RASHID AZIZ KHAN, J. - Inyatullah son of Ahmad Yar and Muhammad Razzaq son of Inayatullah were sent up for trial by Police Station Satellite Town, Sargodha for an offence under Section 25 of the Telegraph Act. Special Court, Suppression of Terrorist Activities, Faisalabad- Sargodha Division, Faisalabad vide judgment dated 19.7.199^found both of them guilty under section 25 of the Act and sentenced each of them to three years' R.I. The convicts have appealed. This judgment shall dispose of the same.
2. Prosecution story in brief, as disclosed in FIR Exh. PA/1 was that 600 meters of telephone cable connecting Bashir Colony, Shamsher Town, Jinnah Colony, Nawab Colony, Aziz Colony, W-Block, Model Town and New General Bus Stand, 3 meters out of the above said underground cable was cut by unknown persons thereby disrupting the Telephone Communication System.
Muhammad Rafique, AS1, on receipt of complaint Exh. PA got the formal FIR Exh. PA/1 registered and himself went to the stop. He prepared site-plan Exh. PC. He also prepared site-plan of the place of recovery Exh. PD. The accused in his presence got recovered telephone were P. 2 and a saw P.3, which were secured vide memo. Exh. PE. He got attested the memos from the witnesses. After usual investigation he challenged both of them.
3. Prosecution in support of its case produced five witnesses in all. PW-1 Younis Baig, AS1 and recorded the formal FIR Exh. PA/1. Atta Muhammad, Constable, PW. 2 had attested the recovery memos. Maqsood Ahmad, Assistant Engineer, Phones, Sargodha, PW. 3 had drafted the complaint Exh. PA and seat the same for registration of a case. Muhammad Iqbal, Supervisor, Telephone Department, PW-4 stated that he had delivered the complaint Exh. PA for registration of a case.
Muhammad Rafique, AS1, PW-5 had investigated the case.
At the conclusion of prosecution evidence the appellants were examined without oath. They refuted the prosecution allegations and pleaded innocence. Both of them produced a defence witness each consisting of Ehsan Ilahi, DW-1, and Muhammad Yousaf, DW-2. Both of them had deposed regarding the alibi of the accused.
4. It was contended by learned counsel for the appellants that the convictions of the appellants cannot be sustained because charge against them was that they had committed the theft of 600 meters of underground cable. Argued that there is not a single witness who deposed that he saw either of the appellant committing the theft of were. Argued that the ingredients of section 25 of the Telegraph Act are not attracted to the facts of the case. The contentions were opposed by learned counsel for the State.
5. We have heard the learned counsel and gone through the file. Charge was framed wherein it was put to the appellants that they had committed theft of 600 meters of cable. According to the FIR, theft of only three meters were was reported. Even in the evidence nobody deposed that theft of 600 meters of were was committed. We have gone through the "25. Intentionally damaging or tampering with telegraph: If any person, intending-
(a) to prevent or obstruct the transmission or delivery of any message, or
(b) to intercept or to acquaint himself with the contents of any message, or
(c) to commit mischief, damages, removes, tampers with or touches any battery, machinery, telegraph line, post or other thing whatever, being part of or used in or spout any telegraph or in the working thereof, he shall be punished with imprisonment for a term which may extend to three years, or with tine, or with both."
A perusal of this Section clearly indicates that it can be applicable only to the persons who are responsible for committing any of the acts mentioned therein. Even if complete reliance is placed on the entire' prosecution evidence, it would only establish that some were was recovered from the possession of the appellants which at its best could become a case under Section 411 Cr. P.C.
Strangely enough, nobody has claimed the ownership of the said recovered articles. PW-2, attesting witness of the recovery, stated that the recovery memo, was prepared at the Police Station after two hours of the recovery and thereafter was signed.
The up-shot of the discussion is that the prosecution has not been able to prove its case at all.
Therefore, extending the benefit of doubt, we accept the appeal, set aside the convictions and sentences of the appellants and direct that the appellants shall be released forthwith, if not required in any other case.