P L D 1962 (W (PLP)

FARUQUI, J.‑Mr. Rasul Bux B. Laghari Additional Sessions Judge, Jacobabad, by his judgment dated 13‑7‑59 acquitted accused Shamdas who was being tried for the robbery of Rs. 29,

703. To the judgment he appended an order which reads as follows;-- "The lungi the malatia shirt, the white shirt and the Thaila (bag) be auctioned and sale proceeds be credited to Government. The revolver, the bullets and the licence be returned to witness Acharmal the lock and key be returned to the accused. The cash of Rs. 29,703 be returned to witness Acharmal." Zakaria son of Wali Muhammad who was the complainant in the robbery case filed an appeal before this Court against that part of the above order which relates to the delivery of the sum of Rs. 29,703 to Acharmal.

2. The Additional Advocate‑General and ex officio Public Prosecutor also filed an appeal against the acquittal of Sliamdas accused. Shamdas in the meantime had crossed the border and gone over to India and become untraceable, and on 17‑11‑60 a Bench of this Court adjourned the acquittal appeal sine die till Shamdas was found.

3. The appeal of Zakaria first came before one of us as a single Judge matter but as the appeal against acquittal is to be heard by a Bench the case was referred to the Senior Judge who constituted the present Bench for the hearing and disposal of this appeal.

4. It would be necessary to briefly state certain facts of the main case as was put forward by the prosecution for the purposes of the disposal of this appeal. These are : Complainant Zakaria is a commission agent at Sukkur and the cloth merchants of Kandhkot, Karanpur, Ghouspur and other places used to purchase cloth from Sukkur through Zakaria who used to go and collect the dues from the said merchants once or twice in a fortnight. On 8‑6‑58 he left Sukkur for collecting his dues. He first came to Shikarpur and from there he went to Karanpur. There he collected a sum of Rs. 7,550 from several cloth dealers. He also collected a Hundi for the sum of Rs. 800 from Chandomal who had to pay him this sum. In the evening on the same day he went to Kandhkot and recovered Rs. 15,353 from various cloth dealers. He had kept all this money in a bag which he was carrying with himself. He then left Kandhkot in a lorry for Ghouspur, where on the 9th he recovered a sum of Rs. 6,

800. Thus in all he recovered a total sum of Rs. 29,703 from the three towns mentioned above. The total number of persons from whom all this money was recovered was thirty, and out of them all but two were examined as prosecution witnesses in the case to prove the fact that Zakaria had collected the various sums from them. On the same day, that is 9‑6‑56, Zakaria went to the bus stand at Ghouspur and boarded the bus for Shikarpur at 3 p.m. When this bus had travelled about 3 furlongs it was stopped by a person whom the driver of the bus took to be a passenger. This person pointed a revolver at the driver and told him to switch off the engine. He then ordered the passengers to get down from the bus leaving their luggage inside. The man with the revolver then catered the bus and asked the driver to drive on. After the bus had gone about two furlongs the bus was ordered to be stopped and the man walked out of it with the gunny bag which belonged to Zakaria and entered into the Jungle. The face of this person was muffled. After he had disappeared, the passengers came to the bus and started verifying their belong?ings and it was then that Zakaria cried out that his "Thaila" (bag) containing cash had been taken away. The bus with the passengers was taken back to the Ghouspur Police Station but as no police officer was there they proceeded to Kandhkot where Zakaria lodged his report which was recorded by S. H. O. Mr. Wilayat Khan at 6 p.m. The Sub‑Inspector then went to the vardat, made, certain investigation on the site, had the footprints tracked and he later received information that Shamdas, the accused in this case, had been seen going towards Jungle at 4‑30 p.m. Shamdas was brought to the police station and on inquiry made by him he undertook to produce the property involved in the robbery and also the revolver. He took the police and the Mashir to his otak and he took out the key from the folds of his pyjama and opened the lock and took the party to the room on the western side and pointed out a cot in which quilts were lying. He removed the quilts and from underneath the clothes he produced a revolver with the belt containing eight bullets. One of them had been fired and one was misfired. He also produced a `Thaila' containing cash. This was opened and in it currency notes of Rs. 29,703 and the Hundi of Chandomal was found. A mashirnama of the currency notes and the Hundi was prepared by Sub‑Inspector Wilayat Khan. It is Exh.

