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Criminal Appeal No. 313 of 1970, decided on 27th November 1972.

‑‑ S. 392‑Robbery‑Benefit of doubt F. I. R. lodged after two days and prosecution allegedly concepted at instance of Sub- Inspector, Police, inimical to accused appellant a police constable-- Persons allegedly robbed under influence of S. I. P.‑Offence committed at place of duty‑Neither duty register nor incharge place of duty produced to prove presence of accused at place of occurrence‑Allegation of enmity lending support to weakness of prosecution evidence in circumstances of case‑Accused given benefit of doubt and acquitted.

Hassanally A. Rahman for Appellant.

Habibur Rashid for the State.

Date of hearing: 27th November 1972.

This appeal under section 410, Cr. P. C. is directed against the judgment of learned Sessions Judge, Hyderabad dated 30‑7‑1970, by which the appellant was tried for offences under section 392, P. P. C. and sentenced to three years' R. I.

2. Briefly the facts are that an F. I. R. was lodged by Habibullah at Cantonment Police Station on 12‑9‑1966 at 3 p.m. stating that at 10 a.m. he and one Khuda Bux went together to Jamshoro Bridge No. 1 for a walk. They got down at the corner of the bridge where two Constables were standing. While they were visiting the bridge they heard whistle and a tall Policeman came from the back side and he started beating them and they told them that why they had come to prohibited area. They took them to the farther corner of the bund in a landhi, which was lying vacant. The appellant searched the complainant's person and took out Rs. 20 from his pocket in currency notes. Thereafter, he searched Khuda Bux and took Rs. 40 from his pocket in currency notes and asked them to go otherwise they will be put into Jail. However, on complainant's request that Khuda Bux had to return to Karachi, the appellant returned one 5 rupee note to the complainant and another one to Khuda Bux. The com plainant allegedly narrated this fact to his brother Muhammad Ibrahim who in turn called Jan Muhammad and narrated the facts and thereafter they all four went to Jamshoro Bridge and showed him the tall constable, who on seeing them went in the room. His Buckle number was 1648. l hey returned to Hyderabad and next day being a Sunday they did not report the police but on Monday all the four went to D. S. P. and reported the matter who deputed one Subedar Muhammad Younus of D. I. B. to accompany them. They went to Jamshoro and pointed out the Constable to Subedar who knew him already as Shah Muhammad Buckle No. 141. There another Constable with the appellant was also present whose name was Ali Akbar. The complainant, however, has no grudge against him, as this Ali Akbar is not supposed to have maltreated them. Thereupon a case of robbery was set up against the appellant and was sentenced as above.

3. The ease of the prosecution is based mainly on evidence of P. W. Khuda Bux and P. W. Habibullah of whom the latter has died during the pendency of this case. Both these witnesses implicated the accused saying that he had beaten them and robbed them Rs. 20 and Rs. 40 respectively inside the but which was used as a Police Guard‑room at Jamshoro Bridge. They however, stated that the appellant returned Rs. 5 to each of them on their request that they had no money for return fare. They claimed to have no prior acquaintance with the appellant. The accused was pointed out by them to S. I. P. Muhammad Younus on 12‑9‑1966 i.e., two days after the occurrence. These two P. Ws. are alleged to have told about the incident to Ibrahim and Jan Muhammad on 10‑9‑1966, two days prior to the filing of the F. I. R. and took them to bridge and showed them the Guard‑room, on that day the appellant was not present at that moment; therefore, Jan Muhammad and Ibrahim had not been pointed out by the complainant the appellant on the day of incident according to the statement of these two P. Ws.

