P L D 1959 (W (PLP)

A. S. FARUQUI, J.‑This is an appeal against the judgment of Mr. Abdul Kadir Kazi, Additional Sessions Judge, Mirpurkhas, convicting the appellants Muhammad Shafi and Allakhrahio under section 392, P. P. C. and sentencing them both to suffer R. I. for 5 years and also to pay a fine of Rs. 1,000 each and in default of it to suffer further R. I. for one year. The facts of this case are a little out of the common. The complainant Tayab is a Shroff at Mirpurkhas where he keeps his shop. The appellant No. 1 Muhammad Shafi was a Police Constable at Mirpurkhas. The other appellant Allahrakhio was at the time of the alleged offence an employee at the shop of Tayab. The prosecution case is that the complainant Tayab had on 2‑6‑57, left Mirpurkhas for Karachi for some medical advice. Before leaving for Karachi he had left about 81 tolas of gold in his shop which gold had been obtained by melting old ornaments and through the usual cleaning process. On the 3rd of June 1957, Tayab's son named Ibrahim who is a young boy of about 15 years had opened the shop in the absence of his father. At the shop were employed appellant Allahrakhio and another man named Ismail who was working as a Munshi at the shop. The appellant Allahrakhio is said to have suggested to Ibrahim that the said gold which had been cleaned and made into bars was not safe to be kept in the shop. Tayab himself had intended to take this gold home but had forgotten to do so. Ibrahim therefore, was taking these gold bars which were eight in number plus one little piece from the shop to, his house which was situated in Lalchand Quarter. This was at about 11 O'clock. When Muhammad Ibrahim was on his way home the two appellants came up to him from behind on one cycle and stopped him and took him inside the shop of a carpenter. This shop is said to belong to one Abdul Aziz whose wife is the sister of Shafi. Shafi is then said to have asked the boy to show him the gold and on his refusal took it out of his pocket whereupon Ibrahim started crying aloud which attracted a number of persons on the scene. When these persons arrived on the scene and asked Shafi as to why he was taking the gold belonging to the boy he said that this young boy would not be allowed to take so much of gold and that he should bring some elderly person to whom the gold would be returned. Allahrakhio told the boy to go to the shop and bring Ismail Munshi which he went to do, but having reached the shop as he was narrating the story to Ismail, Allah rakhio himself came back to the shop and said that Shati had gone home with the gold saying that he would return it after Tayab returned to Mirpurkhas. Ismail also advised that the return of Tayab should be awaited. A telephone call was sent to Karachi to Tayab and Tayab came back to Mirpurkhas on the third day. On ascertaining the facts, Tayab took Allahrakhio to the house of the appellant Shafi and asked him to return the gold to which the latter replied : "that the matter had received publicity and that he would return it after the matter had subsided." He is said to have taken an oath on the Quran to this effect and Tayab was also assured by Allabrakhio that Shafi will return him the gold and that he need not worry. From this point of time it was a tussle between Tayab on the one hand and Shaft on the other and it is alleged that for some time Shafi kept on promising to return the gold and that this promise he gave not only to Tayab but to a number of other persons, that there were attempts at compromise but they failed and thereafter Shall went away to his native place in the Punjab and returned after a month and a half. After his return Shafi is said to have changed his attitude and told Tayab to do whatever he liked. Thereafter Tayab addressed a registered notice to Shafi on 21‑8‑57 demanding the return of the gold from Shafi which the latter had snatched from his (Tayab's) son. Shafi received this notice but sent no reply. Thereafter, on 27‑9‑57 Tayab addressed two applications, one to the S. P. and the other to the District Magistrate. It seems that both Tayab and Shafi appeared a number of times before the District Magistrate, who ultimately ordered Tayab on 20th November 1957, to file a direct complaint. It was then that the present complaint was filed on 16‑12‑57 in the Court of the Resident Magistrate, Mirpurkhas who made the preliminary enquiry and issued process to the appellants. The committal proceedings were held by the Extra Joint Sub‑Judge and A. R. M., Mirpurkhas whereafter the case was committed to the Sessions and was tried by the Additional Sessions Judge who found both the accused guilty of having committed an offence under section 392, P. P. C. and convicted and sentenced them as mentioned earlier. At the trial the evidence which was produced by the pro secution could be divided into three categories; firstly, it consisted of direct evidence of the incident which took place on the 3rd June 1957, when the appellant Shafi is said to have robbed Ibrahim of the gold in company with Allahrakhio. The second category of evidence is about the admission of the appellant Shafi on several occasions about returning the gold and the third is the conduct of the appellant Shall in getting false cases launched against complainant Tayab and his son in order to coerce them not to proceed with this matter. There were also a number