1992 PLP 922 (MLD)

Criminal Appeals 66 of 1991, 75 of 1991 and Criminal Jail Appeal No.J‑104 of 1991 have been respectively filed by appellants Yaqoub Masih, Afzal Masih and Yousuf Masih. These appeals are directed against the judgment passed on 24‑2‑1991 by the First Additional Sessions Judge, South, Karachi in Sessions Case No.1363 of 1985 whereby the appellants have been convicted under section 392 read with section 34, P.P.C. and sentenced to R.I: for ten years and fine of Rs.50,000 and in default in payment of fine suffer further R.I. for three years. Since these appeals are directed against the common judgment are being decided by this judgment. On 26‑5‑1985 at 4.00 p.m. one Shaukat Ali, Incharge of Super Utility Store, situated on V Sunset . Line, Phase 11, Defence Housing Authority, Karachi went to the Police Station Defence Society (District Karachi South) and lodged a complaint which reproduced hereinbelow:‑‑‑ "I am discharging my work in Utility Stores Corporation, 24/C, Marhaba Court, Sunset Line No.5, Phase 11 Defence since March 1985. Today on 26‑5‑1985 at 12 o'clock in day 1 was busy in working in the Store when some customer has stolen Rs.1,314 from the cash register. I have been searching but could not ascertain. I lodge the report. Action may be taken." His complaint was registered under Article 14 of the Islamic Tazeerat as Crime No.120 of 1985 of that Police Station. The Police after usual investigation sent up all the three appellants to stand trial for offences under section 392/397/34, P.P.C. read with section 20, EHO. They were ultimately tried by the First Additional Sessions Judge,, Karachi South, and sentenced as stated above. The prosecution is support of their case examined complainant Shaukat Ali (P.W.1), Zahid Ali Memon (P.W.2) who had witnessed the inspection of the scene of offence and signed the Masheernama of Wardat and Muhammad Usman (P.W.3) Inspector of Police who had recorded the F.I.R. and inspected the scene of offence and thereafter handed over the investigation to Inspector Majid Hussain. After examining these witnesses and a process server, Muhammad Ishaq, as Court witness to prove non‑availability of certain other witnesses the prosecution closed their side. Accused persons in their statements recorded under section 342, Cr.P.C. denied the allegations of the prosecution and did not examine themselves on oath or any witness in their defence. The Trial Judge on the basis of the evidence mentioned above recorded the conviction of all the three appellants in the case. It is against this judgment that the three appeals by the convicts have been filed. Mr. M.L. Shahani, Advocate for appellant in Criminal Appeal No.66 of 1991 contended that the appellant has been convicted on the solitary evidence of complainant who completely abandoned his version stated by him in the F.I.R. and advanced a completely new version of the incident. His evidence has 'not been corroborated by any other witness not even by the Inspector of Police. The Investigating Officer who had completed the investigations has also not been examined in the case. Mr. Ghulam Sarwar Chohan, Advocate for appellant in Criminal Appeal No.75 of 19)1 supported the arguments advanced by Mr. M.L. Shahani and further pointed out that the case diary of 22‑4‑1991 signed by the Trial .Judge clearly shows that appellant Afzal Masih was acquitted though the judgment recorded in the case convicts him. Appellant Yousuf Masih in Criminal Jail Appeal No.104 of 1991 was present and heard in person. Shaukat. Ali, complainant, in the case when examined in the Court stated that on 2G‑;5‑1985 at 12 noon three persons entered the Utility Store, forcibly opened the safe and they took away an amount of Rs.1,

314. He further complained that his wrist watch was snatched from his hand so also the wrist watch of his assistant Rauf. Thereafter, the culprits drove away in a white car. Subsequently the three applicants were put to identification test before a Magistrate and he had identified them. In his examination‑in‑chief he also showed his doubts about identification of one of the accused in the case. The other witness Zahid Ali (P.W.2) working under the complainant, merely stated that he had witnessed the Inspection of Wardat by the Police and signed the Masheernama. All the three appellants were unrepresented in the Trial Court and therefore witnesses were not cross‑examined. Mr. Zaheeruddin appearing for the State did not support the judgment of the Trial Judge. Complainant in his case, according to his earlier version, recorded in the F.I.R., had merely stated that somebody had taken away cash from the Store. He neither gave number of thieves nor their description, nor any particular of their entry into the Store and their escape from it. He in his evidence gave an altogether different version. No other evidence was led against the appellants in the case connecting them with the commission of offence. The Magistrate before whom identification test was held or the Mashirs of such test or even the police officer who completed the investigation were not examined in the case. The appellants were unrepresented in the case and the Trial Judge even did not put any question to the witnesses examined before him to sift the truth. A Judge or a Magistrate trying accused for having committed certain offence is not required by law to merely perform a function of a dictaphone. He in order to discover and obtain proper proof of relevant facts of a ease is authorised to put any quc,1ions in any form without any restriction to a witness as under Article 161 of the Qanun‑e‑Shahadat particularly in a case like the present one where the Police Officers have shown no interest to conduct investigation in order to detect the criminals and accused were sent by them for trial without sufficient evidence. The trial Judge too in this case did not put any question to the witnesses examined by the prosecution to find out the truth. I am constrained to observe that Police in this ‑case have merely tried to unfairly score marks by showing that they have detected an offence. The appellants were indeed convicted and sentenced as stated above on the basis of no evidence. The judgment convicting the three appellants impugned in these appeals cannot be maintained. I had, in view of above, by my short order passed on 19‑1‑1992, set aside the judgment of the trial Judge, allowed the appeals and directed that appellants be set at liberty if not required in any other case. N.H.O./Y‑61/K Appeals allowed.