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Criminal Appeal No. 12 of 1968, decided on 19th June 1968.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench; Peshawar, dated the 27th January 1967, in Criminal Appeal No. 169 of 1966).

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---S. 409‑Court below accepting evidence of complainant as reliable‑Interference not called for Special Leave to Appeal refused by Supreme Court.

K. B. Ch. Riasat Ali Khan, Advocate Supreme Court instructed by Wajid Hussain, Senior Attorney for Appellant.

Asad Hussain Zaidi, Advocate Supreme Court instructed by Ijaz Ali, Attorney for the State.

Date of hearing :19th June 1968.

‑This Criminal Appeal by special leave is directed against the order of a learned Single Judge of the High Court of West Pakistan at Peshawar, dismissing art appeal with some modification preferred by the appellant against an order passed by the Senior Special Judge, Peshawar, convicting him under section 409, P. P. C. and sentencing him to simple imprisonment for one year. The learned Single Judge, affirmed the conviction but reduced the sentence of the appellant to the period already undergone and a fine of Rs. 500 or in default three months further simple imprisonment.

On the night between 19/20‑11‑1963, Captain Muhammad Shafi, the complainant, was travelling in Khyber Mail from Rawalpindi to 1Vowshera in a second class compartment. He did not wake up when the train reached Nowshera and as a result was carried over to Peshawar. He was waiting for another train which was due to leave Peshawar for Nowshera. A ticket Collector approached him and made some inquiry and he explained the position to him. The railway official asked him to pay rupees four and a few annas as excess fare. The Captain gave a five rupee note but the official said that he should sent the Quli' who had been engaged to carry his baggage, to get the balance and the receipt for the excess fare. The Quli' went and brought eight annas but did not bring the receipt. On his return to Nowshera, Captain Muhammad Shafi was told by the railway officials that the excess fare had been illegally charged. Captain Muhammad Shafi then went to Peshawar and made a complaint to Railway Police. After investigation the police challaned the appellant.

Leave to appeal was granted in this case to consider whether the identification of the appellant in the Test Identification Parade by the complainant in view of the admission of Aslam, the Quli' that he had pointed out the appellant to the com plainant before the said Parade could form the basis of the appellant's conviction.

The trial Court found that there was no reason to disbelieve Captain Muhammad Shafi, who was a dis‑interested person so far as the accused was concerned. The learned Single Judge in the High Court has observed‑

"The complainant is a responsible military officer and he had no grouse, whatsoever, against the appellant for being picked out for a serious charge of embezzlement if it were not true. 1 he question of mistaken identity also cannot prevail in that the complainant could have no difficulty to identifying the person who was over‑charging him in particular when it is expected that he must have told him that he was an Army Officer and he had over‑slept and had been carried to Peshawar. In the result, the conviction is well founded."

The learned counsel for the appellant has contended that in view of the admission of Muhammad Aslam that he had pointed out the appellant to Captain Muhammad Shafi before the Test Identification Parade the evidence of the latter that he was able to identify the accused as tile man to whom he had paid the money should not have been accepted. Captain Muhammad Shafi denied that the appellant was pointed out by the Quli'. The Courts below have accepted the evidence of Captain Muhammad Shafi and it is not for this Court to interfere with this finding.

The appeal has no merits and is accordingly dismissed. The order staying the recovery of fine is vacated.

Leave refused.

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