1. ' The above Criminal Revision Application has been filed against the judgment delivered by Joint Civil Judge and First Class Magistrate, Nawabshah in Criminal Case No,209 of 1981 wherein she has convicted the applicants for offences under section 411, P.P.C. And sentenced them to suffer R.I. For one year and pay a fine of Rs,1,000 in default of payment of fine to suffer R.I. For one month more.
2. The said conviction was maintained by Sessions Judge, Nawabshah who has dismissed the appeal filed by them against their conviction, however, he extended the benefit of section 382-B, Cr.P.C. To the applicants. Against both judgments Criminal Revision Application has been filed which was admitted on 14-7-1994 and the contention of the applicants is that the judgment of two Courts below are erroneous in law inasmuch as that they have maintained the findings on the point of recovery of stolen property but have ignored to consider the fact that no single Mashir of recovery was examined by the prosecution. Learned counsel for the applicants has further contended that there is no evidence that the property recovered from the applicants in relation to which the applicants is said to have possessed any knowledge that the property so recovered was stolen, as such section 411, P.P.C. Is not attracted.
3. ' The brief facts of the case are that on 10th August, 1988 at about 12-30 p.m. One Umaid Ali son of Ghazi lodged F.I.R. No,83 of 1988 at Dour Police Station under section 379, P.P.C. Alleging therein that during the previous night while he alongwith Muhammad Nawaz and Muhammad Akbar were asleep in their Katcha house a gun and colour T.V. Was stolen and they found footprints of five persons. The prosecution case against the applicant Wahid Bux is that A.S.-I. Shahid Ali arrested him and on interrogation he led the police party on 13-5-1989 to Janan Shah Graveyard and after digging the ground the said accused Wahid Bux produced the gun. It is also the case of the prosecution that at the disclosure of the applicant Wahid Bux the said A.S.-I. Arrested co-accused Laiq in presence of the same Mashirs and secured the television. In support of the prosecution case the complainant Umaid All was examined alongwith P.W. Naban and A.S.-I. Shahid Ali, I.O.
4. ' The complainant said that he resides with his five brothers and that his brother Muhammad Nawaz owned a licensed gun of double-barrel. He owned a colour television 14" Sony Company- make. After watching T.V. Programme they went to sleep and the T.V. Was lying on the table at the courtyard. The gun of his brother was lying on a side. When they woke up in the early morning they then found them missing. They tracked the footprints of the thieves which led towards village, of Basham Rind and thereafter lost. In cross-examination he deposed that Ghulam Hyder is his cast- fellow Lashari. He deposed that coMashir Abdul Shakoor resides in Jalbani which is about 10/12 miles from his house. His brother Naban also deposed on the same pattern. Thereafter Shahid Ali was examined. According to his deposition when he arrested Wahid Bux applicant he volunteered and said that he had stolen the gun and the television. He went alongwith him to the graveyard and dug out the gun. He further deposed that Laiq Shaikh was given T.V. As his share. According to him the applicant Wahid Bux had so confessed before him. After examination of these witnesses the prosecution closed its side. The I.O. Who had recorded the statement of Mashirs was not examined. It is surprising that the Mashirs were not examined. The accused were examined under section 342, Cr.P.C. Complainant and his brother have not implicated the applicants. Mashirs of site were also not examined. In 342, Cr.P.C. Statements no question was put to the accused that the property recovered from them was within their knowledge that it was stolen.
5. ' I have heard Mr. Hidayatullah Abbasi, learned counsel for the applicants and Mr. Chaudhry Bashir Ahmed, learned counsel for the State and also perused the record.
6. ' The contention of Mr. Hidayatullah Abbasi, Advocate for the applicants is that the recovery by itself which again has not been proved in accordance with law is not sufficient for conviction under section 411, P.P.C. He further contended that the conviction and sentence is based upon presumption and the presumption howsoever strong it may be, cannot be equated with proof, and without positive proof, it cannot be said that the prosecution has established the case against the applicants warranting conviction and sentence. He further contended that the recovery has been made after nine months but the witnesses of recovery have not been examined and such fact was not taken into consideration by both the Courts below who convicted the applicants and maintained the same in appeal. Learned counsel for the applicants had relied upon the following judgments:
(1) Mushtaq Ahmed v. The State PLD 1996 SC 574.
(2) Muhammad Azam v. The State PLD 1996 SC 67.
(3) Mukhtar All v.,The State PLD 1971 SC 725.
(4) Hyder V. The State 1990 M LD 1116.
(5) Kamal v. The State 1972 PCr.LJ 26.
(6) Iltaf Hussain v. The State 1996 SCM R 167.
7. ' In the first case the principles of search have been highlighted by the Hon'ble Supreme Court and one such principle is as follows:
(vi) That there is also a marked distinction between a case in which a police officer is an eye- witness to the commission of an offence like a murder on a road where he is on duty and a case in which he is an Investigating Officer and as such becomes a Ma,shir to the recovery of a crime weapon. In the former case, his testimony is as good as of any other witness from the public, but in the latter case, in the absence of any justifiable reason not to make two or more respectable inhabitants of the locality as witnesses to the recovery, implicit reliance cannot be placed on the recovery if the same is challenged by the defence in the cross-examination."
8. ' In the case of Altaf Hussain v. The State 1996 SCM R 167. The Supreme Court of Pakistan, inter alia, ruled as follows: "Evidence of Police Officials as witnesses who are, in a way, the complainant, cannot solely be accepted to be relied upon to convict accused, especially when public witness was abandoned without rhyme or reasons."
9. ' Such principles have also been stated by the Supreme Court in PLD 1996 SC 67. Article 129 of Qanun-e-Shahadat Order deals with presumptions. However, it is well-settled principle of law that presumption howsoever strong it may be, cannot be equated with proof and without proof it is again well-settled principle of criminal law that the conviction cannot be recorded. In this case although the Mashirs of recovery have not been examined even if the deposition of Shahid Ali, A.S.- I. Is to be accepted (which in view of the law settled through above authorities is not safe to be relied upon) conviction cannot be sustained.
10. ' Learned State Counsel in view of the overall evidence on record and the weighty contention of the learned counsel for the applicant did not oppose this Criminal Revision Application. It is my considered view that in the instant case conviction cannot be sustained on presumption alone more particularly when the witnesses of recovery have not been examined and following the dictum Ph of Hon'ble Supreme Court in the above three quoted judgments it is not safe to rely upon the statement of police officer alone to sustain their conviction.
11. ' Since the impugned judgments are neither just nor prop= nor in accordance with law. I do not find any difficulty in holding that the impugned judgment ought to be set aside, therefore after hearing the parties in the open Court by a short order the above Criminal Revision Application was allowed and the conviction and sentence was set aside. The bail bonds were discharged. These are the reasons for such short order.
12. Revision .