On the night between the 14th and 15th of May, 1969, there was a theft from the house of Ali Bux in village Kalwari, District Sukkur. The theft came to be discovered in the morning when a big aperture was found in the wall and some trunks were found to be missing. Ali Bux went to the Bangerji Police Station and lodged the report. After 23 or 24 days, the petitioner came to be arrested by the Police and on his pointation a pair of golden ear-rings, a piece of cloth and a trunk were secured from his house. After due investigation, the case was put in Court.
2. The petitioner in his statement before the learned Magistrate denied the allegations made against him but did not claim the articles in question. The learned Magistrate discharged the accused under section 253, Part I, Cr. P. C. Whereafter a revision application was preferred by the Superintendent of Police, Sukkur, before the learned District Magistrate, who after hearing the parties ordered a fresh inquiry. It is this order which has been challenged here.
3. It was contended by Mr. Mohammad Ali, learned counsel for the petitioner, that the learned District Magistrate had no powers under section 436 of the Code of Criminal Procedure to order a fresh inquiry. In support of his contention, he cited the case of Chinta Haran Barua and another v.
Ahmed Kabir Chowdhury and 2 others . This is a judgment from a learned Single Judge and is in conflict with a Judgment of a Division Bench from the same High Court reported in Afiz Ali and others v. The State , in which authorities from different High Courts were duly considered. I am afraid the contention raised by the learned counsel is untenable.
4. It is to be seen that the 3 articles alleged to have been secured on the pointation of the petitioner from his house, have no distinguishing marks. The piece of cloth was only 4-1/2 yards and no particulars have been given. The ear-rings also have got no particular distinguishing mark. Nor is1 2 there anything to be found with regard to the trunk. What is worse is that these articles were never made to be identified by the owner thereof i.e. Ali Bux. It is any body's guess as to why the investigating authorities chose to have the identification made only by P. W. Piral who had no special claim for the same.
5. The learned District Magistrate has observed that Piral has not been examined. There is an application on the record given by the P. S. I. Closing his side. No reason had been given by him.
Once the statement was made, it cannot be said that the learned Magistrate, for any reason of his own, had refused to examine any witnesses that the prosecution wanted to examine. However, as referred to earlier, even the examination of Piral would not have any improvement upon the case.
The learned District Magistrate has also observed that there was evidence of recovery under section 27 of the Evidence Act. Mohammad Azim, the only Mashir of the alleged discovery examined, has stated in his examination-in-chief, that when he had accompanied the Police party to the house of the petitioner, the latter was present in his house and had produced a box containing clothes and a pair of ear-rings. He does not say that the petitioner was in police custody. This can, therefore, hardly be called evidence under section 27 of the Evidence Act. The learned Magistrate had however, also considered the question of conscious possession as there were some other members living in the house. This was not very much in order as it was a consideration at the trial but in view of the inherent infirmities of the case, it cannot be said that the order of discharge passed by the learned Magistrate was perverse or foolish.
6. Nobody has appeared on behalf of the State though Mr. Nazar Mohammad is stated to have been the Incharge of the case. It is almost the end of the day. After due consideration, I have reached to the conclusion that the impugned order cannot be sustained. I will therefore quash the A impugned order and allow the revision petition. The bonds furnished by the petitioner for appearance before the learned Joint Civil Judge and F. C. M., Sukkur, are hereby cancelled. 1971 P Cr. L J 358 PLD 1960 Dacca 197