' Bashir Ahmed and Sher Muhammad were convicted and sentenced under section 420, P. P. C. To undergo one year's R.I. Each by the learned Magistrate First Class, Kasur vide his judgment dated 29-9-1964. Their appeal before the learned Sessions judge, Lahore was dismissed on 11-11-1964 and their conviction and sentence was maintained. Bashir Ahmed has not filed any revision against his conviction and sentence, whereas Sher Muhammad has filed this revision petition.
2. The learned counsel for the petitioner has submitted that the conviction of the petitioner suffers from legal infirmity which has not been taken care of by the Courts below. It was urged that the offence would not fall under section 420. P. P. C. In any manner as this is only a case of recovery of stolen property. It was further submitted that even a case under section 411, P. P. C. Does not stand proved for the simple reason that no recovery of stolen property was effected from the petitioner or his co-accused. Therefore it could not be said that they were found in possession of a property which to their knowledge was a stolen property and was subject-matter of a theft.
4. I will deal with this legal aspect as pointed out by the learned counsel for the petitioners at a proper stage and will firstly give the brief facts of the case so as to see what offence is made out, if any, against the petitioners. The circumstances which lead to their prosecution are as follows :--- ' The petitioners are stated to have obtained three cycles on hire from the complainant Muhammad Ali (P. W. 1), a cycle dealer of Kot Murad Khan, Kasur, on 31st of March, 1963. The petitioners are charged for selling two of these three cycles to Idrees (P. W. 2) and Gohar (P. W. 3) for Rs, i00 and Rs, 120 respectively on 9th of April, 1963, under receipts Exhs, P. F. And P. G. As regards the third cycle, the case of the prosecution was that this was pawned with Mst. Halima Bibi (P. W. 6) and her daughter Karam Bibi (P. W. 7) for the price of eleven seers of ghee which they had purchased from these ladies. While leaving the cycle under pawn, the petitioners did not turn up as they had promised to do so, and the matter was reported to the C.
1. A. Police Chunian by Karam Din (P. W. Husband of Karama Bibi who produced the cycle before the police vide memo. Exh. P. K. On further investigation, the C. I. A. Staff learnt that the two cycles were in fact taken from Muhammad Ali (P. W. 1). This P. W. Was contacted and an F. I. R. Exh. P. A. Was secured from him by the C.
1. A. Staff on 19th of May, 1963. On the arrest of the petitioners, they are said to have led to the recovery of cycle P. 1 from the possession of Idrees (P. W. 2) and cycle P. 2 from Gohar (P. W. 3) on 13th of April, 1963. Under the recovery memos. Exhs. P. F./1 and P. G./1 respectively. These two persons from whom the actual recovery was made, produced receipts P. F. And P. G. Alleged to have been executed in their favour by the petitioners.
5. I have heard the learned counsel for the petitioner as well as the learned counsel for the State at length, and have perused the record of the case carefully with their assistance.
6. While reiterating to the preliminary objection as mentioned in the earlier part of my judgment on behalf of the petitioner, the learned counsel further submitted that the witnesses from whose possession the cycles were recovered, are unworthy of reliance for the reason that the receipts which they have produced in their favour on behalf of the petitioners were found to be forged one by the learned trial Magistrate and same was the view of the learned Additional Sessions Judge regarding the genuineness of these two documents while deciding the appeal of the present petitioners.
7. While leading through the evidence and the judgments of the two Courts below, the contention of the learned counsel on behalf of the petitioner is fully made out, as there has been held by them that both the receipts were found nothing but a piece of forgery on behalf of the prosecution to make out a fool proof case against the petitioners. Keeping this aspect of the case in view, the only irresistible conclusion would be that the prosecution in this case has made a hostile attempt by fabricating false evidence against the petitioner. This dare devil performance either on behalf of the P. Ws, or by the police would certainly make the veracity of the prosecution highly doubtful.
Minus these receipts, it cannot be said that these two cycles were sold by the petitioners to the two P. Ws. From whose possession these articles were recovered. If this piece of fabrication would not have been there in this case. I would not have hesitated to rely on the oral testimony of these two witnesses who obviously had not motive to falsely implicate the present petitioner, but their collusion in commission of this heinous offence disentitles them to be considered as truthful witnesses. It is also very difficult to accept that Mst. Halima Bibi would start agitating within a short period of four days when she did not find the petitioners coming back and paying for the ghee which they had purchased from her. This story on the face of it looks highly improbable as well as unnatural for the reasons that why should Mst. Halima Bibi get jumpy when she had in her possession a property of much more value pawned with her against eleven seers of ghee which would hardly worth Rs,
50. To my mind it seems that the Investigating Authorities have tried to link number of witnesses with each other to make out a case of a committed theft and a recovery of stolen property which was wrongly titled as an offence under section 420, P. P. C. A reading of section 420, P. P. C. Would make it clear that this involves the element of cheating by which a person who cheats, makes a wrongful gain and causes a wrongful loss to his victim. In the instant case, the story of to the prosecution is that the cycles were taken on hire and later on were not returned, where for, the remedy if at all, was a civil remedy and not a remedy under the criminal law. The person from whom the cycles had been hired, had delivered the property for consideration to be retained by, the petitioner or anyone else who had taken the same to use it and then" to return it. If the property has not been returned, the course open to him would be to seek the recovery of cycles or the value of the same by lodging a suit in a Court of competent jurisdiction. It seems that this aspect the case has escaped notice of the two Courts below who have readily accepted the offence as having been committed under section 420, P. P. C.
8. The result is that in view of the positive attempt of the commission of forgery by producing two foreged receipts on behalf of the petitioner, the prosecution has damaged its case beyond repairs.
1, therefore, do not consider safe to rely on this tainted evidence for conviction of the petitioner. I accept the Revision petition and set aside the conviction and sentence of the petitioner. He is on bail bond and will stand discharged of the same.