107. The numbers of the currency notes were also noted down and the list is attached to the mashirnama. The revolver was also seized. After completing the investigation Shamdas was sent up for committal proceedings and the case after the necessary inquiry was committed to Sessions and he was tried by the Additional Sessions Judge, Mr. Rasul Bux Laghari. A very large number of witnesses were examined for the prosecution and considerable amount of documentary evidence was also produced. The learned Additional Sessions Judge held that the prosecution has failed to prove the case against the accused beyond reasonable doubt. He, therefore, gave him the benefit of doubt and acquitted him. With regard to the property he passed a separate order which is now before us In appeal.

5. In the course of the trial of Acharmal, the father of the accused Shamdas who was mentioned in the reserved list of the challan and who had neither been examined as a witness in the committal Court nor was reserved for examination In the Sessions Court, entered the witness box in the Court of Session as P. W.

16. In what circumstance he came to be so examined is shrouded in mystry. The only statement which he made in examination‑in‑chief was that he knew the complainant. After that there appears the following note: "At this stage Mr. Aziz states that he does not want to examine him as he says he is the father of the accused." He was however allowed by the Court to be cross‑examined by the defence Advocate Mr. Ghulam Kadir and he gave the following story: That the police had come to his place at midnight time in connection with the investigation of this case and told him that his son Shamdas was suspected in the robbery and this witness was given a threat that he would be put in Jail. He, therefore, opened his safe, which contained in all Rs. 20,355 which was taken by the police and he was told to complete the balance of the amount which had been the subject‑matter of the robbery. He was maltreated by the police and was released on 11‑6‑59 and then he got Rs. 10,000 from one Golomal to whom he had lent this amount and he paid this amount to the Sub‑Inspector. Acharmal had evidently brought his books of account and he produced them in Court to prove that he had the money which was recover?ed from him by the Sub‑Inspector at night and he also showed entries to show that he had given Rs. 10,000 on loan to Golomal and he had recovered it from him. Curiously enough there was also the entry about payment of the two sums of money to the Sub‑Inspector. His story was that a month before he had entered into an agreement for the sale of his land to one Muhammad Chuttal and from whom he had received a sum of Rs. 30,000 as earnest money and that the sums of Rs. 20,000 and Rs. 10,000 mentioned above were those moneys which he had received from Muhammad Chuttal. He went on to explain that he had not obtained any receipt from the Sub‑Inspector because he was in fear of being put in jail and he did not complain to anyone as his matter was sent to Court. At the end of this cross‑examination there is a note "No re‑examination". This happened on 26‑6‑59.

