1992 PLP 1817 (MLD)

These Appeals are directed against the judgment passed on 24th February, 1991 by the Ist Additional Sessions Judge (South) Karachi, whereby both the Appellants (Yaqoob Masih Appellant in Cr. Appeal No.67/91 and Yousuf Masih Appellant in Cr. Jail Appeal No.105/91) have been convicted under section 392 read with section 34, P.P.C. and sentenced to suffer rigorous imprisonment for 16 years and pay fine of Rs.50,000, in default in payment of fine suffer R.I. for 3 years. They were allowed benefit under section 38,‑B, Cr.P.C. in computation of their sentence. Since these appeals are directed against the common judgment I propose to decide it by this judgment. The facts of the case briefly stated are as under:‑ On 26‑5‑1985 at about 10‑40 p.m. Abdul Baqi, the Manager of Blees Super Market, Defence Society, Karachi, went to Police Station Defence Society, Karachi, and lodged his report. His report was registered as Crime No.121/85 of that Police Station. According to him, at about 10‑15 p.m., on that day Bilal, Munir and Ismaeel were present in the store with him, when 3 persons came to the store and purchased a packet of cigarettes. He opened the cash register for collecting the price of the cigarettes when one of them aimed a pistol/revolver and took all the available cash in the cash register and collected all the amount from the drawer of the table. One of them, according to him, was armed with pistol/revolver while other was having Chhuri. After taking money all the 3 persons left in a Charade car of silver colour, which was parked outside and they drove away towards Korangi. He described the accused persons to be fat wearing coloured Shalwar Kameez of young age, medium height and he claimed that he will be able to identify them. The police after usual investigation sent up Appellant Yaqoob Masih and Yousuf Mlsih for trial of the offence. Alongwith them one Afzal Masih was also sent up for trial while the 4th accused Gulzar Masih was shown as absconder. As there were no prospects of securing presence of accused Gulzar Masih, the case against him was ordered to be kept on dormant file and proclamation under sections 87 and 88, Cr.P.C. was issued against him. After the trial accused Afzal Masih was given benefit of doubt by the Trial Judge as he was not identified by the witnesses in Court and was acquitted. The prosecution in the case examined complainant Abdul Baqi (P.W.2) who stated the facts narrated by him in the F.I.R. He had shown the Wardat to the police and acted as Mashir of Wardat and also identified the accused in an identification test conducted in presence of a Magistrate. Out of the other witnesses who were present at the time of incident, Muhammad Ismaeel (P.W.3) was examined who stated that he was the salesman in the store when the incident had taken place and was attracted by the commotion towards the counter of the store but had not seen what had already happened. He stated that some scuffle had taken place there and accused left the Wardat. In the identification test he could only identify two of the culprits and pointed out appellants Yousuf Masih and Yaqoob Masih. Besides these two witnesses the prosecution examined Muhammad Usman, the Inspector of Police, who merely stated that he had recorded the F.I.R., seen the Wardat and prepared the Mashirnama of the Wardat. He did not state what happened to the case thereafter. The two Appellants in their statements under section 342, Cr.P.C. denied the allegations and stated that the identification test was held by the Magistrate at Police Station Shahrah‑e‑Faisal. Neither of the two Appellants examined themselves on oath nor examined any witness in their defence. The Appellants were unrepresented and therefore none of the prosecution witnesses were cross‑examined. The Trial Judge _also did not put any question to any of the 3 witnesses examined in the case to ascertain the truth of the accusation but felt satisfied in recording the conviction of the two Appellants on the basis of evidence mentioned above. Mr. M.L. Shahani, Advocate for the appellant Yaqoob Masih in Cr. Appeal No.67/91, contended that there is not an iota of evidence in the case on the basis of which conviction of the appellant can be recorded by any Judge. Appellant Yousuf Masih in Cr. Jail Appeal No.105/91 was produced by the Jail authorities and was heard. The judgment of the Trial Judge is indeed based on misreading of evidence. The prosecution witness Muhammad Ismail, who was working as Salesman in the store, had merely stated that he was attracted by commotion and had actually not seen what happened before that. He gave no further evidence in his statement but the Trial Judge considered such a brief statement to have corroborated the evidence of the complainant. As regards the evidence of picking out the appellants in the identification test he pointed to two appellants whom he had identified in the identification test while he pointed to a third person, who was not an accused person in the case to be one of the culprits. The Magistrate in whose presence the identification test was held was not examined nor any of the Mashirs who had witnessed such test was examined by the prosecution. The Investigating Officer examined in the case also did not state anything beyond that he had recorded the F.I.R, visited the Wardat and prepared memo of inspection of Wardat. What investigation was conducted thereafter is not known. This is indeed a sorry state of affairs where, it is evident that Police in Karachi do not investigate even serious offences like the one in this case under section 392, P.P.C. giving a free handle to criminals to repeatedly commit such offences daily. In view of above facts there is hardly any evidence against the appellants connecting them with the commission of the offence and I had, by my short order passed on 19‑1‑1992 due to above reasons set aside the judgment of the Trial Judge and accepted the appeals and the appellants were directed to be released forthwith if not required in any other case. N.H.Q./Y‑63/K Appeals accepted.