1991 PLP 1781 (MLD)

S. 457

Criminal Procedure Code (V of 1898), S.59

Accused was allegedly apprehended on the spot but produced before police after more than two days, violating mandatory provision of S.59, Cr.P.C.

Accused denied his arrest on the spot

Investigating Officer before whom accused was produced not examined showing possibility that accused was not arrested on the spot

Eye-witnesses were closely related inter se

No independent corroboration of the arrest of accused was forthcoming

Held, prosecution had not been able to prove its case beyond reasonable doubt

Conviction and sentence of accused were set aside and he was acquitted in circumstances. Nemo for Petitioner. Muhammad Yunus Qureshi for the State. Date of hearing: 20th April, 1991. Munir Ahmad, petitioner, was tried under section 457, P.P.C. for committing lurking trespass into the house of Allah Rakha, P.W.3, on the night between 15/16-11-1979. The prosecution case was that on the eventful night Mst. Sardar Begum, P.W.1 was taking water from the hand-pump. The petitioner entered into the house by scaling over the wall of the house. On seeing him, Mst. Sardar Begum raised alarm which attracted Muhammad Aslam, Allah Rakha, and Rehmat Ali to the spot. They saw the petitioner attempting to remove the golden rings from the ears of Mst. Sardar Begum, P.W., the wife of Allah Rakha, complainant. She resisted whereupon the petitioner tried to make good his escape by jumping in the adjoining house of Haji Muhammad Siddique. However, he was apprehended by Allah Rakha, complainant, and the other eye-witnesses in the street. On 18-11-1979, the petitioner was produced before the police and F.I.R. 'was lodged by Allah Rakha at the police station. After investigation the petitioner was challaned in the Court. He denied the allegations and claimed to be tried.

2. Prosecution produced Mst. Sardar Begum P.W.1, Muhammad Aslam P.W.2, Allah Rakha, P.W.3 and Rehmat Ali P.W.4, in proof of the charge against him. They supported the prosecution case in all material particulars. Nazir Ahmad, A.S.I., the Investigating Officer could not be traced, so was not examined by the trial Court.

3. When examined under section 342, Cr.P.C., the petitioner denied all incriminating circumstances. He raised the plea of false implication at the instance of his enemy namely Haji Muhammad Saddique. In defence he produced Muhammad Shafiq D.W.I, Muhammad Hussain, D.W.2, who supported the plea of enmity of the petitioner with Haji Muhammad Saddique and his false involvement in the case. The trial Court convicted the petitioner under section 457, P.P.C. and sentenced him to one year's R.I. and a fine of Rs. 1,000 or in default thereof three months' R.I. The appeal riled by him was dismissed by the learned Additional Sessions Judge, Sialkot, on 9-2-1983.

4. No one has appeared for the petitioner. Since revision after having been admitted to regular hearing cannot be dismissed for non-prosecution, so I have examined the case with the assistance of the learned counsel for the State. I feel inclined to accept this revision for the reasons that the occurrence took place on the night between 15/16-11-1979. The petitioner was allegedly apprehended on the spot, but he was not immediately produced before the police. Although section 59 of the Cr.P.C. requires that in case of arrest by the private person, the person arrested shall immediately be taken to the nearest police. Strangely enough, he was kept under private arrest for more than two days and was then produced before Nazir Ahmad A.S.I. at the time of the registration of the F.I.R. on 18-11-1979. The petitioner has denied his arrest on the spot. The Investigating Officer before whom the petitioner was produced by the complainant on 18-11-1979 has not been examined as a witness. In these circumstances, I feel that the possibility that petitioner was not arrested on the spot at the time of occurrence but was subsequently arrested from some other place and produced, before the police on 18-11-1979, cannot be excluded. The explanation given by the complainant that he was busy in the marriage ceremony and Walima ceremony of his son, so the accused could not be produced before the police for 3 days, does not appeal to reason. Be that as it may the law required him to produce the accused apprehended by him immediately at the nearest police station but this was not done and the mandatory provision of law was violated by the complainant party. All the three eye-witnesses are closely related inter se. There is no independent corroboration of the arrest of the petitioner on the spot at the time of occurrence. For this reason, I feel that prosecution has not been able to prove its case beyond reasonable doubt.

5. Pursuant to the above discussion, the revision is accepted. The conviction and sentence of the petitioner is set aside and he is acquitted of the charge. M.A.K./M-3002/L?????????????????????????????????????????????????????????????????????????????? Revision accepted.