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Criminal Revision No. 171 of 1968, decided on 30th December 1970.

S. 164 react with Evidence Act (I of 1872), S. 24‑Confession‑Extra judicial confession, made as a result of beating, subsequently retracted, and completely lacking in corroboration by some other evidence--Cannot form basis for conviction‑Trial Court merely stating that there was sufficient circumstantial evidence to connect accused with crime but not pointing out such evidence and dealing with case in a purfunctory manner‑Conviction of accused, held, not sustainable in circums tances‑Penal Code (XLV of 1860), S. 380.

M. R. Zafar for Applicant.

Manzoor Hussain for A.‑G. for the State.

Date of hearing : 9th December 1970.

This is a revision application against the ‑ conviction and sentence passed by the Additional City Magistrate, Karachi, acting as Juvenile Court. The applicant was convicted for an offence under section 380, P. P. C. and ordered to be sent to remand home for a period of 2 years tinder section 27 (1)(d) of the Bombay Children Act.

On 16‑7‑67 complainant Rahimuddin lodged first report at Garden Police Station, Karachi and it reads as under:-

" I reside in the house in Abdul Jabbar Compound and I was owner of hardware factory. I, on 9th July 1967 had gone to my in laws in P.I.B. Colony, along, with my children after locking my house and had given the key to my neighbour Mst. Ali Jehan. I had wrapped Rs. 13,600 in shape of currency notes, the description whereof is given below in a frock of my daughter, put the same in a box made of cardboard and then in a plastic bag and kept the same in one big suit‑case of mine and locked the same. On 11‑7‑1967, I returned along with my children and found all the articles at their places as usual. The box was also intact with the lock. On 13‑7‑1967, I felt need of some money. I then opened my box and found my money missing. I inquired from my neighbour, whereupon she replied that a boy named Sharif had come inside the house and Aslam and a boy, known as Hiro in the Mohallah had also come with him. I searched for them. They all the three were not found in the room. It was not known as to where they had run away. Yesterday night while searching, Rashid met me near the river. I caught hold of him and brought him to the Mohallah. On coming to the Mohallah, Sharif told in presence of Shamshoo, Bashir and Chanu and other people of the Mohallah that he in collusion with Aslam and Hiro broke open lock of the box in my house and committed theft of the above amount and that he had hidden the said amount, but the amount was not found there: We searched for Hiro anti Aslam. The Mohallah people caught hold of them and brought them. They pointed out the said place and search for the: amount was made in the whole compound but the amount .was not found. Hiro also pointed out. that place but the amount was not found. The Mohallah people also beat Hiro I. and my brothers Shamshuddin, Shahabuddin and Islamuddin had received Rs. 9,230 again9t our claims and the remaining amount of Rs. 3,370 was my own. The aforesaid amount was with me because we wanted to purchase a house and live all the brothers together. There were 12 notes each of Rs. 500, hundred‑rupee notes for Rs. 6,000 and the balance of Rs. 1,600 were in shape of 50 notes each of Re. 1 and the remaining notes were of Rs. 10 each.

My complaint against Sharif, Aslam and Him is for breaking open the lock of the box inside my locked house and committing theft of Rs. 13,600 in my absence. Investigation may be made."

On the, basis of this complaint the police resumed the investigation. Abdul Ghaffar was arrested and he took the police and the mashirs to his own house and produced the amount of Rs. 3,315 from the heap of stones. Mashirnama was prepared. After usual investigation Muhammad Aslam, Muhammad Sharif and Abdul Ghaffar were challaned After about a month the complainant filed a direct complaint against Rashid and Abdul Ghaffar and Chand Khan father of Rashid. The learned Magistrate issued process against Rashid who is the present applicant and also aliased as Hiro, the name which appears in the first report. Since Rashid was a minor he was tried by the Juvenile Court under Bombay Children Act. He proclaimed his innocence and denied having committed the theft or having made any confession before the witnesses. He examined two defence witnesses Abdul Ghaffar and Mukhtar who stated that they had found the complainant beating the applicant and others. The learned Magistrate after narrating the evidence of the various witnesses found the applicant guilty of the offence. The reasons given by the learned Magistrate may be reproduced and read as under:-

"There is sufficient circumstantial evidence on record to show that the offender who lived near the complainant's house committed theft of the cash regarding which police case was pending against his two companions Muhammad Sharif and Aslam before this Court. I shall not go into the details of the evidence already condensed by me in the foregoing paras as it would only entail waste of time but I held that Rashid did commit theft of the case and is, therefore, guilty of the offence under section 350, P. P. C.

From the reasons stated by the learned Magistrate it is plain enough that the so‑called sufficient circumstantial evidence has not been pointed out and the case had been dealt with in a purfunctory manner. The learned Magistrate paid no thought, to the value of the evidence which was produced in the case. The only evidence, as I have been able to discover from the record, is the retracted extra judicial confession of the applicant but this could hardly form the basis for conviction for twofold reasons in the first place it has been established by the evidence on record that the applicant was beaten and, therefore, any confession made as a result of beating is hit by the provisions of the Evidence Act and rendered inadmissible. Secondly the rule of prudence requires that any such confession in order to form the basis for conviction must be corroborated by some other evidence but that evidence is completely lacking in the present case. Thus it is in fact a case of no evidence and, therefore; the conviction of the applicant is not sustainable.

In the circumstances, I allow the revision application and set aside the conviction and sentence passed against the applicant.

Revision allowed.

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