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Criminal Appeal No. 80 of 1984, decided on 30th October, 1984

‑‑‑S.14‑‑Penal Code (XLV of 1860), S.379‑‑Evidence, appreciation of‑ Accused caught red‑handed with stolen property and no enmity alleged to prosecution witnesses‑‑F.I.R. also lodged promptly‑‑Conviction maintained, in circumstances.

Sh. Mumtaz Illahi for Appellant.

Hayat Qureshi for the State.

Date of hearing: 30th October, 1984.

This appeal has been filed by the appellant Suleman son of Zarif Khan who has been convicted alongwith co‑accused Taj Muhammad and Zulfiqar Haider by the judgment, dated 5‑5‑1984 of the learned IXth Additional Sessions Judge (Hudood) Karachi whereby each of the three accused has been sentenced to suffer rigorous imprisonment for two years for the offence punishable under section 379, P.P.C. read with section 14 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Appellant Suleman was on bail and he was taken into custody to suffer out the sentence awarded to him. The other two accused, namely, Taj Muhammad and Zuifiqar, were in custody during the trial for a period of more than two years, which was the sentence awarded to them, and as such it was directed by the trial Court that as the other two accused had already undergone the period of detention which was more than the sentence awarded to them, they be released forthwith if not wanted in any other case. I have heard Mr. Shaikh Mumtaz Illahi, learned counsel for the appellant Suleman and Mr. Muhammad Hayat Qureshi, who has appeared on behalf of the State.

2. It may be mentioned here that order, dated 25‑10‑1984 shows that the learned counsel for the appellant had taken time for the purpose of satisfying the Court that this appeal against the conviction for the offence under section 14 of the Offence Against Property (Enforcement of Hudood) Ordinance, 1979 is maintainable in this Court. Learned counsel for the appellant has pointed out that this appeal is maintainable in view of the second proviso to section 24(1) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979, which reads as follows :

"Provided further that an offence punishable under section 9 or section 17 shall be triable by a Court of Session and not by Magistrate under section 30 of the said Code and an appeal from an order under either of the said sections or from an order under any other provision of this Ordinance which imposes a sentence of imprisonment for a term exceeding two years shall lie to the Federal Shariat Court."

According to the learned counsel for the appellant, in the instant case, the sentence is for two years and not exceeding two years and as such an appeal lies to the High Court under the Code of Criminal Procedure, 1878 and not the Federal Shariat Court. Mr. Muhammad Hayat Qureshi, learned counsel for the State also submits that the present appeal is competent. In view of section 24(1) of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 which includes the, second provise, referred by the learned counsel for the appellant, I am of the view that the present appeal has been competently filed in this Court as the sentence given to the accused is two years' and not for a term which exceed two years.

3. The complainant in this case is Faiz Muhammad Baloch, who was a supervisor in K.E.S.C. and was on duty at the Clayton Complaint Centre of K.E.S.C. at Gurumandir, Karachi. On 26‑6‑1981, he had come on duty at 11.00 p.m. and his duty was till 7.00 a.m. next morning i.e. 27‑6‑1981. He made a report about the incident. The F. I. R. is reproduced here:‑

"I am residing at the above‑mentioned address and am employed in K.E.S.C. as Supervisor. I remain on duty at Clayton Complaint Centre Gurumandir. I had come on my duty at 11.00 p.m. and my duty was till 7.00 a.m. Fariduddin and Muhammad Zulfiqar, too, were on duty with me. All of us were sitting in the Office of the Company at first floor, when myself and my companions saw that a Motor Rickshaw No.K.A.T. 6424 arrived and stopped near our office at about 4.45 a.m. then, three persons, including the driver, got down from it and all of a sudden they picked up two bundles, weighing about one Maund, out of the copper wire bundles of our company and put them into the Motor Rickshaw. Myself and both of my companions came downstairs, immediately, and raised cries of thief‑thief but the aforesaid persons ran away with the rickshaw, so I started chasing them by the vehicle alongwith both of my companions, then, by narrating the incident to a Police Sebadar, near Grumandir, whose name was learnt as Syed Wilayat Hussain Shah, accompanied him, and continued chasing the rickshaw. At last at about 05‑15 hours the rickshaw alongwith the passengers, including the driver and two bundles of copper wire were caught near bungalow No.G.R.E.319 at Britto Road. The rickshaw driver told his name as Zulfiqar Haider and the other persons as Taj Muhammad and Suleman. The value of this copper wire would be about Rs.2,000. I lodge complaint against all the aforesaid three persons for committing theft of K.E.S.C. copper wire weighing about one maund. Heard the statement and correct."

