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Criminal Appeal No. J‑440 of 1968, decided on 17th January 1969.
S. 411‑Stolen property --No convincing evidence that articles allegedly recovered from person of accused were stolen articles‑Conviction and sentence set aside.
--Appeal (criminal)‑Cases involv ing short term imprisonments‑To be fixed for hearing as expeditiously as possible.
Appellant through Jail.
Murtaza Hussain for A. A.‑G. for the State.
Date of hearing : 17th January 1969.
Hashmatullah son of Azmatullah, aged 72 years, appeals through jail against his conviction under section 411, P. P. C. and sentence of six months' R. I. and a fine of Rs. 500 or in default 3 months' further R. I., recorded Mr. A. A. Dereshani, Additional Sessions Judge, Karachi, by his judgment dated 31‑7‑68.
2. The facts, giving rise to this appeal may be stated thus‑‑
On 23‑12‑64 Mst. Afsar Jehan (P. W. 10), wife of Ausaf Ahmad Qureshi, S. D. O. Telephone Department (P. W. 9) was washing clothes at about 11 a.m. in her house situate in 5‑D, Nazimabad, Karachi. Her niece Miss Yasimin (P. W. 14) and her three children were also present in the courtyard. Five persons, one of whom was carrying a pistol and another a knife, entered the house and surrounded her. All of them asked her to hand over the keys. The miscreants then made all the inmates of the house enter into the bath room and one of them stood as guard at the door with an open knife. The other accused started ransacking the house. The accused carrying pistol went several times to Mst. Afsar Jehan to inquire from her about the place where the cash and ornaments etc. were lying. She naturally obliged him by giving him the required information. The miscreants ultimately asked her to hand over to them whatever cash and ornaments she had on her person. She allegedly gave them 8 golden bangles, one necklace and a ring, which she was wearing at the time and cash amounting to Rs. 70 or 80. The miscreants closed the door of the bath room and went away. One of the companions of the miscreants was allegedly standing outside, keeping a watch.
3. Mst. Afsar Jehan after making sure that the miscreants had retreated, raised a hullah and some passerby opened the door. On coming out she found that the goods were lying scattered on the ground, two of the almirah lying open and the telephone wire had been cut. She went to the house of her neighbours to ring up her husband, who was in the office at that time. The husband, however, came to the house when he was appraised by the lineman that a theft had been committed in his house. He reached his house at 12‑30 and after being appraised of the occurrence by his wife he lodged the F. I. R. Exh. 17 at 1‑25 hours, at Police Station Nizamabad, which was recorded by S. A. Rauf S. I. (P. W. 11), giving the prosecution story as indicated above. It is, important to observe here that in report he had only mentioned that 8 golden bangles and a gold necklace were removed by one of the accused who was holding a knife from the person of his wife. In regard to the other property he had stated that on inquiry from his wife he would "submit complete list of the articles stolen."
4. It may be mentioned at this stage that the Mashirnama, Exh. 23, was prepared by S. A. Rauf, S. H. O. (P. W. 11) and in this at about the end it is mentioned that "the accused committed theft of the ornaments from the iron safe, a transistor, made in Japan and a camera from the almirah of the verandah, a wrist watch, Camy, and gold ear‑ring and went away from the main gate".
5. The appellant was arrested on 31‑1‑65 at about 8‑15 p.m. by Wahejul Hai (P. W. 3), who had received a spy information that he was allegedly carrying a bundle containing some articles. The description of these articles is given in the Mashirnama (Exh. 7) as follows:‑
"(1) One Transistor Radio, Shorp, in a brown leather cover, on the inner back side of which is written in English Shorp' 2 Band Transistor Model BXS. 330 No. 136101, made in Japan is written thereon", valued at about Rs. 450.
(2) One small Transistor Radio on the back side of which is written "CROWN" Model T. R. 690" in English and in golden letters 36499' is written on the inner side, contained in a brown leather cover, valued at about Rs. 200.
(3) One camera, black, having written in English YASHICA MAT' No. M. T. 2080318' with leather cover, valued at about Rs. 1600.
(4) One Flash Master camera, black having WALZ' written thereon in English with brown leather cover, valued at about Rs. 150.
(5) One Mike Tape Recorder, Grindik along with plastic case, valued at about Rs. 125.
(6) One Radio, General Electric Phillips with wooden brown case, used, having No. 51565, 220 Volts, made in U.S.A. valued at about Rs. 400."
