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Criminal Petition for Special Leave to Appeal No. K-44 of 1967, decided on 15th February 1968.

(On appeal from the order of the High Court of West Pakistan, Karachi Bench, Karachi, dated the 9th June 1967, its Criminal Revision Application No. 113 of 1967).

, S. 253-Discharge of accused-Supreme Court ordinarily does- not interfere with in its special jurisdiction-Special Leave to Appeal, however, granted by Supreme Court where valuable property claimed by complainant had been duly recovered and identified by complainant and his wife in course of investigation under supervision of a Magistrate but still accused had been discharged and property made over to him for reasons not relevant-Property pending appeal ordered to be taken back from accused and he was ordered to furnish bail for appearance at hearing of Appeal.

Petitioner in person.

Kazi Akhtar Ahmad, Additional Advocate-General West Pakistan Muhammad Haleem, Assistant Advocate-General West Pakistan with him) instructed by Ijaz Ali, Attorney for Respondent No. 2.

Nemo for Respondent No. 1.

Date of hearing: 15th February 1968. .

Ordinarily, a case such as this is not regarded as one attracting the special jurisdiction of this Court in criminal matters. But there are features of this case which, in our opinion, justify further examination of the evidence, to ensure that justice has been properly dispensed. Valuable property, consisting of ornaments and clothes which are claimed by the complainant, and were duly identified by him and his wife under the supervision of a Magistrate in the course of the investigation, and as to which there is evidence of a Police Officer and a mashie that they were recovered from places of hiding and produced by the accused, have been made over to the latter ax a result of the discharge.

The story is that Abdul Ghafoor and his wife Banno Begum, who belong to Peshawar, came to the accused at Karachi and stayed in some rooms with them, in the Minar Hotel, Martin Road. This was on the 29th April 1966. On the night of the 22nd June 1966, Abdul Ghafoor and his wife returned to the hotel at about 9 p.m. The wife put her ornaments in a trunk with their other things, which included clothes and Rs. 1.600 in cash. Mst. Anisa Begum, sister-in-law was aware that the ornaments were in the trunk. She and Hamid Ali slept in the room where the trunk was kept, while Mst. Banno Begum and Abdul Ghafoor slept in the adjoining room. There was total trust between them, as Abdul Ghafoor was brought up in his childhood by Bunyad Ali brother of Hamid Ali, in Peshawar. In the morning, a boy woke Abdul Ghafoor and his wife up and said there had been a theft from their trunk. They saw the kunda of the trunk was broken, and the contents were scattered about. Their money, ornaments and valuable clothes were missing. The appearance was of a theft.

It was for Hamid Ali to report the theft as the rooms were his. He made no attempt to do so, and it was not until 11-30 p.m. that night that Abdul Ghafoor went to the Thana, taking Hamid Ali with him, and made the report. He suspected Hamid Ali, Anisa Begum and one Zahid Ali. Details of the missing articles were separately furnished. There were delays in investigation, and Abdul Ghafoor complained to the D. I: G. Police, and as a result, the investigation was made over to the C. 1. A. Police on the 9th July 1966. On the 12th July Zafar lqbal A. S. 1. of the C. I. A. Police interrogated Hamid Ali, who allegedly produced a plastic bag containing the missing ornaments from a gutter of a latrine, and later, produced the missing clothes from inside the springs of a sofa in the quarters. They were correctly picked out from other similar articles by Abdul Ghafoor and his wife at a proper test conducted by a Magistrate.

The order of discharge expresses disbelief in the entire story of Abdul Ghafoor. Hamid Ali's own case was that he had offended Abdul Ghafoor by ordering him to leave his quarters, on account of his misbehaviour. On the 23rd June, when leaving, Abdul Ghafoor threatened revenge. The same night at 2 a.m. he turned up with some Police Officers, who asked about a theft. He pleaded ignorance. On the 11th July Abdul Ghafoor again came with C. I. A. Police, who took him to their office and maltreated him. The things recovered all belonged to him, and had been taken out of his box by the police in his absence.

This completely falsifies the evidence of the F. I. R. made on the night of the 22nd June, of the investigation and recovery by Zafar Iqbal, besides the evidence of Abdul Ghafaor and his, wife. It has been accepted by the trial Magistrate on such grounds

as-

(1) the complainant mentioned in the F. 1. R. the name of a shop in Rawalpindi from which he had bought the ornaments, but produced receipts from a different jewellery shop in Rawalpindi ;

(2) the list of missing articles was not given with the I . 1. R. or to the Police Station, but only at the C. I. A. office many days later; the statement by the S. H. O. that it was given to him is false;

(3) the ornaments and clothes bear no special marks ;

(4) Abdul Ghafoor's statement that he went to the Thana at 8 a.m. is false because the report was recorded at 11-45 Rm.;

(5) the mashirs of the recovery , were not residents of the

locality ;

(6) Abdul Ghafoor made some false statements about his earlier relations with Hamid Ali ;

(7) it was highly unlikely that the things would have been left in the gutter and inside the sofa from the 23rd June to the .

12th July;

(8) Abdul Ghafoor is related to one lrshad Ahmad who works in the D. I.-G.'s Office, and the A. S. I. Zafar Iqbal was possibly under the influence of Irshad Ahmad.

Some at least of these reasons are not clearly relevant. The delay in reporting is easily understandable, for it was Hamid Ali's duty to report. Signs of a theft were seen by the S. H. O. e.g. that the kunda of the trunk was broken. The list given to the S. H. O. was a different one from that given at the C. I. A. Office. The total disbelief in the evidence of two responsible Police officers, and in a respectable mashir, is hardly justifiable. The appearance of Police officers at Hamid Ali's quarters on the night of the 22nd June is an indication that something had happened that day.

The petition is supported by the Additional Advocate General appearing for the State. We accordingly grant leave to appeal as prayed. We direct also that immediate steps should be taken by the Police to recover from the possession of Hamid Ali, the ornaments and clothes which were delivered to him in conse quence of the Magistrate's order. He will be required to give bail for his appearance at the hearing of the appeal to the satisfaction of the District Magistrate.

Early hearing.

Leave granted.

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