4. 1 have heard Mr. Hassanally A. Rahman, Advocate for the appellant and Mr. Habibur Rashid, Advocate for the State. It was argued by counsel for the appellant that conviction of the appellant was bad on the sole testimony of the two witnesses i.e., Khuda Bux and Habibullah who are closely related to each other and that the trial Judge has failed to consider the manner in which the investigation of the case started. It was not warranted by law and the manner in which the appellant was identified is open to serious objection and has no legal evidentiary value and that the prosecution has failed to examine the Superintendent of Police, Hyderabad and other constables who are posted in the Guard‑room with the appellant, to show that whether in fact the appellant was on duty on that day and also the prosecution failed to produce the register which must have been kept in the Guardroom to show the entry of the appellant and Akbar Ali on duty on the particular day and time which lapsed it was argued by itself creates sufficient doubt with regard to the veracity of the prosecution case. It was further argued that the F. I. R. has been lodged after two days and that the undue delay is not satisfactorily explained and that the plea of the appellant that he was implicated by S. I. P. Muhammad Younus who was on inimical terms with him could not have been rejected by the learned Judge in view of the evidence to show that the appellant did work as a subordinate for sometime of P. W. Muhammad Younus. I find sufficient force in the arguments of the counsel for the appellant because P. W. Muhammad Younus the S. I. P., was not an eye‑witness of the incident. He had accompanied the complainant after two days of the incident and he admits that he found the accused appellant there in plain clothes and off duty on 12‑9‑1966 and that appellant did work under him as a foot‑constable at Tando Bago. It was on his direction he states that F. I. R. was lodged by Habibullah, after coming back and being shown the accused at the bridge. He admits in his cross‑examination that he did not talk with the appellant neither the complainant had talks with the appellant when he was pointed out to him by them on 12‑9‑1966 and he was pointed out at a distance of the Guard room. He ‑denied however, the suggestion in cross‑examination to have reported against the appellant during his tenure of service at Tando Bago and also denied that he had given the name of the appellant to the witnesses.

5. The accused in his statement under section 342, Cr. P. C. denied the charges. As to the question why the witnesses have given evidence against him stated that they are under the influence of Sub‑Inspector Muhammad Younus who is on inimical terms with him. He goes on to state that he served as a subordinate at Tando Bago 6‑7 months before this incident. He used to tell him to bring him wine with appellant's own money. He quarrelled with him, he approached the S. P. and got himself transferred to the Police Lines. On account of enmity he has concocted this case against him. Habibullah and Jan Muhammad used to reside within the jurisdiction of Phuleli Thana, and Muhammad Younus was the S. I. of Phuleli before he was transferred to D. 1. B. Habibullah and Jan Muhammad were under his influence. Jan Muhammad was his tout while he was at Phuleli Thana.

6. From the evidence of P. W. 3 Muhammad Younus S. I. P. and P. W. 4 Inayatullah, Sub‑Inspector, D. 1. B. Hyderabad, it appears that the allegations made by the appellant against P. W. 3 Muhammad Younus are not wholly without foundation, firstly it is only P. W. Muhammad Younus who gave the name of the appellant and identified him as Shah Muhammad to the complainant party and it is he on whose direction the F. I. R. was lodged, In cross‑examination this witness states that S. P. directed Sub‑Inspector Inayatullah to take up the investigation against the appellant while P. W. 4 Inayatullah stated in his cross‑examination that orders of S. P. were conveyed to him by S. I. Muhammad Younus and be did not contact the S. P. but carried out his orders that were conveyed by Muhammad Younus. This P. W. Inayatullah states that Khuda Bux has stated before him that he did not know how much money did the accused take from his pocket but there were some notes and this witness is however, not sure whether he secured the Guard‑room duty register. He stated that he has recorded the statement of H. C. Nauroz Khan, Incharge of the guard from which statement it is found that the accused was on duty from 12 noon to 3 p.m. on 10‑9‑1966. The accused had relieved constable Jaffar Ali on 10‑9‑1966 as 12 noon. Now this statement does not support the statement of complainant Habibullah and Khuda Bux that there were two Constables in the Guard‑room, the second being Akbar Ali. Again this Nauroz Khan has not been examined by the prosecution at the trial nor the register showing the entries with regard to time of the appellant's duty at the Guard‑room.

7. The offence is under section 392, P. P. C. of a serious nature parti cularly if alledged against a Police Officer and strict proof is required for such criminal offences against an accused person. Here, it appears to me that there was no sufficient evidence to bring home the guilt to the appellant and the circumstances where P. W. Muhammad Younus S. I. P. took over zealous part in the prosecution case and the allegation of enmity alleged by the appellant against him lends support to the weakness of the evidence of the prosecution case and there is definitely enough room to give benefit of doubt to the appellant on the basis of above flimsy evidence on record which in my opinion is not enough for conviction.

8. The result is I am of the opinion that there is no sufficient evidence against the appellant in this case. I give him the benefit of doubt, set aside conviction allow this appeal and acquit him. As he is on bail his bail bonds therefore stand cancelled.

Appeal accepted

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