6. On 27‑6‑59 when all the prosecution witnesses had been examined and only the Sub‑Inspector Wilayat Khan had remained, an application was made by the defence counsel for the examina?tion of Gurdinomal, the brother of accused Shamdas, as a Court witness. It will be useful to reproduce this application and the order passed by the Additional Sessions Judge on it: "It is submitted on behalf of the accused that in the above case, Gurdinomal is a prosecution witness, who is said to have paid Rs. 700 to the complainant and obtained a receipt on a Hundi. But the complainant party does not want to produce him as a witness and give him up. They have also produced Acharmal father of the accused as a witness. They had no harm in producing Gurdino as a witness. It is therefore prayed that the Honourable Court may kindly call him in evidence as a Court witness in the interest of justice. (Sd.) Illegible Advocate for defence. Granted Mr. G. Kadir states that he has no objection if A. P. P. X Examined this witness at the end. (Sd.) R. B. Leghari Additional Sessions Judge, Jacobabad." Gurdinomal was examined the same day as a Court witness and in the examination‑in‑chief he stated that he knew Zakarla who was a commission agent and he used to buy cloth through him and that he was on a visit to Ghouspur in order to recover his dues and had recovered from him Rs. 700 on account of cloth purchased. In the evening he had come to know that Zakaria had been robbed of his money and then he stated as follows: "At midnight time police had come with mashirs Piromal and Ghulam Rasul Shah to our otak. I was sleeping in my house. I was called by my father. I went to the otag. Police had secured a pistol of my father and money. Police had not made inquiries from me." After the examination‑in‑chief by the Court had been finished it was the A. P. P., to whom this witness was tendered for cross-examination first, through it was implied In the order which has been reproduced above that the A. P. P. would cross examine this witness at the end. In this cross‑examination he admitted that the Superintendent of Police had also come to Ghouspur in connection with this investigation and they did not complain to the S. P. or the Deputy Commissioner that Wilayat Khan had taken their money. He was next cross‑examined by the defence counsel and he produced an agreement on a one rupee stamp upon the basis of which Acharmal had claimed to have received Rs. 30,000 from Muhammad Chuttal. He then went on to repeat more or less the story which Acharmal had given and he also testified from account books which Acharmal had produced.

7. We have dealt in some detail with this evidence and the manner in which it came to be recorded because the order of the learned Judge with regard to the disposal of the cash is mainly based upon this evidence.

8. The story that the sum of Rs. 29,703 really belonged to Acharmal and was recovered from him by the Police by threats in two instalments, was for the first time put forward in the evidence of Acharmal. There had been no suggestion of it any time before. When the accused was examined in the committal Court he was pointedly asked to explain the evidence of the recovery of Rs. 29,000 at his instance from underneath the quilt along with the Hundi of Chandomal, and his only answer was a simple "No" He made no claim to that money nor did he say that it belonged to Acharmal) nor that it was recovered by the police from Achar?mal under threats. On the other hand, we find that when the money was seized by the Investigating Officer Wilayat Khan on the night of 9th June 1958 a full and exhaustive mashirnama was prepared by him which was signed by the Sub‑Inspector and the two mashirs, namely, Piromal and Ghulam Rasool. In the body of the mashirnama not only the seizure of the amount of Rs. 29,703 is shown but it is also stated that there were 215 notes of Rs. 100 each, 611 notes of 10 each, 390 notes of Rs. 5 each and 143 notes of Re.

1. The total of this comes to Rs. 29,

703. With the Mashirnama is also attached a list giving the numbers of all these notes. Wilayat Khan in his evidence, after stating that he had recovered this sum at the instance of the accused Shamdas from under the quilt, went on to say that after he had secured the property he had sent a telegram to the Superintendent of Police at about 7 a.m. on 10‑6‑

58. On the record there is a telegram which was sent by S. I. P. Khandkot (Wilayat Khan) and addressed to the S. P. It was received by the S. P. at 10‑12 a.m. The body of the telegram reads as follows: "Robbery 29,000 rupees detected, property recovered, accused arrested, crime 48/1958." The Additional Sessions Judge declined to admit this telegram. He was clearly wrong in doing so. But even if this telegram is not taken into consideration there is the clear evidence of Wilayat Khan that after recovering the whole of the money he had sent a telegram to this effect. He is supported in this by the mashir?nama Exh. 107 and the evidence of Piromal, one of the Mashirs. He further stated that the S. P. of Jacobabad came on 11‑6‑58 at 8 a.m. and he saw the accused and the amount recovered and he sealed the cash himself. Now if the whole of the amount of Rs. 29,703 was seized on the night of 9‑6‑58 the story of Acharmal and Gurdinomal that part of it was recovered from him on that night and the balance on 12‑6‑58 must fall to the ground. This decisive circumstance has been explained away by the trial Judge in the following way "He (Wilayat Khan) states that in the evening (it should be morning) on 10‑6‑58 he had sent a telegram to the Superinten?dent of Police, Jacobabad, informing him that he had secured the property in the case. There can be no dispute over it. The fact is that he had at least Rs. 20,355 in his hand on that day. For the remaining amount he was given an assurance. This does not mean that the amount that he had secured was the amount of robbery." It is unthinkable that the Sub‑Inspector would have sent the telegram, in the terms that he did, merely upon the assurance of Acharmal that he would make good the whole amount by paying the balance of Rs. 9,

