1968 (PLP)

Dates of hearing : 13th and 14th December 1967. This revision application is directed against an order dated 19-3-1966 passed by the learned Additional Sessions Judge. Karachi, whereby he dismissed the applicant's appeal against his conviction under section 394, P. P. C. by the trial Magistrate. who had sentenced him to four years R. 1. and to, pay a fine of Rs. 500 or in default to suffer six months R. I.

2. The brief facts of the prosecution case are t at 'a66ut' 12-30 p.m. on 26-5-1958, the applicant removed from the pocket of Mubarak P. W. 2 Rs. 700 and in the process inflicted on his person injuries with a knife. An F.

1. R. of the incident was lodged the same day but the accused could not be apprehended as he had allegedly absconded. The trial Court after recording some evidence kept the case file pending until the applicant was apprehended seven years later from Lea-Market by Sher Khan S.

1. P. The case was re-opened and the learned trial Magistrate at the conclusion of the trial convicted the applicant.

3. To begin with, I asked the learned counsel for the applicant to point out as to how under its revisional jurisdiction under section 439, Cr. P. C., this Court could interfere when the two learned lower Courts, after appreciating the evidence on record, convicted the applicant. The learned counsel requests for time to satisfy me on this point and the case was accordingly adjourned for today. He has now invited my attention to a reported case of the Supreme Court of Pakistan reported as Feroz Khan v. Captain Ghulam Nabi Khan (PLD1966SC 424) where at page 431, their Lordships observed: "Interference in revision; need not be confined to cases where the order of the Court below is `manifestly wrong or perverse or is based on the view of the evidence which no ,judicial officer would take', as was pointed out by the Federal Court in Anwar and others v. The Crown. But the discretion vesting in the High Court under section 439 of the Code of Criminal Procedure has to be exercised in accordance with the dictates of justice and not arbitrarily, or in a fanciful manner." Similar view was taken by their Lordships of the Supreme court in a recent judgment reported as Mrs. C. M. Samuel v. C. Samuel (PLD1967SC334). At page 337 their Lordships were pleased to observe- "The rule about concurrent findings of two Courts on a question of fact being upheld, does not, however, apply to criminal cases and the learned Judge of the High Court was competent to examine the whole evidence to come to his own finding on this point." A 'K ' In view of this state of the law, as declared by the Supreme Court of Pakistan, I personally went through the evidence on record with the assistance of the learned counsel for the applicant. The conviction of the applicant was grounded on the evidence of Suleman P. W. 2 Saeed P. W. 3 and Dr. Major Hasan P. W.

4. Suleman P. W. 2 was an employee of Mubarak P. W. at the time of occurrence. This by itself is no circumstance to disbelieve Suleman P. W. 2 but even otherwise his evidence does not inspire confidence. He admitted in cross-examination that he had seen the applicant only once or twice prior to the occurrence and yet after seven years he was able to recognize him in Court when the applicant had grown a beard, which he did not possess at the time of the incident. No identification parade was held so as to ascertain the identity of the applicant and the possibility that the applicant has been shown to the witness before he identified him in Court cannot be ruled out altogether. Furthermore, occurrence had taken place in the crowded commercial area of the old city of Karachi and it appears altogether strange that no one from the vicinity was cited as a witness of occurrence. Suleman P. W. 2 stated that he had raised an alarm when the accused, after removing the money from the pocket of Mubarak P. W., started running away and yet no one apprehended the accused. For all these reasons I am of the view that it would be altogether unsafe to rely on the evidence of this witness, to the prejudice of the applicant, when it has not been corroborated by any independent circumstance.

4. The learned Additional Sessions Judge also placed reliance on the evidence of Saeed P. W. 3 who stated at the trial that on 25/26th May 1958, he was present at the Napier Police Station when the applicant was brought and from his person blood stained shirt was removed. However, the witness has apparently told lies because mashirnama Exh. P-1, to which he was a witness, mentioned that the shirt in question was removed from the person of Mubarak P. W. and not the applicant. In any case the applicant could not possibly be present at the Police Station, because according to the prosecution, he had absconded and was in fact declared as an absconder by the trial Court. For all these reasons the evidence of this witness is also of no help to the prosecution.

5. The evidence of Dr. Major Hasan P. W. 4 is also of no avail to the prosecution because it was not disputed that Mubarak P. W. had received injuries allegedly at the time of occurrence. After going through the entire evidence on record 1 find no justification for the conviction of the accused. This revision application is allowed and the conviction and sentence of the applicant is set aside. In the result his bail bonds are also discharged immediately. Petition allowed. :