1982 P Cr (PLP)

(b) Criminal Procedure Code (V of 1898)

S. 561-A-Quashment of proceedings-No stolen prize bonds recovered from accused petitioner's house and ziminis in such regard appearing to have been tampered with-Police Officer appearing in High Court in writ petition not referring to any part of property seized as having been stolen-Prize bonds, held, not recovered as alleged from petitioner's house and no further support available to extrajudicial confession made by co-accused against petitioner and petitioner's passport showing him as having left country and as being out of country on alleged date of commission of offence no case held, made out against petitioner

Case against petitioner quashed in circumstances. Dilawar Mahmood for Petitioner. M. Rafiq for A.-G. for the State. Dates of hearing : 11th, 13th, 17th and 18th of May, 1981. This is a petition under section 561-A, Cr. P. C. by Abdul Rashid, petitioner, for the quashment of a case under section 497/380, P. P. C. pending in the Court of Mian Kamalud Din, M. I. C. Faisalabad, in so far as it relates to himself.

2. The brief facts of the case are that on the night of 3rd/4th January, 1978 the shop of Ihsanul Haq, complainant, in Chiniot Bazar, Faisalabad, and the adjoining shop of Niaz Ahmad (run under the name and style of Chiragh Muhammad and Co.) were burgled and prize bonds lying in the shop of Chiragh Muhammad and Co. were stolen. On 4th January, 1978 Ihsan-ul-Haq, complainant, lodged, an F. I. R. in the said connection with Police Station Kotwali, Faisalabad. The same day, Niaz Ahmad, Proprietor of Chiragh Muhammad and Co., submitted a list of the prize bonds stolen from his shop, which included prize bonds numbering B. W. 021101 to B. W. 021103. On 8th January, 1978 re coveries were effected from the house of Abdul Rashid, petitioner, in the presence of Karamat Hussain, Muhammad Ashraf and Rana Asghar Ali A. S. I., P. Ws. The list of household effects, etc. recovered from the house of Abdul Rashid petitioner included 3 prize bonds of Rs. 10 each bearing No. B. W. 021101-3. On 9th January, 1978, Shahnawaz accused made an extra-judicial confession before Ihsanul Haq complainant and Akhtar Hussain P. Ws. admitting having committed the theft in company with Abdul Rashid petitioner, Muhammad Ashraf. Hafeez and Abdullah Pehalwan co-accused. On 17th January, 1978 Hafeez and Ashraf co accused made extra-judicial confessions before Ihsanul Haq complainant admitting that they had committed the theft in the company of Abdul Rashid petitioner, Shah Nawaz, Muhammad Ashraf and Abdullah co accused. On 18th January, 1978 the recoveries of certain properties were effected from the house of Muhammad Ashraf co-accused in the presence of Maqsood Ahmad, Bashir Ahmad and Rana Asghar Ali A. S. I., P. Ws. On 30th July, 1978 the challan against Shah Nawaz, Muhammad Ashraf, Hafeez and Billa were lodged in Court. Since Abdul Rashid petitioner was declared as a proclaimed offender, his case was held in abeyance. Later, after the petitioner was arrested a separate supplementary challan was submitted against him on 2nd September, 1980.

3. I have heard the arguments of the learned counsel for the peti tioner and the State and have also perused the record. The evidence against Abdul Rashid petitioner are the statements of Ihsanul Haq and Akhtar Hussain P. Ws. before whom Shah Nawaz, Hafeez and Ashraf co-accused made extra-judicial confessions admitting the commission of the crime in participation with Abdul Rashid petitioner and Abdullah. Still further, there are the statements of Karamat Hussain, Muhammad Ashraf and Rana Asghar Ali A. S. I. P. Ws. evidencing the recovery inter alia of the three stolen prize bonds bearing Nos. B. W. 021101-3 from the house of Abdul Rashid petitioner. It cannot be doubted that the evidence of a co-accused cannot be taken into consideration against the petitioner and no conviction can be based solely on such testimony. If there is other evidence lending support, then such a confession can be considered in conjunction with the supporting evidence. In the present case, the supporting evidence against the petitioner is the alleged recovery of the three stolen prize bonds from his house on 8th January, 1978. Strangely, however, when the petitioner's wife Mst. Nusrat filed a constitutional petition (Writ Petition No. 1504 of 1978) against the S. H. O. Police Station Kotwali, Faisalabad, on 21st March, 1978 relating to the recoveries effected from her house and alleging therein that her husband, i. e. the present petitioner, was out of Pakistan since July 1977 and that the said respondent had illegally seized her personal effects and was detaining the same unlawfully, the said respondent appeared in Court on 29th March, 1978 and promised to redress the petitioner's grievance and to return all her personal effects. While present in Court on 29th March, 1978 the respondent did not submit that any part of the property or for that matter the three prize bonds, recovered from the petitioner's house happened to be stolen property which he was intending to retain. His statement before the Court gave the impression that he was prepared to return all the household effects of the petitioner illegally seized by hits. The learned counsel for the petitioner has also shown to me photo copies of the application made by the petitioner to the Assistant Commissioner, Lahore, on 29th March, 1978 for the sapurdari of all the articles recovered from her house and the report of the Investigating Officer, P. S. Kotwali, thereon, which report of the Investigating Officer also does not show that he was intending to retain the three allegedly stolen prize bonds in his custody. On the contrary, in that report, he stated that nobody was claiming the listed articles and that there was no objection to the sapurdari. It is, therefore, apparent that no stolen prize bonds were recovered from the house of Abdul Rashid petitioner on 8th January, 1978. The learned counsel for the State who has inspected the ziminis also confirms that some tampering appears in the ziminis of 8th January, 1978. He submits that after paras 1 to 13 of the ziminis of the said date, paras, 11 to 17 appear thereafter, and that the wording of the last para of 13 ends abruptly. Irrespective of the fact whether the Investigating Officer, to cover up his illegal search, tampered with the ziminis to show that the three stolen prize bonds were recovered from the house of the petitioner in the search which was effected on 8th January. 1978 the fact remains that on 29th March, 1978 when Fazal Illahi, A. S. I. Police Station Kotwali, Faisalabad appeared in this Court B in Writ Petition No. 150 of 1978 he did not refer to any part of the property seized from the house of Mst. Nusrat as having been found to be stolen. In these circumstances, it is obvious that prize bonds Nos. B. W. 021101-3 alleged to have been recovered from the house of the petitioner, were not so recovered and that there is no further support to the extra judicial confession made by the three co-accused against the present petitioner. The original passport of the petitioner also shows tha he left Pakistan territory on 8th November, 1977 and did not return to the country till 21st July, 1980. 1n these circumstances, no case appears to be made out against the petitioner Abdul Rashid.

4. For the foregoing reasons this petition is accepted and the case under sections 457/380, P. P. C. pending in the Court of Mian Kamalua Din, Magistrate Ist Class, Faisalabad in so far as it relates to the peti tioner alone, is hereby quashed. Proceedings quashed.