By this criminal revision Muhammad Asghar petitioner calls in question:--- (a)The order, dated 23-2-1983, by which he was convicted by a Magistrate Section 30 at Jhang under section 411, P.P.C. And was sentenced to two years' R.I. And (b)the order dated 17-3-1983, whereby an Additional Sessions Judge at ]hang dismissed his appeal.
2. While facing investigation in case F.I.R. No.251, dated 9-9-1982, of Police Station Gojra, the petitioner was arrested and on his personal search he was found in possession of a sum of Rs.6,400. Pursuant to a disclosure made by him during the investigation of that case, he later on 3- 10-1982 led to the recovery of stolen ornaments worth Rs.1,100 from his house at Chishtian, District Bahawalnagar. On the basis of this recovery, case F.I.R. No. 95 was registered against him at Police Station Saddar, Jhang on 4-10-1982 on the statement of Faiz Muhammad (P.W.1) and he was sent up to the Illaqa Magistrate for trial. On its conclusion he was convicted and sentenced in the manner aforesaid. On the dismissal of his appeal he came up in revision to this Court.
2-A. It is argued on behalf of the petitioner that the Investigating Officer, who on the search of the petitioner, had found a stolen sum of Rs.6,400, was not produced as a prosecution witness, nor the original seizure memo, by which he had taken the money into possession, was proved. Exh. P.C., according to the learned counsel, was the recovery memo. By which A.S.I. Muhammad Hussain of Police Station Saddar, Jhang had seized the aforesaid amount of Rs.6,400 from Khalid Mahmood Constable who had brought the accused as also the money from Gojra Police Station. This recovery memo. In the opinion of the learned counsel has no relevance.
3. With regard to the recovery of ornaments at the instance of the petitioner, he submits that this recovery was allegedly effected at the instance of the petitioner on 3-10-1982 from his house at Chishtian, District Bahawalnagar, but the case was registered on 4-10-1982 after the identification of the ornaments by Fiaz Ahmad complainant. According to the learned counsel, the two ornaments constituting stolen property were not exhibited in the statement of Fiaz Ahmad complainant nor in the statement of Muhammad Hussain Zargar P.W. And they have only been referred in the statement of Investigating Officer.
4. It is argued on behalf of the State that the money and the ornaments belonging to Faiz Ahmad were stolen by the petitioner when they were travelling in bus from Bagh to Jhang and the recovery of the stolen money and ornaments was duly proved.
5. A.S.I. Muhammad Hussain P.W.3 had not recovered the allegedly stolen amount of Rs.6,400 because this amount was said to have been recovered from the petitioner by the Gojra police at the time of his arrest in some case. The Investigating Officer, who had recovered this amount, was neither cited nor produced as a prosecution witness. Similarly, no recovery witness was produced, and in fact no recovery memo. Was brought on the record, so far as the recovery of stolen money is concerned. As per contents of recovery memo.(Exh. P.B.), this recovery was effected on 3-10-1982, but the case against the petitioner was registered on 4-10-1982. The recovery witnesses were Khurshid and Niaz Ahmad. The latter appeared as (P.W.4) and deposed about the recovery of the ornaments at the instance of the petitioner. Both these witnesses belonged to District Jhang while the recovery was allegedly effected at the instance of the petitioner from his residential house in Mohallah Gharibabad, Chishtian. Obviously no person from the locality was associated with the recovery proceedings.
6. In view of the above, the prosecution had failed to prove the charge against the petitioner and he could not be convicted. The revision petition is, therefore, accepted, the conviction and sentence of the petitioner are set aside,) and he is acquitted.
7. The petitioner should be informed accordingly at his home address.