of other circumstances which were relied upon by the prosecution. These I shall refer to in some detail presently. With regard to the actual incident which took place inside the shop of the carpenter Aziz there is the evidence of the boy Muhammad Ibrahim who is supported by five witnesses, namely, Juma Khan, Nazir, Yar Muhammad, Hussain Bux and Munshi Ismail. Ibrahim deposed to the whole incident which has been stated in the earlier part of this judgment. The other four witnesses named above were attracted to the scene because of this incident. According to them they were passing on the road near the shop of the carpenter and having heard the cries they went inside the shop and witnessed the incident. Of these four the witness Yar Muhammad, who was the last to arrive, has said that the, boy was crying and told him on inquiry that Shall had robbed him of the gold, and that he himself had seen the gold in the hands of the appellant Shall. All these witnesses said that when Shafi was asked to return the gold he told the boy to go and get some elderly person to whom he would return the gold, and that after the boy had gone both Shafi and Allahrakhio also left the place saying that they were going to Tayab's shop. Their evidence finds support from the evidence of Ismail who was the Munshi at the shop of Tayab, who stated about Ibrahim having at the suggestion of Allah Rakhio taken the gold bars from the shop and then coming back after a short while and relating the story of the robbery. He further stated that Allahrakhio also came back to the shop soon after Ibrahim and he also told then to await the return of Tayab. Then there is the evidence of Rahman Bux and Lal Muhammad to the effect that at the suggestion of the complainant Tayab, Rahman Bux had called Shafi for bringing about a settlement. Shall came and at that time other persons were also called. These were Lai Muhammad and Mahboob who had their shops nearby. They tried to persuade Shall to return the gold to the complainant so that the matter did not go any further. It is alleged that Shafi admitted to have taken the gold but he said that he had not got the whole of it himself and that he had got only half of the gold and the other half had been distributed amongst others including Allah Rakhio and that he agreed to pay Rs. 5,000 out of which he offered to pay Rs, 2,000 then and the remaining Rs. 3,000 after his return from Haj, for which he was proposing to go. Tayab did not agree to these terms. The evidence of the prosecution witness Ghous Muhammad is to the effect that Muhammad Shall is his neighbour and Tayab had therefore asked this witness to intervene and prevail upon Shall to return the gold. This witness says that he approached Shall and asked him to return the gold but the latter said that Tayab had complained to so many people in the town and therefore he would not return it then but would do so later on. There is also the evidence of Mr. Ghulam Nabi. Advocate, who says that Tayab had come to engage him to file a complaint about Shafi having robbed the gold, that Tayab wanted to settle the matter privately if possible and for that reason while he was at Mirpur khas he had sent for Shall on several occasions but had not been able to get him so as to prevail upon him to return Tayab's gold. Mr. Ghulam Nabi was examined at the instance of the A. P. P. There was then the evidence of Tayab that two criminal cases had been instituted against him and his son in Chistian and Khanpur at the instance of the appellant Muhammad Shall. There is on record a copy of the order in the case filed at Khanpur which was under sections 406 and 420, P. P. C. against Tayab and his son Ibrahim and two others. This order shows that this complaint was dismissed in default of the complainant on 14‑3‑

58. There are also on record three warrants issued from the Court of the Third Class Magistrate and Additional Naib Tehsildar Chistian addressed to Tayab, his son Ibrahim and Nazir (who is a prosecution witness in this case). These are Exh. 30‑4/1 to 4/3. The offence mentioned is under sections 352 and 504, P. P. C. Tayab has stated that both these false cases had been started at the instance of Muhammad Shall and that he went and paid some money to the persons, who had filed these complaints and thus got then dismissed in default. There is also the evidence of the other prosecution witnesses named above who had filed appli cations to the authorities asking for protection as Muhammad Shall was terrorising them and threatening them with dire conse quences if they appeared as witnesses in this case for the prosecution. These applications and the enquiry held upon them are also on record Tayab has deposed to having his old ornaments melted and cleaned on the 2nd of June 1957, and then having gone to Karachi without removing the cleaned gold from his shop to the house; of having received the telephonic message at Karachi about the incident and thereafter having come to Mirpurkhas where he made all possible efforts to persuade Muhammad Shafi to return the gold and thereafter took steps which culminated in the filing of the direct complaint in the Court of the R. M. According to him this gold had been cleaned by one Ibrahim Nihro whom he had paid Rs. 95 as labour charges for cleaning the gold. He produced a receipt of the payment of this sum of Rs. 95 to Ibrahim Nihro which is Exh.

