1994 P Cr (PLP)

S. 14

Criminal Procedure Code (V of 1898), S.417(2)

Petition for special leave to appeal against acquittal

Even if the material of the challan case and the complaint case had been used in the Trial Court's judgment, yet on merits on the basis of evidence produced by complainant no case beyond reasonable doubt was established against accused warranting interference with their acquittal- --Petition for special leave to appeal was dismissed accordingly. Noor Illahi's case P L D 1966 SC 708 ref. Sardar Muhammad Akram for Petitioner. Muhammad Sharif Khokhar for Respondents. Date of hearing: 23rd May, 1993. The petition for special leave to appeal was admitted to regular hearing on the plea that the complaint case and the challan case had been 14 simultaneously proceeding with material of one used in the other and the principle laid down in Noor Illahi's case P L D 1966 SC 708 violated.

2. The occurrence took place on 25-7-1990 and Munshi Masih (P.W.4) lodged the F.I.R. on 28-7-1990 under section 14 of the Offences Against Property (Enforcement of Hadd) Ordinance, 1979 against Saleem Masih, Muhammad Akram, Muhammad Anwar, Sohail, Mst. Ulfat Bibi and Siddique Masih respondents.

3. Learned counsel for the parties have been heard and record gone through with their help. After hearing them and perusing the record the appeal must be dismissed. Even if the material of the challan case and the complaint case have been used in the judgment impugned against, yet on merits on the E basis of evidence produced by Munshi Masih no case for interference against the order of acquittal is made out. The case of Munshi Masih in the complaint was that he had placed his household articles in the house on 24-7-1990 and left for Lahore after locking the house. After his departure the respondents/accused had broken open the door and removed from his iron box cash of Rs.6,000 and some clothes. On return he was informed by Rehmat Ali, Rasila Masih, Inayat Masih and Nawab Masih that it was the respondents who had committed the theft.

4. At the trial the complainant (P.W.4) admitted in cross-examination that before the present occurrence he had moved an application against Saleem Masih as to his theft but he could not say how long before the present occurrence, he had moved the application. He also stated that even previously the accused had broken his two Pettis and the articles removed had not been returned. In the previous theft Akram and Saleem Masih were arrested and none else. He also stated that the police had got delivered the possession of the house to him under the order of a Judge and at that time Saleem Masih was under arrest with the police. He admitted that since 18/20 years back his family had shifted to Lahore and had given his house in the charge of Siddique Masih and Siddique Masih was having his residence in a room in the house under power of attorney and he was on litigation with respect to this very house with Rasila Masih. He also admitted that Siddique Masih under the general power of attorney had executed a registered sale-deed in favour of Saleem Masih, he (the complainant) had to file a civil suit against Saleem Masih. If the house had been vacated by the complainant since 18/20 years, the same was in the residential possession of Siddique Masih, who had sold it to Saleem Masih respondent then it cannot be eontenanced that a cash of Rs.6,000 and clothes would still be lying in the house. Rasila Masih (P.W.3) admitted in cross-examination that all the family of Munshi Masih had shifted to Lahore since 20 years and he himself was on litigation with the complainant and that Munshi Masih had given the possession of the house to Siddique Masih, Siddique Masih lived in the house for 5/6 years and as general attorney of Munshi Masih, sold it to Saleem Masih since 2/3 months before the present occurrence. If under the sale-deed the possession had been obtained by Saleem Masih then there is no question of theft from the same house by Saleem Masih, the occupant. Thus, the evidence produced at the trial, no case beyond reasonable doubt was established against the respondents.

5. Consequently there is no ground to interfere with the order, dated 6-6-1992 recorded by the learned Magistrate under section 249-A, Cr.P.C. acquitting the respondents/accused. The petition is dismissed. N.H.Q./M-1674/L Petition dismissed.