' Appellant Muhammad Shahbaz, stands convicted under section 392, P.P.C. And sentenced to R.I.
For five years and fine of Rs,20,000, in default whereof to suffer R.I. For three months more. He has been given benefit of section 382-B, Cr.P.C. Vide judgment dated 26-11-2002 passed by the learned Sessions Judge, Karachi (South) in Sessions Case No,216 of 2002.
2. The prosecution case briefly stated is that on 11-3-2002, complainant Imran, lodged F.I.R. At Kharadar Police Station stating that he along with his employee, Saeed Ahmed, were present in his office situated in Writer Chambers. Two persons entered into the office at 1-30 p.m. One of them took out a pistol and demanded money from them. The complainant due to fear, give them rupees ten thousand lying in a drawer. After taking cash, both the culprits went away. The complainant and his employee raised cries and also chased them. One Head Constable, Muhammad Rasheed (P.W.1) on duty at that place, was attracted and thus, succeeded in catching hold of one culprit, from whom he secured Rs,10,000 cash who disclosed his name as Muhammad Shahbaz, the present appellant. Another culprit allegedly managed to escape. The appellant thereafter was taken to Kharadar Police Station along with recovered amount where the F.I.R. As aforesaid was lodged.
3. The police after concluding investigation submitted challan. The learned trial Court at the conclusion of the trial convicted and sentenced the appellant as stated above.
4. Charge (Exh.2) was read over to the appellant to whom he pleaded not guilty and claimed trial.
The prosecution in support of its case, therefore, examined four witnesses and then closed its side.
The appellant was examined under section 342, Cr.P.C. Wherein he denied the prosecution allegations. He examined himself on oath and led no further evidence. In his further statement, however, he has stated as follows:-- "I am innocent and has falsely been implicated in this case. I was running with the public at the time of incident, when I was mistakenly apprehended and taken to police station, where money was demanded from me, which I could not pay, therefore, this false case has been registered against me. I pray for justice."
5. In his statement on oath (Exh.10), the appellant has stated same story i,e, that on the day of incident I was running with the public, when I was mistakenly apprehended and brought at Kharadar Police Station. Police had demanded illegal gratification from me and since I could not pay the same, therefore, I was implicated in this false case. Nothing was recovered from me. I am innocent. Pray for justice.
6. It was contended by the learned counsel for the appellant that most important witness, namely, complainant, Imran, who was also a Mashir of recovery was not examined at the trial, thus, there has occurred violation of section 103, Cr.P.C. It is also argued that the, denomination of the recovered currency notes has also not been mentioned.
7. On the other hand, learned counsel for the State, has opposed the appeal stating that the prosecution witnesses are independent, they had neither any hostility with the appellant nor were known to each other. Replying to the contention of the learned counsel for the appellant as to non- examination of the complainant, it was submitted that summonses and notices were repeatedly issued from time to time against the complainant but the same could not be served. It was, 'however, argued that non-examination of the complainant in the circumstances of the case would not be fatal to prosecution.
8. I have heard the learned counsel for the appellant as well as the learned counsel for the State and have also perused the evidence on record and the impugned judgment Head Constable Muhammad Rashid of P.S. Kharadar was on duty near the place of incident when he found some persons following the culprits. Accordingly, he also followed the culprits and succeeded in apprehending the appellant and also recovered from him cash of Rs,10,000. Saeed Ahmed is another witness of prosecution who was also working in the office situated in Writer Chambers and he was present along with the complainant in the offence when the alleged incident took place. He is one of the persons who chased the culprits and is a witness to the arrest and recovery of cash from the present appellant. He has also acted as Mashir of arrest and recovery.
9. No animosity is alleged against the above witnesses nor any motive for false implication of the appellant is disclosed. Though no coercive process was issued for attendance of the complainant, Imran, yet in the circumstances and for the fact that Saeed Ahmed (P.W.3) has deposed what complainant Imran would have also deposed, therefore, non-examination of the complainant Imran would not be fatal to the A prosecution. Indeed it has not come on record if the cash/property belonged to the complainant Imran or he was a victim of the commission of offence of robbery in person.
10. As far as the second contention regarding non-compliance of section 103, Cr.P.C. The record reveals that P.W. Saeed Ahmed who is a private person has acted as Mashir of arrest and recovery therefore, no violation.
11. A perusal of the entire evidence on record, particularly that of the Head Constable Muhammad Rashid and Saeed Ahmed P.W. Is sufficient to prove the guilt of the appellant. The appellant has rightly been convicted and sentenced as above.
12. Resultantly, the judgment of the trial Court is upheld and the appeal is dismissed.