24. This was said to bear thumb- impression of Ibrahim. Ibrahim was called to give evidence but he denied to have cleaned the gold or signed the receipt. The attesting witness of the receipt Abdul Sattar gave evidence that Ibrahim had been paid Rs. 95 for the cleaning of the gold by Tayab, that the receipt was already executed by Ibrahim but that he attested it because Tayab told him in Ibrahim's presence that this was the receipt of Rs. 95 paid by him to Ibrahim for cleaning the gold and Ibrahim did not question it. The appellant Muhammad Shafi in his examination denied to have committed the offence. Hs said that this was a false case in which he was implicated at the instance of Head Constable Raza against whom he had made several reports. When asked as to why these witnesses were deposing against him, he said they were the neighbours of the complainant Tayab. He also denied to have either threatened the witnesses or to have had anything to do with the criminal cases started in Khanpur and Chistian against Tayab and others. In his defence he produced a petrol book which he maintains and from which he relied upon certain entries to show that he had noted it down that Tayab and the Head Constable Raza were trying to involve him in some false case.' He also produced an application dated 10‑6‑57 which was addressed by him to the Superintendent of Police, Mirpurkhas, in which he has complained that Muhammad Raza had on the previous day gone to Tayab to press him to make a false case against the appellant. He examined no defence witness. The appellant Allahrakhio also denied to have committed the offence and when asked as to why the witnesses were deposing against him he said that they were doing so because they were the neigh bours and customers of Tayab. To a further question he replied that the complainant was doing smuggling in Indian currency and that Shafi had made a report against him; that the complainant and the Head Constable Raza had asked him to give evidence against Shafi which he refused and he was then turned out from service by Tayab and implicated in this case. He also did not examine any defence witness. Mr. Tufailali Rehman, the learned Advocate for the Appel lant, who has presented the case very fairly, has argued that it may be that there was some transaction of gold between the appellant Shafi and the complainant but the evidence on record with regard to the alleged offence of robbery is such which cannot be accepted. He argues that in order that the appellants be held guilty of an offence of robbery or any other similar offence, it must be proved beyond all reasonable doubt that on the 3rd of June 1957, Muhammad Shafi along with the other appellant Allahrakhio deprived the boy Ibrahim of the gold at the time and place alleged by him. This he says has not been done in this case and that therefore, the appellants are entitled to be acquitted. Mr. Tufailali first contends that no satisfactory explanation has been given in this case why this complaint in Court came to be filed more than six months after the alleged offence and he also asked why Tayab when he returned from Karachi on the third day of the incident, as he alleges, did not lodge a report in the police station. He says, that after all, this crime of such a magnitude is said to have been committed in broad daylight and, according to Ibrahim, there had been so many witnesses who had witnessed the incident. What was there then which prevented Tayab, who is a man of the world from going straight to the authorities and lodging a report of robbery. With regard to the direct evidence of the scene of the offence he says that none of these witnesses live or have their shop near the place of the incident and that all of them are the residents of the same locality where Tayab lives. With regard to the evidence of extra judicial confession he says that even if that evidence was accepted it does not prove that Muhammad Shafi or Allahrakhio had admitted that they had committed robbery in respect of the gold as alleged. He says at best it would be an admission of the fact that Muhammad Shafi had taken some gold belonging to Tayab and which he promised to return. I have heard Mr. Tufailali at great length, and after anxiously considering the case in all its aspects have come to the conclusion that the appellant Shafi, acting in unison with Allahrakhio, did deprive Ibrahim of the gold which Ibrahim was carrying to his house at the time and place as stated by him. Regarding the first objection as to why a report was not lodged at the police station by Ibrahim on the date of the incident or at any rate by Tayab after he returned from Karachi, it appears to me that Tayab has not given the whole explanation. I do not believe that Tayab desisted from lodging the report merely because lie depended upon the promises of Shafi about the return of the gold. The true explanation however is one which is possible to deduce from the record. The admission obtained in the cross -examination of Mr. Ghulam Nabi Advocate gives a clear indication of the reason why the complainant was not