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Criminal Miscellaneous No. 323 of 1986, decided on 11th March 1986.

‑‑‑5. 417(2)‑‑Penal Code (XLV of 1860), S. 380/454/506/34‑‑Appeal against acquittal‑‑Application for permission to‑‑Direct complaint made after a delay of 21 days‑‑Evidence available against accused only of complainant that accused trespassed into complainant's house and stole away some valuable articles‑‑Evidence of two witnesses, one of whom complainant's own son, not implicating accused in commission of crime‑‑ Trial Court making rational evaluation of evidence adduced by for permission to appeal against acquittal

Syed Kausar Ali Bukhari for Applicant.

Date of hearing: 11th March 1986.

Applicant Chaudhri Ramjan Masih has made this application under section 417(2), Cr.P.C. for permission to prefer appeal against the Judgment of acquittal of the respondents Nos. 1 . and 2 (Shera Masih and Muneer Masih) pronounced by the Additional City Magistrate, Court No.l, Karachi East, on 1‑1‑1986, in Criminal Case No. 161 of 1985 instituted on direct complaint filed by him in respect of Commission of offences punishable under section 380/454/506/34, P.P.C. The learned counsel for the applicant has assailed the impugned judgment on the ground that it is based on miss-appreciation of evidence adduced by the applicant.

The applicant filed the direct complaint in the Court of A.C.M., New Town, Karachi on or about 18th October, 1981. He stated therein that he had purchased. a house in Gali No.7, Easa Nagri, University Road, Karachi from one Mst. Sardaran Bibi for sum of Rs. 18,000 and took over possession thereof for his son Yousuf Gil who was recently married. He alleged that he, his son and one another person were doing repairs and white wash in the house when the respondents Shera Masih and Muneer Masih went there and threatened them that they should not occupy the house and he made such report at New Town Police Station but no action was taken by the Police. He further stated that he stored valuables worth about 16, 000 in house and when he went to the house on 27‑9‑1981, he saw both the respondents, named above having entered the house after breaking open its lock and. taken away the valuable goods. He further alleged that the respondents issued him threats that he would .be done to death if he would visit the house again. He also alleged that he went to New Town Police Station to lode report but he was not listened to and he, therefore, filed direct complaint.

It appears from the impugned judgment that the learned Magistrate acquitted the respondents holding that there was no sufficient evidence to prove the charge against the respondents that they had committed lurking house trespass in respondents' house and committed theft of his valuable articles and issued him threats. He observed that one of the witnesses examined by the complainant was his son but he did not say a word about the alleged house breaking by the respondents. He further observed that another witness by name Khushi Masih examined by the complainant was not eye‑witness to the incident but his evidence was that the complainant had purchased the house from Mst Sardaran for Rs. 18,000 and that he was informed later by the complainant that the house had been burgled and he saw the respondents P' their own house. He did not find solitary evidence of the complainant sufficient to hold the respondents guilty of the offence attributed to them. He also took notice of 21 days delay in filing the direct complaint. He further took notice of another fact that the transaction of the purchase of the house was shown to have taken place on 26‑9‑1981 'and the offence was alleged to have been committed during the night between 26th and 27th of the same month and he found it unbelievable‑ that the white washing of the house and storing of the valuable property in the house were done during such a short period.

We have examined the impugned judgment and perused the evidence of the witnesses. There is evidence of only the complainant implicating the respondents that they had trespassed into his house and stolen away some valuable articles. The evidence of the two witnesses A examined by him, one of them being his son, did not implicate the respondents in commission of the crime. The direct complaint was filed after delay of about 21 days. The learned Magistrate seems to have made rational evaluation of the evidence adduced by the complainant. 'We do not find any merit in the application and dismiss it.

M.Y.H. Petition dismissed.

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