348. It is admitted by Gurdinomal that the Superintendent of Police had come to Ghouspur in connection with the investigation of this case. Could the Sub‑Inspector face him without the whole amount of the robbery of which he had informed him and the description of which he had given even in the body of the mashirnama? It is also clear to us that if Wilayat Khan had recovered even a part of the amount from Acharmal under threat, the latter or his relatives or friends would have certainly complained about it to the S. P. who came to Ghouspur on 11‑6‑

58. Acharmal was not such a weakling. On his own showing he was the leader of one of the two parties in Ghouspur town. To say that he was brow‑beaten into making over his own money to the Sub‑Inspector without even a semblance of protest, is completely unworthy of belief. The further question arises as to why should Acharmal agree to pay the exact amount of the stolen money to the Sub‑Inspector. What was he to gain by it ? Surely he must have known that by handing over this money to the Sub‑Inspector he was tightening the noose round the neck of his son Shamdas.

9. Another circumstance which establishes that the money was seized in the manner as deposed to by Wilayat Khan Is the fact of the finding of the Hundi of Chandomal in the bag in which the money was found. Admittedly the complainant Zakaria had gone about collecting his dues. The Hundi is expressly mentioned in the mashirnama Exh.

107. Chandumal bad been examined as P. W.

9. He has identified the Hundi and has said that this was in part payment of the sum of Rs. 1,200 which he bad to pay to the complainant Zakaria. This Hundi was drawn against Seth Amulmal who also bad been examined and had stated that he had account with Chandomal and he would have paid this money If he had brought the Hundi to him. The trial Judge has dismissed the evidence of Hundi on the ground that it had not been mentioned in the F. I. R. nor did Chandomal mention it in his statement before the police or in the lower Court. The fact that this Hundi was sized on the night of 9th of June is established beyond doubt by the mashirnama which was prepared that night. The fact that Chandomal did not mention it must be due to such a question not having been asked from him. We see no reason why even after the recovery of the whole amount of the robbery the Investigating Officer should have found it necessary to obtain a Hundi from Chandomal and introduce it in the case for the purpose of identifying the amount of the robbery.

10. The money was found in a Thaila. This Thalia (bag) was also seized. Zakarla has identified this Thalia and so have a number of other witnesses. The accused does not claim this Thaila to be his. The learned trial Judge says that the identifica?tion of the Thaila is not satisfactory. But that does not take away the effect of the evidence of the Sub‑Inspector and the mashir and the mashirnama which establishes that a Thalia was seized and that it contained the whole amount. Acharmal does not say that he handed over the first instalment of the money in this Thaila.

11. We will now briefly deal with the evidence of Acharmal and the documents that he has produced. The learned trial Judge has repeated ad nauseam that Acharmal was a prosecution witness and it was as such that he had produced the documents, viz., the account books in which the entries are made. We are clear that the evidence of both Acharmal and Gurdinomal was In the nature of defence evidence and should not have been allowed to be introduced in the manner in which it was done. That Acharmal is a prosecution witness and Gurdinomal is a Court witness does not affect the position that the former was the father and the latter the brother of the accused. The only explanation which Acharmal gave about this belated disclosure may be reproduced in his own words: "We did not complain to anyone as the matter was sent to Court. We waited to disclose this in Court in order to escape harassment." We find it impossible to accept this explanation. We have examined the cash book and the Khata which are the main books upon which reliance was placed. While we were examining the page of the cash book on which the relevant entries are made we discovered that the preceding page had been torn out and a remanent of it was still there at the root where the binding of the book is done. We pointed this out to Mr. S. S. Shaikh who appeared for the heirs of Acharmal. Besides, the nature of the entries are inherently artificial. For instance, the payment of Rs. 20,355 and Rs. 9,348 is recorded as if it was a normal trans?action. As for the Khata we found that it contained blank pages between the written ones and it would not be at all difficult to make interpolation in such a book. Over and above this, the most compelling circumstance, which makes the evidence of these books unworthy of credit is that, these were not disclosed until Acharmal produced them from his possession in the course of his evidence, and he made no mention of this fantastic story at any time earlier.

