is strange that the investigating Officer conducted no investigation in the case and merely acted as an agent of the complainant party. He conceded that after recording4he statement of the complainant and the P.Ws. And preparing recovery memos. He went back to the police station.There were a number of persons at the spot and even at the tea shop but he did not question anybody in the matter. He did not associate any person in the investigation. He did not even visit the spot from where the horse was said to have been stolen.-He did not go to the place from where the complainant and the P.Ws. Had originally apprehended the petitioner and recovered the horse. His conduct in the case appears to be far from being honest. The possibility that the P.Ws. Had seen cash with the petitioner when he made payment to the owner of the tea shop and then tried to take away the same from him on one pretext or the other and on failure " to do so falsely involved him in the case cannot be ruled out.
8. For the foregoing reasons, I accept this petition and set aside the petitioner's conviction and sentence. The petitioner was released on bail. His bail I bond and surety bond are discharged.