1999 PLP 485 (MLD)

Dost Muhammad Khan for Respondent. Date of hearing: 23rd February, 1998. This State appeal under section 417, Cr.P.C. is directed against the acquittal order/judgment of the Judicial Magistrate-II, Bannu dated 8-12-1996, whereby he acquitted the accused-respondent of the charge against him and further directed to return him Rs.11,000.

2. According to the F.I.R. lodged by Khurshid Ali Head Post Man, General Post Office, Bannu on 30-7-1990 in Police Station Cantt. Bannu, he collected cash from various Sub-Post Offices and put the same in official red colour bag and placed it in the basket of his bicycle. He was on his way to the Treasury to deposit the amount in it, when at about 12.45 hours near the Cantt. Market a Motor Cycle on which two persons were riding came near him and took away the bag from the basket of the bicycle. They were chased but in vain. He apprised the Senior Post Master about the incident The snatched/stolen amount was Rs.32,800.

3. After completion of the investigation complete challan was put in Court on 1-3-1992. After compliance of the provision of section 241-A, Cr.P.C. formal charge was framed on 20-4-1992. In support of its case the prosecution examined seven witnesses. Khurahid Ali complainant reiterated the prosecution version. Jahanzeb Khan, A.S.I. partially investigated the case. He produced the complainant for the identification parade of accused through Tehsildar, Bannu and recorded the statements of prosecution witnesses under section 161, Cr.P.C. P.W. Taj Roayat Tehsildar conducted the identification parade of accused Farid Hussain and Muhammad Riaz inside District Jail, Bannu. P.W., Mohabat Khan S.H.O. deposed that the police party was on patrol duty in city Farid Hussain accused was brought to Police Station City by shopkeeper/Chowkidar who apprehended him while breaking into the shop. During the investigation accused Farid Hussain disclosed that he had also robbed a postman alongwith Muhammad Riaz and Abdur Rauf by taking away an amount of Rs32,

000. He then conducted the house search of the accused Farid Hussain and recovered an amount of Rs.11,000 lying in raxin bag from his house, which were taken into possession through recovery memo. Exh. PG. P.W., Habib-Zaman is one of the marginal witness of Exh.PC.

4. After closure of the prosecution evidence, statement of the accused under section 342, Cr.P.C. was recorded. However, he denied to record statement under section 340(2), Cr.P.C. on oath and to produce evidence in defence. At the close of trial, the learned Judicial Magistrate acquitted accused respondent Farid Hussain alongwith Abdur Rauf accused (not before me). Hence the present State appeal.

5. I have heard learned counsel for the State and the accused-respondent at quite some length.

6. Without dilating upon the evidence on the record it may be mentioned I that the trial Court while acquitting the accused-respondent ordered for the return of Rs.11,000 which were recovered by the police from the house of the accused-respondent. In the statement recorded under section 342, Cr.P.C, the accused-respondent denied any recovery from his house. The answer given to the question "whether amount of Rs.11,000 (stolen property) was recovered by the police lying in the raxin bag during search of your house," his reply was that the recovery memo. Exh. PC was fictitious and the recovery was doubtful and r nothing was recovered from his house. In view of such a statement the order directing to return Rs.11,000 to him. was without any basis. Likewise other evidence on the record was similarly read and the conclusion drawn is not in line with it, hence the same is unsustainable.

7. Accordingly this appeal is accepted, the impugned acquittal order/judgment of Judicial Magistrate-II, Bannu dated 8-12-1996 is set aside, and the case is remanded back to the trial Court having jurisdiction of Police Station Cantt. to decide it afresh keeping in view the evidence on record and if deemed necessary the Senior Post Master to whom the occurrence was first narrated by the complainant, be examined as a Court-witness in the case. The accused-respondent is directed to appear before the trial Court on 9-3-1998 and to ensure his presence on the said date before the said Court, he is allowed transitory bail in the sum of Rs.20,000 (rupees twenty thousands) on furnishing personal bond of the said amount to the satisfaction of the Additional Registrar of this Court. The trial Court on appearance of the accused before it may pass an order with regard to bail and is further directed to decide the case within a period of three months. The office should send the record forthwith to the Court concerned. H.B.T./58/P Appeal accepted.