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Criminal Appeal No. 108 of 1984, decided on 15th April, 1985.

‑‑‑S. 411‑‑Evidence appreciation, of‑‑Benefit of doubt Prosecution witnesses unanimous that accused was taken away by police on day of occurrence from office of firm whereas Investigating Officer allegedly arrested him on the following day while going on motor‑cycle with co accused and stolen amount recovered from him‑‑Arrest of accused and recovery of amount, held, was not proved‑‑'Accused given benefit of doubt and acquitted, in circumstances.

A. Hafeez Lakho for Appellant.

Ghulamally H. Agha for the State.

Date of hearing: 15th April, 1985.

This appeal has been filed under section 410, Cr.P.C. by Abdul Latif who has been convicted under section 411, P.P.C. by the IXth Additional Sessions Judge (Hudood Court), Karachi on 16‑9‑1984 and has been sentenced to suffer R.I. for 2 years. Appellant was tried alongwith Saghir Ahmad on the charges of section 394, P.P.C. read with section 20, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 and section 411, P.P.C. Saghir Ahmad has also been convicted under section 394, P.P.C. read with section 20 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979 by the same judgment and has been sentenced to suffer R.I. for 7 years and pay fine of Rs.2,000 in default to undergo R.I. for 3 months. He has filed appeal before the Shariat Court as appeals against the sentences for more than 2 years are filed in that Court.

Briefly the facts of the case are that on 14‑12‑1981, complainant Asghar Ali a Typist of Shaikh Yousuf Ali & Sons was going to his office which is located in Al‑Yousuf Chamber, Frere Road, Karachi. He was carrying cash of Rs.59,500 containing Rs.100 and Rs.50 notes which belonged to the firm. It is stated that he could not deposit cash in the bank on the preceding day as Bank had closed. At about 8‑30 a.m. complainant reached near City Court, K.M.C. Building and was passing through the lane where two persons came on the motor‑cycle, out of them one person was like a Pathan. They stopped motor‑cycle. Pathan caught hold complainant and placed pistol on his abdomen and tried to snatch bag containing cash but complainant resisted during which he fired at him. In spite of that complainant started running towards City Court side but that person overpowered him and forcibly snatched the bag thereafter both the persons ran away on motor cycle towards Lunda Bazar side. Complainant came to house from where with the help of his neighbour Ameer Ahmad came to the hospital where he was admitted. The information of this incident was conveyed by Doctor to Risala Police Station, Karachi. S.H.O. Syed Asnad Ahmad came to hospital and recorded the statement of complainant. Thereafter, case was registered at the Police Station on 15‑12‑1981 and S.H.O. arrested two persons near Lea Market while they were going on the same motor‑cycle. An amount of Rs.10,000 cash kept in Khaki Envelope with two bank slips bearing stamp of Shaikh Yousuf Ali and Sons were recovered from Saghrr Ahmad while an amount of Rs.6,500 was recovered from the appellant Abdul Latif. Such Mashirnama was prepared. Both accused were picked up in identification test. The motor‑cycle used in the crime was secured and it transpired that Saghir Ahmad had taken motor‑cycle from one Zafar Ahmad for half an hour.

Both the accused in their statements under section 342, Cr.P.C. pleaded not guilty. Appellant Abdul Latif in his statement Exh. 31 admitted that he was Peon of Shaikh Yousuf Ali and Sons where complainant Asghar Ali was working as Typist. He has stated that in the evening on 13‑12‑1981, the Saith gave him two cheques of Muslim Commercial Bank, Khudadad Colony Branch for Rs.3,800 and another cheque of Rs.21,060of United Bank, Boulton Market, and on 14‑12‑1981 he straightaway went to the Bank and after encashing the cheque came back to off ice at 10‑30 a.m. He has further stated that on the same day an amount of Rs.25,000 was given to him by the Cashier which he deposited in Chartered Bank and after half an hour lie reached his office where police was present from where he, the cashier Muhammad Yousuf, Muhammad Hanif, Outdoor Clerk and Nisar Ahmad, Munshi were taken to police station. The others were let off and he was detained. His plea in the statement is that police took him to his house and on search an amount of Rs.6,500 which his maternal‑uncle had given him for purchasing cement was taken out.

