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Criminal Appeal No. 75 of 1984, decided on 10th August, 1986.

‑‑‑S.204---Evidence, appreciation of‑‑Accused, a Reader of Magistrate, found guilty for, missing statements of prosecution witnesses, recorded by Magistrate under S. 164, Cr.P.C. and allegedly handed over to him, for consigning to record room‑‑Fact whether such statements were ever sent to record room not got verified from peon Book or Office record nor any note in hand of Magistrate existing in office record in respect of handing over such statements to accused‑‑Witnesses whose statements were recorded under S. 164, Cr.P.C. also not examined and even investigating Officer who produced such witnesses before Magistrate, for purpose of wetting their statements recorded not cited or examined as witness‑‑Prosecution, held, failed to prove charge against accused, in circumstances‑‑Conviction and sentence was set aside.

Azizullah K. Shaikh for Appellant.

Muhammad Ibrahim, A . A . G . for the State.

Date of hearing: 10th August. 1986.

The appellant has been convicted under section 204, P.P.C. by the learned Special Judge, Anti‑Corruption, Karachi, and sentenced to two months R.I. and a fine of Rs.1,000 or in default to suffer R.I. for one month more.

The facts in brief are that during the investigation of crime No. 57 of 1978, of Anti‑Corruption Police, the Investigating Officer has got recorded 164, Cr.P.C. statement of witnesses on 14‑12‑1978, in the Court of A.C.M. Civil Lines, Karachi. These statements were to be consigned to the record room, City Courts, Karachi. During the trial of the above case, Special Judge, ordered for production of the above statements in his Court, but the same were found to be missing. The appellant was said to be the Reader in the Court of A.C.M. Karachi and was responsible for sending these statements to the Record Room but he did not do so. After usual investigation the accused was challaned under section 409, P.P.C. read with section 5(2) of Act II of 1947.

At the trial, the prosecution examined three witnesses (i) Jalal Hyder, (2) S.W.A. Abbasi, Incharge of Record Room, City Court, and (3) Masood Ahmed Khan, Investigating Officer.

After close of the prosecution, the appellant was examined under section 342, Cr.P.C. but he denied the allegation and did not lead any evidence in defence.

The learned Judge on the assessment of the evidence, came to the conclusion that the, appellant is guilty of the charge under section 204, P.P.C. and consequently convicted and sentenced him on the said charge, as stated above.

The learned counsel for the appellant assailed the findings of the learned Special Judge on the technical ground that section 204, P.P.C. is not a scheduled offence under section 5 of the Pakistan Criminal Law Amendment Act, 1958, and, therefore, the learned Special Judge in view of the provisions of section 5 of the said Act has no jurisdiction whatsoever to proceed against the appellant or convict him. If this contention is accepted then the case will have to be remanded to the Court of competent jurisdiction but the learned counsel for the appellant has stated that he has taken this plea in case his contentions on merit are not accepted.

After going through the record, it is clear that the case of the prosecution entirely rests on the evidence of P.W. Jalal Hyder who in his deposition has stated that he has handed over 164 statements of the witness to the appellant for sending them to the record room; but he has admitted that he did not verify from the peon book or the record of the office to ascertain whether the above statements were actually sent to the record room or not. He has also admitted that he had not made any note in his office record in respect of the handing over of the 164, Cr.P.C. statements to the Reader by him. He has further admitted that whatever evidence he had given in the Court was on the basis of his memory 164, Cr.P.C. statements of the witnesses were recorded on 14‑12‑1978 by this witness and he was examined on 20‑11‑1983. It is difficult to believe that he has stated that the true facts in his memory after a lapse of five years.

The witnesses whose statements were recorded by the learned Magistrate have not been examined. Even the Investigating Officer who produced those witnesses for the purpose of recording the evidence under section 164, Cr.P.C. has not been examined or cited as prosecution witness.

The Investigating Officer has produced a letter Exh. 6 and admitted that the Magistrate had put the note "the statements be recorded today at 2‑00 p.m." But this letter does not show that 164, Cr.P.C. statements were actually recorded by the Magistrate. He has further stated that he has not examined Hazrat Umer, Sharif Khan, Abdul Ghafoor and Anwar Saeed, to ascertain whether their 164, Cr.P.C. statements were actually recorded in the Court of Jalal Hyder. He had also not recorded the statement of Investigating Officer who had produced the above 4 witnesses in the Court, to know whether he got the 164, Cr.P.C. statements of the above witnesses recorded.

In view of above infirmities, it is clear that the prosecution has absolutely failed to prove only charge against the appellant. The learned A.A.‑G. for the State has also not supported the conviction.

In view of the above facts, the conviction against appellant cannot be sustained. The appeal is accepted, the conviction and sentence recorded against the appellant is set aside. He is on bail. His bail bond is discharged. The appeal was accepted by a short order dated 10‑8‑1986 and the above are the reasons for the same.

S. G. D. Appeal allowed.

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