anxious to go to the police and was trying his best to see that the gold was returned to him by Tayab privately. This is what Mr. Ghulam Nabi said in cross‑examination to Mr. Gandhi, counsel for the accused Shafi:‑ "When Tayab was prepared to accept half the gold I gathered the impression that the gold belonging to him was not legally imported gold. At the first occasion when he came to me I told him that if he filed a complaint he would have to prove that it was legally imported gold. Otherwise he may get him self in trouble. He said he will try." There is also in the cross‑examination of the complainant that he had done a transaction of Rs. 50,000 in Indian currency with one Ahmed Haji Moosa. It is also well known that a great deal of smuggling of gold was taking place at the borders near Mirpurkhas. It then‑fore appears to me that the matter was not reported to the police promptly because both the complainant and his son Ibrahim were not quite sure of their own position if the gold had been seized by the police in pursuance of a report. Because if the gold had been seized and Tayab was not able to prove that it was legally imported gold he would have not merely lost the gold but might even have been exposed to either a prosecution or a heavy fine under the Sea Customs Act. Such cases in those days were quite common. I can take judicial notice of the fact that about that time a number of prosecutions had been launched at the instance of the anti‑smuggling police in respect of gold bars' seized from private possession. This factor may also explain the anxiety of Tayab and then of Ibrahim to remove the gold bars from the shop to the house. But if the gold was either smuggled or about the importation of which Tayab could not have given a satisfactory explanation that hardly justifies the appellants taking it away as they did. It becomes more reprehensible because Muhammad Shafi was a police constable and Allah Rakhio was the servant of the complainant, both of whom took advantage of their position in the committing of this crime. With regard to the witnesses of the occurrence of the 3rd of June 1957, Mr. Tufailali has contended that their names were disclosed for the first time when the complaint was filed on the 16th December 1957. If they had told the same story which they have given in Court soon after the occurrence their evidence might have been worthy of greater consideration. It however seems to me that if the complainant himself did not lodge a complaint how could the names of these witnesses be disclosed earlier or how could they have told their story to the police promptly after the incident. It is also reasonable to believe that these witnesses as well as the witnesses who depose to the fact of the extra judicial confession must have known that Tayab was not anxious to take the matter to the police in which case there was a likelihood of his being accused of smuggling gold. The only reason why all these witnesses of the scene of the offence are said to have given false testimony is that they live in the same locality as the complainant. It appears in the evidence that the Lalchand quarter where the complainant lives is a large place where thousands of people live. The cross‑examination of these witnesses shows that they live at a distance varying from 100‑400 paces from the place of the complainant. That being so, it is difficult to describe them as neighbours. I have given my earnest thought to the matter and l have found it impossible to reject the evidence of all these witnesses as being false and concocted. They are fairly respectable men, particularly Yar Muhammad, who is a man of substantial means, and it is difficult to hold that all these persons have come to swear to the fact of Ibrahim having been deprived of his gold by the two appellants merely because they happened to live in the same locality where the complainant does. I do not think these men would have come forward to accuse the appellant Muhammad Shafi who is a resourceful police constable unless the incident which they were deposing to was true. The same observation would apply to the evidence of the witnesses Ghous Muhammad, Rahman Bux and Lal Muhammad. It is true that they do not say in so many words that the appellant Shall admitted to have snatched the gold from Ibrahim but in view of the circumstances and the other evidence the only inference is that he was promising to return the gold which had been taken away by him from Ibrahim. Then there are certain circumstances which speak more eloquently and point to the guilt of the appellants. It is true that no report was lodged by the complainant to the police promptly after the incident but there is material on record which shows that at or about the relevant time appellant Muhammad Shah had been accused of taking away the gold belonging to Tayab. There is an application produced by the appellant Shafi himself in his defence which he had made to the S. P. This application (Exh. 59) is written in English and signed by Shafi and is dated 10th of June 1957 i.e., 6 days after the alleged incident of robbery. In that application he states that Head Constable Raza who bears grudge towards him is trying to involve him in some crime and that he is pressing Tayab to fabricate some crime against him. Paras. 