' A news item published in Daily Newspaper Khabrain, Lahore was gone through by me while travelling in P.I.A. Flight No,387 on 23-2-1999, which reached from Lahore to Multan at 5-00 p.m.
With the Courtesy of the Officer present in the aeroplane, I obtained the newspaper.
2. The news item was to the effect that a young boy named Ghulam aged 9 years has been booked in a theft case of 2 kilos of cotton by the police, Police Station Alpa, District Multan who was arrested on 21-2-1999 and the police wanted to send him io the judicial lock-up. The learned Area Magistrate admitted the accused to bail.
3. In compliance of the direction passed by this Court Mr. Faiz Muhammad Qureshi, D.S.P. (Legal), Multan, Muhammad Sharif, Inspector/ S.H.O., Police Station Alpa, Multan, Muhammad Mushtaq, A.S.- I. Police Station Alpa, Multan and Muhammad Aslam complainant appeared on 26-2-1999. The file was gone through and the matter was fixed for 2-3-1999 for arguments.
4. Muhammad Aslam complainant made his statement before Rab Nawaz, A.S.-I. Police Station Alpa, Multan on 8-12-1998 while he was on Gasht of the area wherein he expressed that he was a Zamindar of Chah Bhirki Wala where he had cultivated the cotton crop in field No,11 of Square No,26.
He has got picked the crop for once. Thereafter, his crop was stolen for much time. He started Chowkidara. On the night falling between 28/29-11-1998 he had gone to watch the cotton crop. At mid night some persons were found present in his cotton crop. He raised the Lalkara. Zahoor son of Rab Nawaz as well as Muhammad Ramzan and Ghulam sons of Allah Ditta were making theft of the cotton who fled away leaving 30 kilos of cotton at the spot. His alarm attracted Muhammad Ramzan and Liaquat P.Ws. Who saw the accused persons. On the basis of the aforesaid complaint formal F.I.R. No,452, dated 8-12-1998 was registered at Police Station Alpa, Multan under section 379/411, Pakistan Penal Code. Rab Nawaz, A.S.-I. Recorded the statements of the P.Ws. And prepared the site plan. He made the entries in the case diary wherein he expressed about the taking into possession of 30 kilos of cotton vide memo. On which the names of the accused persons are not mentioned against that place the word versus is narrated. Even on the site plan it is not mentioned as to against which accused person the case has been registered.
4. Ghulam accused is present before me and after looking at him I would give my view that he is not more than the age of 10 years. On 22-2-1999 he was produced before Mr. Fazal Ahmad Naseem Gondal, Civil Judge 1st Class/ Judicial Magistrate, Section 30, Multan who specifically recorded that "admittedly the recovery memo. Is not on the case file". Initially the order was passed by the learned Ilaqa Magistrate for remitting Ghulam accused to the judicial lock-up. However, afterwards he was admitted to bail. The two co-accused have not been arrested.
5. During the proceedings Muhammad Aslam complainant intimated that Allah Ditta, father of Muhammad Ramzan and Ghulam accused is his paternal-nephew being a son of his real brother Rab Nawaz while Zahoor accused is the son of his real brother Rab Nawaz.
6. I have heard the learned counsel for the parties as well as learned Additional Advocate-General and gone through the record before me. There is no need to reproduce their arguments. Suffice it to express that the recovery memo. About the taking into possession of 30 kilos of alleged stolen cotton was not the part of the file when Ghulam accused was produced before the learned Ilaqa Magistrate to obtain his judicial remand. This fact is specifically mentioned by the learned Ilaqa Magistrate in his relevant order, dated 22-2-1999. Even though the fact of preparation of recovery memo. Is mentioned in the statements of the P.Ws. As well as the case diary, I hold that the non- production of the recovery memo. Before the Ilaqa Magistrate along with the police file has gone to the root of the case. The recovery was effected before the registration of the criminal case.
Allegedly the occurrence took place on the night falling between 28/29-11-1998 while the case was registered by the police on 8-12-1998 with a considerable delay. The alleged stolen property is said to have been produced before the Police Officer, but he seems to have not prepared the recovery memo. Even though he mentioned the said fact in the case diary as well as in the statements of the P.Ws. Recorded under section 161 of the Code of Criminal Procedure. This is the crux of the matter and this aspect has stolen the eminence to make me hold that the case is false. Whole of the prosecution case has its foundation on the recovery of the cotton crop and it is simply strange that the recovery memo. Was not produced along with the police file before the learned A Area Magistrate. As such it can be held that the recovery memo. Was prepared afterwards and, thus, the alleged fact that the accused persons left the cotton at the spot while making good their escape has become non-existent. The cotton could be produced before the Investigating Officer by Muhammad Aslam complainant as he is owning the landed property wherein he is said to have sown the same. Without the recovery memo. The fact of leaving the cotton crop at the spot by the accused persons cannot be given the weight. This aspect is enough to make me hold that the accused persons are not criminally liable. An important aspect of the matter is that in this part of the Province in important matters even the F.I.Rs, are not lodged and even the assistance of this Constitutional Court is obtained by the complainants and such a petty matter was registered by the police at the instance of Muhammad Aslam complainant against his close relatives namely Zahoor son of Rab Nawaz as well as Muhammad Ramzan and Ghulam both sons of Allah Ditta. This speaks of the mala fides on the part of Muhammad Aslam complainant as well as Police Officer named as Rab Nawaz, A.S.-I. Who is said to have been transferred to another place. It is important to note that in recovery memo. The name of any of the accused is not mentioned which is an important fact and it can be safely expressed that the forged recovery memo. Was got prepared afterwards. Hence prosecution case has fallen as house of cards.
7. For what has been said above, through this suo motu action, I quash F.I.R. No,452 registered on 8- 12-1998 at Police Station Alpa, Multan under section 379/411, Pakistan Penal Code. Ghulam accused is present before me on bail whose bail bond is cancelled and surety, discharged.
F.I.R. Quashed.