These articles were identified after 12 days, namely, on 12‑2‑65, in an identification parade by Mr. Ausaf Ahmad Qureshi (P. W. 9), husband of Mst. Afsar Jehan. It will be convenient here to reproduce the following excerpt from the statement of Mr. Ausaf Ahmad Qureshi (P. W. 9):‑
"About 7 or 8 months after the occurrence the police informed me that I had to go to the Court of Magistrate for identifying the property recovered. I was then taken to the Court of Magistrate where I was shown the articles. I identified a SHORP transistor Radio, a smaller pocket transistor Radio, a Japanese Camera Yashica Mat, a Tap Recorder Microphone, a camera flash gun. I see two transistor radio flash gun and camera and microphone, articles 2 to 6 in the Court and state that they are the same which I had identified.
About six months later I was again taken to the Court of the Magistrate where I was shown some articles, On that occasion I identified a Camy Watch which belong to my wife. I identified also the chain which was of Fixo flex make. I see article 1 in the Court and state that it was the same. I purchased this watch for my wife from the English Watch Co., Elphinston Street, Saddar during the year' preceding the dacoity. On both the occasions the things which I had identified were mixed up with other articles. I had produced before the police the cash memo. which I had obtained for the price paid by me for the articles stolen (sic) my house. I produce a cash memo for purchasing the Grunding Tape Recorder with microphone for Rs. 1,000 Exh. 18. I had purchased the camera and the flash gun along with other articles from International Studios Bunder Road. I produce the cash memo. obtained by me on that occasion, Exh. 19. I see Exh. 4 and state that it is a cash memo. for the Camy Watch purchased for my wife. I had purchased the pocket transistor radio for Rs. 185 and produce the cash memo. Exh. 20. I had misplaced the cash memo. for the bigger transistor radio. I had obtained custody of these articles on superdnama."
6. Muhammad Iqrar accused, who had died during the proceeding in the trial Court, was arrested on 17‑10‑65. From his possession one lady watch was recovered.
7. Aziz Ahmad (P. W. 6), a taxi driver was produced. He admitted that he gave his statement to the police about 2 months after the occurrence. He stated that 4 of the 5 accused had engaged his taxi and the appellant also wanted to board the taxi but he was not allowed to do sound he had engaged a rickshaw, and he had to wait for them some where near the scene of occurrence and when they returned, they were carrying a bundle and on return journey all the accused including the appellant had been taken. The learned trial Court disbelieved his evidence and I think very rightly too.
8. I have been taken very elaborately through the material evidence by the learned counsel for the state (Mr. Murtaza Hussain), and on careful perusal of the evidence. I am of the view that the case has not been proved beyond reasonable doubt against the appellant. As already indicated, the only articles, which were mentioned in the F. I. R. are the 8 golden bangles and a gold necklace, which had not been recovered from the appellant, and there is no mention in the F. I. R. of other articles. In the Mashirnama, as already stated, a mention has been made of the articles referred thereto, but even in the Mashirnama neither the make nor the date of the purchase, muchless that the same were purchased by Ausaf Ahmad Qureshi from a particular dealer on the basis of receipt was mentioned. I asked the learned counsel for the State whether any list of stolen property was submitted as stated in the F. I. R., but he was not able to point out the same to me, and at any rate the same has not been exhibited and plated on the record, with the result that even if there was a list in the police zimni it is of no assistance to the prosecution. I need not enter into the discussion with regard to the value of admissibility of a list of stolen property, which is given to the police, in particular in a case where the owner of the stolen property as in the instant case himself lodged the F. I. R. where he could easily mention the particulars of the missing property. The appellant his been convicted not for being a member of the party which had committed dacoity, but under section 411, P. P. C. The conviction under that section can be sustained only when the prosecution has led a convincing and cogent evidence that a particular article had been stolen away in a robbery, dacoity or the theft, since there is no convincing evidence, that the articles allegedly recovered from the person of the appellant were the articles belonging to the complainant and that the same had been stolen away by the miscreants on 23‑12‑64, the conviction of the appellant cannot be sustained. I accordingly accept the appeal, set aside his conviction and sentence and acquit him. He shall be released forthwith, if not required in any other case.
9. It is indeed disquieting to note that the case, for one reason or the other, could not have been finally disposed of till the appellant bad actually undergone six months' imprison ment, and he was undergoing imprisonment in lieu of fine. I am aware of the congestion of the work, but the liberty of citizens is a very precious thing, and, therefore, in cases where short term imprisonment are involved, they should be fixed for hearing as expeditiously as possible. I would, therefore, suggest that the office should put up a note to the Senior Judge for orders that in cases of short term sentence, very short dates should be given, and that the office may also be authorised to place before a single Judge the cases for considering the grant of bail suo motu.
Appeal accepted.
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