1988 PLP 236 (MLD)

S.M. Sayedain Zaidi for Applicant. Jalaluddin Baluch for the State. Date of hearing: 3rd March, 1988. This revision application under section 439 read with section 561-A, Cr.P.C. is directed against the two judgments of Additional City Magistrate XX, South, Karachi, whereby the applicant has been convicted under section 14 of Offences Against Property (Enforcement of Hudood) Ordinance, 1979, read with section 411 and sentenced to suffer R.I. for 12 months and to pay fine of Rs.1,000 or in default one month more and judgment dated 6-1-1988, of Ex-Officio Additional Sessions Judge, Karachi, his appeal has been dismissed. Prosecution case in brief is that on 5-7-1984, complainant, Inayat Hussain was going on his Motor Cycle. When he reached near the Light House Cinema he left his Motor Cycle on the side of road and went to purchase Pan from the nearby Cabin. He kept his bag containing Rs.29,650, two passports and National Identity Card, Driving Licence and Prize Bonds of Rs.710 on the handle of the Motor Cycle. Some electric bills, calculator and photographs were also in the Thaila. He found that missing. He raised cries on which one constable came. Inayat Hussain went and lodged the report in police station. Complainant came to his house where one Muzaffar informed that one person came with the stolen bag. On hearing this story, he reached-the place where applicant was standing with his bag in his hand. He told him that he found this bag lying near Pakistan Chowk beneath the truck and front. The Driving Licence, he came to know about the address and brought the--bag.,-On verification, complainant, found all his articles and Rs.80 but an amount 'property Rs.29,650 was missing. Police arrested the applicant and recovered the stolen property and challaned the case. I have heard Mr. S.M. Sayedain Zaidi it is contended that there is no evidence of theft against the applicant as he was not found taking away the bag of ,'The complainant:-It is argued that applicant found the bag and went to the house of the complainant from which it is clear that he had no mala fide intention. Mr. Jalaluddin Baluch appearing for the State frankly submitted that the prosecution has not proved the case of theft against the applicant. The name of applicant does not appear in the F.I.R. and nobody saw him taking away the hand bag. Applicant himself went to the house of complainant on the basis of the address given in the Driving Licence and volunteered to produce all the articles including passport etc., and stated that he G:)und the Bag lying under the truck. The bona fides of the applicant cannot be doubted and he cannot be penalised for his honesty on the ground that Rs.29,650 wore missing. May be that the person who took the bag may have taken the amount and left the Bag as stated by the applicant and the circumstance in this case is that no adverse presumption can be taken against the applicant, that he might have taken the amount from the bag. From the judgment, it is clear that both the Courts have not appraised the evidence properly. 1, therefore, allow this revision and set aside the conviction of the applicant. Applicant shall be released forthwith if not required in any other case. SA./M-462/K Revision accepted.