The three accused were caught red‑handed. Challan was presented against them and they pleaded not guilty to the charge framed against them. The evidence of the prosecution comprised of three eye‑witnesses, namely, P.W.1 Muhammad Zulfiqar, P.W.2 (complainant) Faiz Muhammad Baloch and P.W.3 S.I. Syed Willayat Hussain Shah, who was also the Investigating Officer. One eye‑witness Fariduddin was given up by the prosecution.

4. It has been contended by Mr. Shaikh Mumtaz Illahi, learned counsel for the appellant, that there are various material contradictions between the depositions of three prosecution witnesses and between the F.I.R. and the complainant's statement, and that different versions have been given by the prosecution witnesses. According to the learned counsel for the appellant if at all there was any case against the accused, it was a case under section 411 and not under section 379, Cr.P.C., and as the recovery is doubtful, in view of the Mashirs not being of the locality where the accused had been apprehended, even a case under section 411 was not proved beyond reasonable doubt by the prosecution against the accused including the appellant Suleman. I have been taken through the evidence of the witnesses by the learned counsel for the appellant. There are some contradictions in the evidence of the prosecution witnesses but in my view, these are minor contradictions. From the evidence, produced on behalf of the prosecution, it has been established that two bundles of copper wire were stolen by the three accused and they were caught red‑handed with the stolen property by the prosecution witnesses which included the three eye‑witnesses, who were examined in the trial Court. No suggestion of enmity was made against S.I. Syed Wilayat Hussain Shah or against the three employees of K.E.S.C. including P.W.1 Muhammad Zulfiqar and P.W.2 Complainant Faiz Muhammad Baloch. In his statement under section 342, Cr.P.C. the appellant had stated that his statement was the same as that of accused Taj Muhammad and accused Taj Muhammad in his statement under section 342, Cr.P.C. had stated that he was addicted to "Charas" and Police had arrested him in a "Charas" case and foisted the theft case and that at Gurumandir he was smoking "Charas" when I was arrested and that appellant Suleman was also with him and smoking "Charas". There is no cross‑examination of the prosecution witnesses on this point. This plea was taken at the time when statements under section 342, Cr.P.C. of the accused were recorded. Even no copy of any document of a case, in which the appellant and accused Taj Muhammad had been arrested by the Police had been presented to show previous enmity. A very vague plea has been taken by the appellant and accused Taj Muhammad. No case of enmity against the prosecution witnesses has been made out. I have already observed that there are only minor contradictions in the evidence of the prosecution witnesses but after perusing the evidence it is apparent that the prosecution has established its case beyond reasonable doubt as against the appellant. In fact there was no cross‑examination of the prosecution witnesses by the appellant. Learned counsel for the appellant had submitted that the appellant being poor, could not engage an Advocate and that the prosecution had not established its case against the appellant beyond reasonable doubt. I have already observed that a case has been established against the appellant by the prosecution beyond reasonable doubt on the basis of the eye‑witnesses, and the minor contradictions) in the evidence of the prosecution witnesses do not demolish the case of the prosecution that the goods in question were stolen by three accused and that the appellant alongwith two co‑accused were arrested A red‑handed with the stolen property. There is no delay in filing of the F.I.R. As observed no enmity has been alleged or proved. There is no reason or justification to set aside the impugned judgment convicting the appellant.

5. As regards the reduction in sentence also, in my view, no case has been made out. There are no extenuating circumstances. The sentence is maintained. However, 1 find from the record that after the appellant had been arrested, he remained in custody for certain period during the trial and during certain period he was on bail. He is entitled to benefit under section 382‑B, Cr.P.C. For computing the sentence of imprisonment undergone by the appellant, the periods during which the appellant remained in custody/ detention as an under‑trial prisoner will be taken into consideration by the Jail authorities and benefit of these periods will be given to him. With this observation about the benefit under section 382‑B, Cr.P.C., the present appeal is dismissed.

M. A. K. Appeal dismissed

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