I have heard Mr. Abdul Hafeez Lakho for the appellant and Mr Agha Ghulam Ali for the State who does not support the conviction.

Prosecution in support of the case examined as many as 14 witnesses. I do not like to discuss the evidence taken against co‑accused Saghir Ahmad because his appeal is pending before the Shariat Court and any observations in this case may prejudice that case. The evidence of three eye‑witnesses including Asghar complainant, P.W. I 1 Abdul Hameed and P.W. 12 Muhammad Ali has not been believed against appellant Abdul Latif and he has not been convicted for the robbery. There remains the evidence of Mashirs of recovery of Rs.6,500 from him.

P.W, 2 Muhammad Yousuf, Cashier of Yousuf and Sons Exh.8. stated that he subsequently came to know that on 14‑12‑1981 Police visited that office and appellant Abdul Latif was taken away by police from tile office on that day. He has also stated on 14‑12‑1981 Saith Noman informed him that accused Abdul Latif deposited the amount of Rs.15.000 and Rs.20,000 in the bank. P.W. 3 Syed Nisar Ahmad Exh.9 has stated that on the day of incident police arrived in their office before his return from the hospital at 11‑00 a.m. and police remained in off ice for about an hour and police took Abdul. Latif from the office and he was also called at the police station in the evening for recording his statement. P.W. 4 Qurban Hasan Exh. 10, Managing Director of Yousuf and Sons Ltd. has stated that on 14th when police came the office was open and appellant Abdul Latif was taken away with his permission and P.W. 5 Nooman Shaikh Exh, 11, Director of Shaikh Yousuf and Sons Ltd. has also deposed that police took Abdul Latif/appellant and had also taken away other staff members such as Yousuf and others. P.W. 7 Muhammad Aijaz Exh.15 is Mashir of arrest and recovery of Rs.6,500 from the appellant. He has stated that two persons were arrested by police and an amount of Rs.6,500 was recovered from the appellant. He has produced Mashirnama Exh. 17. This Mashirnama is, dated 15‑12‑1981 at 7‑30 p.m. P.W. 13 Syed Asnad Ahmad Exh.25 S.I.P. has corroborated the Mashir of arrest and recovery.

From the evidence of Muhammad Yousuf, Cashier of the Firm Syed Nisar Ahmad, Building Incharge, Qurban Hussain, Director and Mr. Noman Shaikh, Director of Shaikh Yousuf and Sons, it is clear that appellant was taken away from the office of the firm on 14‑12‑1981 tile day of the incident. On the other hand there is evidence of Investigating Officer Asnad Ahmad, S.H.O. Risala Police Station that appellant was arrested on 15‑12‑1981 from Lea Market while going on motor cycle with co‑accused and an amount of Rs.6,500 was recovered. I cannot ignore the evidence of two Directors of the firm and employees and there is no reason to disbelieve their testimony. The arrest of the appellant on 15‑12‑1981 and recovery of Rs.6,500 has not been proved. The appellant is, therefore, given benefit of doubt and his appeal is accepted. Consequently he is acquitted and his bail bond are cancelled.

Appellant's plea that amount of Rs.6,500 was recovered from his house is not believable. His maternal‑uncle D.W.I Exh. 32, who has stated that he had given Rs.6,500 to appellant for purchase of cement cannot be accepted on the ground that this incident took place in the year 1981 and witness was examined on 27‑8‑1984. In the meanwhile he did not apply to Court or any authority for 3 years that his money was taken away by police nor he made any application for return of money. The evidence of other D.W. 2 Muhammad Iqbal Exh. 33 is that police brought Abdul Latif to his house and stayed there for about half an hour and after that father of Abdul Latif told him that police had taken away Rs.6,500 which belonged to Agha Ghulam Hussain (maternal‑uncle of appellant). His evidence could be kept out of consideration on the simple ground that father of appellant who told him about the cash who has not been examined. Under these circumstances I maintain the property order to the extent of recovery of Rs.6,500 from the appellant. The remaining amount was stated to have been recovered from co‑accused Saghir Ahmad for which separate appeal is pending.

S.G.D./A‑27/K Appeal allowed.

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