1993 PLP 381 (MLD)

Sajad Dogar with Inayat Ullah Cheema for Petitioner. Sardar Khurshid Ahmad for the State. Date of hearing: 25th May, 1992. Muhammad Younas petitioner alongwith Muhammad Yousaf, Azmat Al and Akbar Ali were tried for offences under section 380/406, P.P.C. by Magistrate Section 30, Faisalabad. Vide judgment, dated 14-12-1982 they were convicted under section 380, P.P.C. and sentenced to three years' R.I. and a fine of Rs.10,000 each or in default thereof one year's R.I. each. On appeal Yousaf, Akbar Ali and Azmat Ali were acquitted, the conviction of Younas petitioner was maintained and his appeal dismissed.

2. The occurrence according to the F.I.R. lodged by Iqbal Begum complainant (P.W.I) took place at about 8/9a.m on 14-12-7974. The F.I.R was registered on 7-5-1980. Her version in the F.I.R. was that she was married to Muhammad Shafi about 16 years back, and they gave birth to five children. Muhammad Shall was previously married to Mst. Hamida Bibi and Mst. Nawab Bibi. From the womb of Mst. Nawab Bibi Shafi had Muhammad Younas, Muhammad Yousaf, Akbar Ali and Aamat Ali as tr:: sons. The family were living in a four-storeyed house. The third storey was in possession of the complainant where her husband used to live with her and the children from the womb of Mst. Ham:da Bibi. The accused used to live on the fourth floor with one room on the third floor. In the third storey in the premises in possession of the complainant her husband had placed an iron safe for cash and ornaments. The key was kept by Muhammad Shafi himself. He fell ill in the month of December, 1974 when the safe was having cash of Rs.3,65,000 and the gold ornaments of the complainant. He delivered the key to the complainant. On the day of occurrence the petitioner and his co-accused forcibly entered her portion of the house, took the key and removed the cash. They went on promising its division later on but finally refused. Complaint had been made to the higher authorities but to no avail.

3. At the trial the prosecution produced Mst. Imtiaz Begum complainant, Muhammad Siddiq (P.W.2), the uncle of the petitioner and his co-accused, their relative Muhammad Sharif (P.W.3). From their statements it is clear that the family including the complainant and the petitioner and his acquitted accused brothers were living in the same house. When the cash was removed from the safe by the petitioner and his co-accused Siddiq, Sharif, Mehraj Din and Allah Ditta etc. were called and cash demanded back who promised its return on the 40th day of the death and then refused. The family is locked in litigation. Hence the witnesses cannot be called independent and disinterested as against the petitioner and his co- accused. Even if the story as given by the witnesses is accepted as A correct, at the most, it would amount to a dispute between the family members as to their shares in the cash left by Muhammad Shafi deceased. In this view of the matter the charge under section 380, P.P.C. could not be said to be proved against the petitioner beyond any reasonable doubt.

4. The result is that the revision petition is accepted and the conviction and sentence passed upon the petitioner are set aside. He is on bail and stands discharged of the bail bonds, N.H.Q./M-424/L Revision accepted.