P L D 2001 Karachi 10 (PLP)

Date of hearing: 6th April, 2000. The appellant has impugned the judgment dated 21‑4‑1999 passed _by learned III‑Additional Sessions Judge, Karachi South in Sessions Case No.933 of 1,997 whereby he was awarded sentence to suffer R.I. for one year and imposed fine of Rs.1,000_failing which he has to suffer S. I. for 15 days more for the offence punishable under section 451, P.P.C. The brief facts giving rise to this appeal are that on 13‑12‑1993 complainant Manzoor Ahmed lodged F.I.R. at, Police Station Artillery Maidan stating that he was Private Secretary to Minister Planning and Development, Government of Sindh. On that date a meeting was convened by Chief Minister, Sindh. The staff was therefore ordered to be present in the office. It is stated that the complainant visited the office at 6‑45 p.m. and tried to open the door but he found it bolted from inside. At about 7‑15 p.m., he pushed the door by force as a result of which the hook from inner side was broken and the door was opened. The complainant found the present appellant inside the chamber who on inquiry introduced himself as Muhammad Amjad Khan. About his presence in the chamber, the appellant could not give satisfactory reply and as such the complainant suspected that he had come with an intention to commit theft. It is further stated that Constable Munir Ahmed was alongwith complainant. The appellant was apprehended and the guard posted at Secretariat was called. It is alleged that during his personal search four keys were secured from the pocket of his pant. The appellant was handed over in custody of S.H.O., Police Station Artillery Maidan who had reached the place of incident after some time. The S.H.O. recorded the statement of complainant under section. 154, Cr.P.C. which was incorporated in 154, Cr.P.C. book. On the arrest of appellant certain articles including N.I.C. service card, letter pad of Private Secretary to Minister Law and Parliament Affairs, Sindh, one key chain containing four keys, five visiting cards of different names etc., were recovered from his possession. The police recovered one motorcycle under section 550, Cr.P.C. in presence of two constables and after completing the investigation, submitted challan. The prosecution in its support examined P.W. Muneer Ahmed as Exh.4 complainant Manzoor Ahmed as Exh.7 and Investigating Officer Qurban Ali as Exh.9. Thereafter, the accused was examined under section 342 Cr.P.C. as Exh.13 wherein he stated that he was innocent and was implicated falsely. He was employee and was working as telephone attendant in Sindh Secretariat. He had produced appointment letter and posting letter. He further stated that about two days prior to the alleged incident he had some dispute with complainant Manzoor Ahmed and this whole drama was managed by him. He further pleaded that he was arrested at about 2‑00 p.m. from, Sindh Secretariat while he was on his duty. He, however, admitted that all the articles were taken from his possession by the police except the four keys which were foisted upon him by the police. At the conclusion of trial, the learned trial Court came to the conclusion that the prosecution failed to bring home the guilt against the appellant under section 22, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 beyond doubt, however, he observed that the appellant was guilty of house‑trespass and was convicted in the terms stated above for the offence punishable under section 451, P.P.C. It is contended by the learned counsel for the appellant that except complainant Manzoor Ahmed and Munir Ahmed, there was no other witness against the appellant. They are also Mashirs of alleged search and recovery so also the place of incident. It is stated that it was an office of a Minister where the staff was ordered to remain present in the office. No body has noticed the entry of appellant in the Minister's office. It is pleaded that had the appellant entered the office for the purpose of theft, he could have committed the same but so far the bolting up of the door is concerned, that was absolutely .not necessary for him. He further stated that the door was knocked by the complainant for about 1/2 hour but the appellant did not try to leave the place by another door. It is further argued that same witnesses have been disbelieved on the point of charges levelled under section 22 of the offences Property (Enforcement of Hudood) Ordinance, 1979 but they have been believed on the point of house‑trespass. The learned counsel has stated that the defence story appears to be more probable and believable than the story put forward by the prosecution. He is a telephone attendant at Sindh Secretariat and was arrested in his duty hours from the said place. It is contended that the, appellant has been victimized due to departmental intrigue. It is stated that the investigation had taken place before lodging the F.I.R. at the instance of Minister. P.W. Munir Ahmed has admitted that the appellant was an employee in Sindh Secretariat. He, however, has stated that he does not know that the appellant was telephone attendant. He denied that two days prior to incident some hot talks had taken place between the P.A. Manzoor Ahmad and the appellant: The complainant in the Court has stated in his examination‑in‑chief that the accused present in Court may be the same who committed offence‑ as long time has elapsed. The Investigating Officer has stated that on 13‑12‑1993 he received an information that one person is apprehended in the office of Minister Planning and Development, therefore, he reached there. He recorded the statement of complainant, arrested the accused and made necessary correspondence in this regard. It is contended that the learned trial Court has taken into consideration the ground that the appellant has not examined himself on oath and the inference can be drawn against the appellant. The learned counsel has stated that it is an option of the accused and if he does not want to examine himself on oath, no adverse inference can be drawn against the accused on the failure to make an statement on oath. The reference is made to Mst. Ameer Khatun v. Faiz Ahmed PLD 1991 SC

787. It is argued that investigation had commenced before lodging the. F.I.R. This shows the mala fide on the part of the complainant and the police. The reference is made to Mst. Muhammadia v. Zari Bacha and another PLD 1982 Peshawar

85. The learned counsel has argued that the alleged keys said to have been 'recovered from the possession of appellant/accused have not been produced before the Court Which has vitiated the proceedings, Nazar Ali and another v. The State PLD 1992 Karachi

140. It is contended that the statement of accused has not been taken into consideration by the learned trial Court. Mr. Habib‑ur‑Rashid learned counsel appearing for the State does not support the impugned judgment. The record reveals that the appellant was employee in Sindh Secretariat as Telephone Attendant. The story as narrated by the complainant is that while the door was opened, the appellant was dialling the telephone. This fact itself appears to be improbable. The charge under section 22, Offences Against Property (Enforcement of Hudood) Ordinance, 1979 has not been proved and the same witnesses have been discredited on this point. The prosecution case is that the ‑appellant entered the office of Minister and his entry was not noticed by any of the guard, peon or other employee. He entered the room bolted it from inside and was sitting in the room, is very strange. The learned trial Court has not taken into consideration the fact that appellant was caught at spot and all the correspondence were made by police before lodging the F.I.R. The alleged keys recovered from the possession of appellant have not been produced in Court. The statement of accused recorded under section 342, Cr.P.C. had not been considered by the trial Court which on the contrary appears to be more probable and believable than the prosecution story. Under such circumstances, the prosecution has failed to bring home the guilt of the accused beyond any reasonable doubt and consequently the appeal is allowed and the impugned‑ judgment and conviction is hereby set aside. The appellant is on bail, his bail' bond and surety stand discharged. The above are the reasons of short order passed by me on 6‑4-2000. N.H.Q./M‑97/K Appeal allowed.