6 and 7 of this application are reproduced below:‑ (6) "One Tayab Sharaf resident of Shahi Bazar Mirpurkhas is a first class smuggler. He is habitual smuggler of gold and silver carrying to India. The said Tayab is a firm friend of the Head Constable Muhammad Raza who acts upon his directions and invalid and illegal benefits are being given to each other. (7) Yesterday, Mr. Muhammad Raza Head Constable went to the shop of the said Tayyab to press him to make any false fabrication in respect of any crime against me so that the applicant can be treated severely by him by searching my house and arresting me." While the complainant Tayyab was under cross‑examination a document was put to him in cross‑examination. This purported to be a statement of Tayyab which was recorded by Gul Muhammad Siddiqui, Inspector, on 29‑6‑57 evidently in con nection with the said application of Shafi. I have seen the original of the document. It is in Sindhi. This document bears the signature of the complainant Tayab and reads as follows:-- "I, Tayab, son of Juma Khan by caste Memon resident of Lal Chand Bagh Mirpurkhas state that I own a Shroff shop in Shahi Bazar from the last about 6‑7 years. I know constable Muhammad Shafi as I see him walking on the roads etc. I know Head Constable Raza also. Muhammad Shafi constable has neither secured any gold from me nor he has troubled me. I do not know anything." When asked about this document Tayab said that he did not know Sindhi and this document was not read out to him when he signed it. He said that he had told Gul Muhammad that Shall had taken his gold from his son and that he was promising to return the same to him and he had, therefore, not taken any action. Gul Muhammad was not examined as a witness which he should have been. But it is important to see that while in the complaint of Shafi, paras 6 and 7 of which have been quoted, there is not a word about any gold; the statement reproduced above, clearly suggests that there was an accusation in respect of gold against Shafi. It may be as Tayyab explained that he had told the Inspector that Shafi was promising to return his gold and the Inspector did not like to pursue the matter about which there was no complaint by Tayyab; or it may be that one Tayyab went before the Inspector he did not like to show that Shafi had taken his gold because, as I have said, he was not anxious at that time to have the police brought into the case a fact upon which Shafi was banking all the time. This statement, however, does show one thing that if, as the appellants say, Head Constable Raza and Tayyab had entered into a conspiracy to involve Shaft in some case, it is difficult to see why Tayyab would have made a state ment before Gul Muhammad which exonerated Muhammad Shafi. It also seems to me that Tayyab, with his background and the fact that he was very likely carrying on a business which was of a delicate if not of a shady character, would have the courage to fall foul of a policeman and come to Court with a false case against him. This would not be worth his `while and certainly not expedient. It is therefore reasonable to, hold that there was no motive on the, part of Tayyab to had involved Shafi in this case. There was less reason for Tayyab to implicate his own servant Allah Rakhio falsely. Tie appellant Allah Rakhio said that he was involved because he did not agree to give evidence against Muhammad Shaft. That does not seem to have any substance because surely there was no dearth of oral evidence in this case. There is another interesting fact which might be stated here. Ismail, the Munshi of the complainant was examined in the Committal Court on 10‑5‑58 and he deposed to the incident as narrated by Muhammad Ibrahim. On that day accused Allah‑Rakhio was not represented by a counsel and the statement which appears in answer to a question put by Allah Rakhio to Ismail is this: "It is not a fact that on the day of the incident I had gone to Hyderabad." Now in the examination‑in chief this witness had related about the incident of the flay on which, according to him, Shaft had deprived Ibrahim of the gold and Allah Rakhio had gone with him. ‑So when Allah Rakhio appellant in his unguarded moment is suggesting to this witness in cross‑examination that he (the witness) had on the day of the incident gone to Hyderabad, it is difficult to see what incident he was referring to other than the one to which the witness had deposed in his examination‑in -chief. As regards the evidence of the two criminal cases having been filed against the complainant Tayyab and other witnesses in Chistian and Khanpur which I have no doubt were instituted at the instance of the appellant Shafi, it is true that from it an inference need not necessarily be drawn that Shafi was guilty of the crime in respect of the gold, but it could reasonably be inferred that Shafi did want these persons to be drawn