12. Gurdinomal, apart from repeating what Acharmal had said, produced a document under which Acharmal had received Rs. 30,000 from Muhammad Chuttal. It is from this money that the payment is said to have been made to the Sub‑Inspector. This document is written on a one rupee stamp. It relates to the sale of 309 Jareeb of land at the rate of Rs. 300 per Jareeb. This Rs. 30,000 has been shown to have been received as earnest money. The balance, according to this document, was to be paid at the time of the execution and rceistration of the sale deed which was to be done after obtaining a certificate from the Deputy Custodian, Sukkur, and another certificate from the Deputy Com?missioner, Jacobabad. It must be noted that Rs. 30,000 constitu?ted almost the entire consideration of the sale of the said land. That Muhammad Chuttal would have paid this money to a Hindu without either a certificate from the Custodian or the Deputy Commissioner is extremely difficult to believe. Muhammad Chuttal himself has not been examined nor has Golomal been examined to whom Rs. 10,000 are said to have been given out of Rs. 30,000 on loan and upon the recovery of which the second instalment is said to have been paid by Acharmal to Wilayat Khan. We have no hesitation in rejecting this document. And if this story of the receipt of Rs. 30,000 from Muhammad Chuttal, a month before the Incident, is disbelieved, the whole plank of the defence story is knocked out.

13. The trial Judge himself held that there was no doubt that robbery of Rs. 29,703 along with Thaila in which the cash was lying, was committed at the pointing out of a revolver and that this fact was not disputed by the accused. Even otherwise there was overwhelming evidence of this fact and every bit of Rs. 29,703 was proved by independent evidence to have been collected by Zakaria on his round. We are satisfied that this was the money which was seized by the Sub‑Inspector only a f ew hours after the robbery.

14. Mr. A. K. Shaikh, Assistant Advocate‑General appear?ing for the State, supported the appeal of Zakaria. Mr. S. S. Shaikh, the learned Advocate for the heirs of Acharmal, did not say anything about the merits of this appeal, nor did he question the competency of this Court to decide it independently of the acquittal appeal. What he stressed was that inasmuch as the decision on the point involved in this appeal would inevitable affect the appeal against the acquittal of Shamdas, the decision oil this appeal should be deferred until the other appeal comes to be heard. We would have certainly preferred to do so when we asked Mr. Shaikh If he could give us any hope of the return of Shamdas to Pakistan he frankly stated that he was not in a position to do so. We ourselves feel that there is no such pros pect. If he had to come back he would not have gone away to India soon after his acquittal and remained there until now. Id there was any indication of his coming back surely Gurdinomal' would have been able to say so to his lawyer in the present appeal. We, therefore, cannot defer sine ate the decision of this appeal.

15. For the reasons given above we set aside the order of the Additional Sessions Judge in so far as he has directed the pay?ment of the sum of Rs. 29,703 lying in Court to Acharmal. We further order that this money shall be paid to Zakaria to whom it undoubtedly belonged. We cannot part with this case without recording our dissatisfaction with the manner in which this matter has been dealt with by the Additional Sessions Judge. It has left a bad taste in the mouth. K. B. A. ??????????? Order set aside.