' This is a revision against (i) the judgment of Mr. Akhtar Joseph, Magistrate Section 30, Toba Tek Singh, dated 29-11-1971, whereby he convicted the petitioners of an offence under section 411/75, P.
P. C. And sentenced Muhammad Sabir petitioner to six months' R. I. And Abdul Ghaffar petitioner to three years' R. I. And (ii) the judgment of the learned Addl. Sessions Judge, Lyallpur, dated 9-5-1973, whereby he dismissed the petitioners' appeal.
2. The facts of the case briefly are that a theft took place in the house of Ahmad Shafi Hashmi while he and his family were away. His son returned and found that theft had taken place. He called his father Ahmad Shafi Hashmi who lodged the F. I. R. Exh. P. A. On 15-10 1970., No one was mentioned as accused in the F. I. R. But a list of the stolen articles was mentioned therein. During the investigation the Police recovered most of these articles from four persons including the two petitioners.
' Abdur Rauf (co-accused) led to the recovery of an electric iron P. 1 and a Dopatta P. 2 from underneath a heap of bricks on 26-10-1971. These were taken into possession vide memo. Exh. P. G.
The recovery was witnessed by Azizullah P. W. 2 and Muhammad Shafi (not produced).
' Izhar Hussain (co-accused) led to the recovery of wrist-watch P. 3 from the shop of Sarwar P. W. 4, which was taken into possession vide memo. Exh. P. H. The recovery was witnessed by the same witnesses.
' Sabir (petitioner) led to the recovery of a radio P. 4 and clothes P. 5 to P. 8 from a grave in the graveyard in Mohallah Islampura. These were taken into possession vide memo. Exh. P. J. The recovery was witnessed by the same witnesses.
' Abdul Ghaffar (petitioner) was apprehended on the night of 31-10-1971 by Ghulam Dastgir Khan S.
1. P. W.
10. At that time he was carrying a radio P. 9 and was wearing the stolen sweater P.
10. These were taken into possession vide memo. Exh. P. K. The recovery was witnessed by Azizullah P. W. 2 and Salim Raza P. W.
3. Abdul Ghaffar petitioner also led to graveyard of Chak No, 330/JB near Toba Tek Singh and got recovered a box P. 12 containing articles P. 11 and P. 13 to P. Lg. These were taken into possession vide meme. Exh. P. L. The recovery was witnessed by Azizullah P. W. 2 and Muhammad Shafi (not produced).
' Izhar Hussain co-accused was discharged by the learned trial Magistrate under section 253, Cr. P.
C. By his order dated 16-11-1971.
3. The prosecution produced 10 witnesses in support of its case. The accused-petitioners denied the possession as well as the recovery of the stolen articles from their possession. They produced five witnesses in their defence.
4. The learned trial Magistrate acquitted Abdur Rauf co-accused but convicted Sabir and Abdul Ghaffar petitioners under section 411/75, P. P. C. Sentencing them as mentioned above.. Their appeal was rejected by the learned. Addl. Sessions Judge, Lyallpur.
' Hence the present revision petition.
5. I have heard the learned counsel for the parties and have also gone through the entire record.
Since it is a case under section 411, P. P. C. (I. e. Recovery of stolen property), the prosecution case turns upon the evidence of the complainant and the recovery witnesses.
' The complainant identified all the goods to be his. The recoveries made from Abdur Rauf and Izhar Hussain have become irrelevant as the first mentioned is acquitted while Izhar Hussain co accused was discharged by the learned trial Magistrate. I am, therefore, left with the recoveries effected from Sabir and Abdul Gbaffar, which have already been mentioned above. The factum of recovery made at the instance of sabir petitioner is supported by Ghulam Dastgir Khan S. I., P. W. 10 and Azizullah P. W. 2 while those made at the instance of Abdul Ghaffar petitioner is supported by Ghulam Dastgir Khan S. I. P. W. 10, Azizullah P. W. 2 and Salim Raza P. W.
3.
6. I have carefully gone through the evidence of these witnesses specially those of Azizullah and Salim Raza' P. Ws., who were the only Members of the public associated by the Investigating Officer (Ghulam Dastgir Khan S. I. P. W. 10) with the recovery of the stolen articles. I find that Azizullah P. W. 2 is a stock witnesses, who has admittedly appeared in a number of theft cases. His testimony cannot, therefore, be relied upon. The evidence of Salim Raza P. W. 3 is also not very convincing. He is said to have accompanied the police on gush: (round) when the former apprehended Abdul Ghaffar petitioner, when he was carrying radio P. 9 and a sweater P.
10. He admitted that he was a partner in a cinema ; that the police visited his cinema and that he had been with the police on gusht on two or three earlier occasions. This would show that even he has very close association with the police and could, therefore, be easily prevailed by the latter to become a witness in the case. I am of the view that they are procured witnesses who have been brought forward by the police to support the prosecution case. I am not inclined to believe either of them.
7. The third witness of recovery is Ghulam Dastgir Khan S. I., P. W.
10. In view of my above-mentioned observation about Azizullah and Salim Raza P. Ws., his conduct cannot be said to be above-board. His testimony also cannot, therefore, be believed. As such I find that the factum of recoveries at the instance of the petitioners has not been proved beyond doubt.
It may be mentioned that the remaining witnesses only relate to the identification of the articles, and it is, therefore, not necessary to discuss them.
8. As a result of the above discussion I accept the revision petition, set aside the order of the two Courts below and acquit the petitioners. Since Muhammad Sabir petitioner No, 2 is already on bail, his bail bond stands discharged. But Abdul Ghaffar petitioner No, 1 is in jail. He should be released forthwith if he is not required in any other case.
' Since the petitioners do not claim the articles said to have been recovered from them, the complainant shall be allowed to retain them.