away from the scene of this case so that the same could not be pursued against him. As I have said before, there was no malice or previous enmity between the parties and yet when Shafi chooses to have false cases instituted against Tayyab and his son and other prosecution witnesses far away from Mirpurkhas it does show a piece of conduct which is not that of an innocent man. In view therefore of the discussion that has preceded and the fact that the learned Additional Sessions Judge who had the opportunity of seeing and watching the demeanour of all these witnesses referred to above and has believed them, I do not find it possible to brush all this evidence aside. The same evidence which establishes the guilt of the appellant Muhammad Shafi also brings it home to the other appellant Allah Rakhio. It appears to me that this offence only became possible because of Allah Rakhio and Muhammad Shafi having acted jointly and in unison. Allah Rakhio seems to have in formed Shafi of the presence of the gold in the shop and the fact that Tayyab had gone away to Karachi and that Muhammad Ibrahim would in all probability remove that gold from the shop to the house as Tayyab had wanted. I believe Ibrahim and Munshi Ismail when they say that Allah Rakhio had suggested to Muhammad Ibrahim that he should remove the gold from the shop to the house. Once this happened the rest was easy. Allah Rakhio seems to have met. Shaft according to plan and two of them drove on the same cycle and overtook Muhammad Ibrahim and deprived him of his gold. I, therefore, hold that it is proved beyond any reasonable doubt that the appellants took Muhanimad Ibrahim into the shop of Aziz who was the brother‑in -law of Shan and they succeeded in getting hold of the gold and getting away with it. The question which remains to be considered is whether the appellants are guilty of the offence of robbery as held by the lower Court. In all robbery there is either theft or extortion. Theft becomes robbery if the offender voluntarily causes or attempts to cause to any person death or heart or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint. Extortion becomes robbery if the offender at the time of committing the extortion, is in the presence of the person put in fear and commits the extortion by putting that person in fear of instant death or of instant hurt or of instant wrongful restraint to that person . . . . . . This is how robbery is defined by section 390 of the P. P. C. It will be seen that the chief distinguishing element in robbery is the presence of the fear of imminent violence. The words used are "fear of instant death, instant hurt or instant wrongful restraint". Has the existence of such an element been proved in this case? The learned Additional Sessions Judge has not addressed himself to this question. In my opinion however the answer must be in the negative. Muhammad Ibrahim himself has not been able to make an assertion about the presence of the requisite element. The other witnesses who arrived on the scene later do not improve the position on that point. In fact the evidence is that after Shafi had taken out the gold from the pocket of Muhammad Ibrahim he told him to bring an elderly person to whom the gold would be returned. It is‑quite likely that Shafi also said that he suspected the gold to be a smuggled one. Ibrahim would not admit this for obvious reasons, but that may be the true explanation why there was no resistance to the taking of gold and no report was lodged to the police. In this view of the matter the offence might be nearer to the definition of extortion than to that of theft. 1n fact the margin between the two offences in a case of this character is always very thin. They often overlap and it sometime becomes difficult to say where the theft ends and the extortion begins. Having regard however to the view that I am taking in this case any further investigation of this question would be more or less academic. For reasons stated above I find that the element of fear of imminent violence is wanting in this case. I therefore hold that the offence committed by the appellant Shafi falls under sec tion 379, P. P. C. Allah Rakhio clearly abetted the commission of this offence and was thus guilty under section 379 read with section

109. I therefore alter the convictions of Muhammad Shafi from section 392, P. P. C. to one under section 379, P. P. C. and that of Allah Rakhio to 379 read with section 109, P. P. C. The maximum sentence under section 379 is 3 years and I sentence both the appellants Muhammad Shall and Allah Rakhio to undergo rigorous imprisonment for 2 years each. Muhammad Shafi shall also pay a fine of Rs. 1,000 as ordered by the lower Court and in default undergo further R. I for one year. The sentence of fine imposed by the lower Court on Allah Rakhio is set aside. He after all was a tool in the hands of Muhammad Shafi and the sentence of 2 years' R. I. as imposed on him will meet the ends of justice. The appellants, if on bail, shall be taken into custody and serve out the sentence as modified above. A. H. Order accordingly.