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Criminal Reference No. 2 of 1972, decided on 1st August 1972.

S. 182---False information Accused's first information report that his servant decamped after stealing some money and medicines although found ---false by police servant's disappearance after incident consistent with informant's allegations---Prosecution evidence not only insufficient but also contradictory-Some witnesses not supporting prosecution case while others speaking only about conduct of servant---Complainant's servant root examined at trial---Motive alleged that accused filed false case because he did not want to relieve him from service-Hardly sufficient to establish falsity of report-Conviction set aside.

Osman Ghani, Asstt. A.-G. for the State.

Aziz Dastagir for Respondent.

Date of hearing : 1st August 1972.

This is a reference by the learned Additional Sessions Judge, Karachi, with a recommendation to set aside the conviction and sentence passed against Dr. Nisar Ali.

Dr. Syed Nisar Ali is a medical practitioner and had engaged Abdul Rauf as his compounder. Dr. Syed Nisar Ali sent a written application dieted 20th August 1968 to the police that he had given the keys of his clinic to Abdul Rauf to open the clinic but the took away Rs. 650 cash and some medicine from the clinic leaving behind Hashim Bhai there, and thereafter he never turned up. Later he came to know that Abdul Rauf had joined the army. On his application the police resumed the investigation and found the case to be false and, therefore, filed a complaint under section 182, P. P. C. against Dr. Nisar Ali. He was tried and convicted for that offence. The sentence passed against him was a fine of Rs. 50 or in default to undergo simple imprisonment for 7 days. Aggrieved by this Dr. Nisar Ali filed a revision applica tion in the Sessions Court. The learned Additional Sessions Judge made the present reference to se: aside the conviction and sentence as according to him there was no sufficient evidence on the record to establish that Dr. Nisar Ali had filed a false report. It was also pointed out by the learned Additional Sessions Judge that even the statement of Abdul Rauf was not recorded and, therefore, it could not be possible to find that the complaint was false.

At the trial 10 witnesses had been examined. I have gone through their evidence which shows that Abdul Rauf had in fact opened the clinic as alleged by Dr. Nisar Ali and, thereafter he went away without waiting for the doctor and never returned. Subsequently he joined the military service. The disappearance of Abdul Rauf in these doubtful circumstances is not inconsistent with the allegations made by Dr. Nisar Ali. The evidence tendered by the prosecution to establish the falsity of the report is not only insufficient but contradictory and no reliance could be placed upon their evidence. Prosecution witness No. 1 had stated that on the day of the incident Abdul Rauf had opened the dispensary a 8-30 a. m. and asked him to stay there as he was going to Keamari for some time, but did not return till Ur. Nisar Ali arrived. He further stated that he had not seen anything with Abdul Rauf while he was leaving. After 2/3 days he learnt from Dr. Nisar Ali that Abdul Rauf had committed his theft. The evidence of prosecution witness Nos. 7 and 8 are quite different. It is stated by them that Abdul Rauf had told them on the previous evening that he wanted to join military service and on the next day they again met Dr. Nisar Ali who after much discussion agreed to relieve Abdul Rauf and also paid him arrears of pay. This is no only inconsistent with the evidence of the first witness but is also ridiculous as when Dr. Nisar Ali agreed to relieve Abdul Rauf1 there was no reason for him to file a false case against him. Some of the retraining witnesses did not support the prosecution while others only spoke of the conduct of Abdul Rauf. So it is no necessary to refer to their evidence. Abdul Rauf against whom the report was lodged was never examined at the trial. The entire evidence was sought to establish that Dr. Nisar Ali was reluctant to relieve Abdul Rauf and since he left him a false case was filed. This can hardly be sufficient to establish the falsity of the case in order to sustain the charge.

In the result, I accept the reference and set aside the convic tion and sentence passed against Dr. Nisar Ali. Fine, if paid be refunded to him.

Reference accepted.

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