1981 P Cr (PLP)

Imam Ali Kazi for Appellant. Nazir Alam for the State. Kishinchand for Respondent No.

2. Date of hearing : 22nd March, 1980. This is an appeal under section 520, Cr. P. C. filed by the appellant Syed Ali Shah who was the complainant in a theft case who bad claimed that the house in which he had been living with his uncle Gambal Shah had been scaled over and ornaments and transistor Radio which belongs to Gambal Shah had been stolen. The description of golden and silver ornaments was given in the F. I. R. alongwith their weight. The offence had occurred between the night of 5th October, 1969 and 6th October 1969 but the F. I. R. had been lodged on 8th October, 1969 and the reason of the delay was that the owner of the property Gambal Shah was away. Mehro and Mohammad Ayub the present respondent were tried for an offence under section 411, P. P. C. as the ornaments had been recovered from the house and shop of Mohammad Ayub respondent. The Sub-Divisional Magistrate, Mirwa convicted the respondent Mohammad Ayub under section 411, P. P. C, and sentenced him to pay a fine of Rs. 1,000 or in default to suffer S. I. for 6 months. The property was ordered to be returned to the complainant. The other accused Mehro had absconded during the trial and section 512, Cr. P. C. proceedings were initiated against him. The present respondent Mohammad Ayub filed an appeal before the Sessions Court, Khairpur which was allowed on 13th March, 1975 and the respondent was acquitted of the offence under section 411, P. P. C. The golden, silver and other ornaments which were recovered as per Mashirnama Exh. 3 and Exh. 3-B were ordered to be returned to respondent Mohammad Ayub as they were found his possession and were not proved to be stolen property. Mr. Imam Ali Kazi counsel for 'the appellant Syed Ali Shah has submitted that the finding of the learned Appellate Court is based only on certain conjectures and presumptions and is not justified from the evidence and that he has ignored the evidence of the Magistrate and the mashir in respect of the identification of the ornaments by the owner Gambal Shah. He has also submitted that defence witnesses examined on behalf of Mohammad Ayub had not established their owner ship of the ornaments. However, I find that the learned Sessions Judge has given valid reasons in his judgment for acquitting the appellant and giving the property to him. The learned Judge has considered that the present respondent Mohammad Ayub had admitted the recovery of ornaments from his house and shop but had claimed the same to be his own or belonging to some of the customers. In view of this position adopted by accused/appellant the question was as to whether the ornaments belong to Gambal Shah as alleged by the prosecu tion or they belongs to Mohammad Ayub and his customers. Vile most difficult problem for the appellant was that P.W. 7 Gambal Shah who way, the owner of the property could not identify in Court that the ornaments in question belonged to him. I have seen his statement and he stated that it was because of sickness and failing eye-sight that he would not be in a position to identify those ornaments in Court as having belonged to him. The identification was not even possible on the day Gambal Shah was present in Court as the Ornaments had not been produced in Court and the counsel for the present respondent reserved his cross-examination as Gambal Shah was not feeling well and was unable to give any reply and the property had not also been produced by the police. Thereafter Gambal Shah died and, therefore. his evidence remained incomplete and the same could not be considered against the present respondent as Gambal Shah had died before he could be cross-examined on behalf of Mohammad Ayub. P. W. Ali Shah the complainant was also examined but he was not the owner of the ornaments and although he had stated that he had picked out ornaments and he knew that the ornaments in question belonged to his uncle but in, cross-examination he admitted that he could not give details separately for the ornaments secured from the shop of accused. Ayub. He however admitted that the ornaments were common and that there was no special mark on the stolen ornaments but he asserted that he could identify those clearly because of continuous possession. This witness was however not relled upon by the Sessions Judge on account of the fact that he was not the owner of the property and he had taken the details of the stolen property from his uncle Gambal Shah as admitted by him in the F. I. R. himself. In these circumstances, it was not unreasonable on the part of the Sessions Judge to discard the evidence of Ali Shah and since the owner Gambal Shah had not identified the property to be his own, therefore, there was hardly any evidence to connect the property as owned by Gambal Shah. The evidence of the identification of the property in the identification parade by Gambal Shah could only be useful if Gambal Shah had made a statement in Court identifying the property because thereafter his statement could be corroborated by the identification memo mashirs and the Magistrate but that was not the case. The Goldsmith Mohammad Essa who had been examined for the prosecution had made a statement that he had made some of the ornaments for Gambal Shah. Mohammad Essa had made an exaggerated statement by identifying every one of the golden and silver ornaments produced in Court to be belonged to Gambal Shah although some of the ornaments have not even been claimed by Ali Shah whose claim was that some of the ornaments were original ornaments which belonged to his uncle while the other ornaments produced in Court had been made after the original ornaments had been melted and they were given a different shape Thus evidently Mohammad Essa had tried to prove a case better than what was claimed by the complainant himself. The learned Sessions Judge ale: took into consideration the fact that some of the ornaments of Much weight had been given in the F. I. R. were found to be having different weights when they were weighed in the Court. This was a correct and practical attitude to addopt and there could be hardly any dispute with that practical approach. Moreover a number of P Ws. had been examined on behalf of the respondent Mohammad Ayub who had picked out certain items of the ornaments which had been recovered from respondent Mohammad Ayub and those articles were claimed by those P. Ws. The learned Sessions Judge was of the view that there was nothing to dis-credit statements of those defence witnesses and he, therefore, considered their evidence as worth believing. In these circumstances, I am of the view that the Sessions Judge had passed a reasonable order based on the correct appreciation of evidence and, therefore, this appeal is dismissed. Appeal dismissed.