1969 P Cr (PLP)

Penal Code (XLV of 1860), S. 342-Rallwav police constable finding a person scaling hedge arresting him on suspicion of being concerned in a cognizable offence-Offence under S. 342, held, not made out-Criminal Procedure Code (V of 1898), S.

54. Jan Hussain, Advocate Supreme Court instructed by Muhammad Habibullah, Attorney for Appellant. Jamil Hussain Rizvi, Advocate-General West Pakistan (Muhammad Nadir, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State. Date of hearing : 10th February 1960. SHAHABUDDIN, J.-The appellant Abdul Rashid who was employed as Foot Constable in the Railway Police was convicted by the Special Judge, Montgomery, under sections 342 and 392, P. P. C., the case against him being that at 2 a.m. on the 15th June 1957, while on duty at Chichawatni Railway Station he accosted one Muhammad Ali, the complainant, as a coolie and on the latter saying that he was not a coolie slapped him alleging that he was a thief and in spite of his protests took out from him Rs. 735 and also a sum of Rs. 1-3-0 and produced him before the Police Head Constable saying that he had recovered only Rs. 376-3-0 from his pocket. The defence was that the amount recovered from Muhammad Ali was only Rs. 376-3-0 and not Rs. 735 and that he had arrested Muhammad Ali because he was lurking in suspicious circumstances. On appeal the learned Judge of the High Court set aside the conviction under section 392, P. P. C. being of the opinion that on the evidence it was doubtful if the sum actually recovered by the appellant was Rs.

735. The prosecution had examined five witnesses, two of whom had deposed that the appellant recovered Rs. 376-3-0 and not 735 from Muhammad Ali. But, as regards the conviction under section 342, P. P. C. the learned Judge observed that it could not be denied that the appellant arrested Muhammad Ali and then brought him to the railway station with no definite allegation but only a statement that he was suspected of being a pick-pocket and therefore there was no doubt that the offence under section 342 was committed. But, as pointed out by the learned Advocate for the appellant, we find that on the evidence in the case a doubt reasonably arises even with regard to this part of the prosecution version. For instance, P. W. 2 who said that it was wrong to say that a sum of Rs. 735 was in the pocket of Muhammad Ali, stated in cross- examination that the complainant Muhammad Ali was scaling over the hedge when the accused arrested him. He also stated that the complainant mentioned three or four places when the appellant asked him as to which place he belonged. P. W. 3 also admitted in the cross-examination that the accused had asked him to see the complainant who was scaling the hedge and he actually saw him doing so. It was contended on behalf of the State that as against this evidence there was the fact that in the report made to the Head Constable P. W. 10 it was said by the appellant that he arrested Muhammad Ali as he looked like a pick-pocket, but that circumstance by itself does not negative the definite evidence of two of the prosecution witnesses, which if believed, clearly justifies the suspicion entertained by the appellant who under section 54, Criminal Procedure Code was empowered to arrest any person against whom a reasonable suspicion exists of his having been concerned in a cognizable offence. It does not appear from the judgment of the High Court that this aspect of the matter was considered. We, therefore, set aside the conviction and sentence maintained by the High Court and acquit the appellant. Appeal accepted.