1. This is a revision application against the judgment of the learned Additional Sessions Judge dismissing the appeal against the conviction and sentence passed by the Additional City Magistrate No. VIII, Karachi.
2. The appellant was a police constable in C. I. D. In 1962 and while Muhammad Bux complainant worked as a private typist in front of the Passport Office in Wood Street. In the same year four Bengalis namely, Musadar Ali, Altaf Ali, Sanawar Alain and Nur Mian, approached the complainant to arrange for the International Passport for them as they intended to leave for United Kingdom.
3. Each of them separately approached the complainant on different dates. It appears that on the first occasion the appellant who pretended to be an Inspector of Police was present with the complainant. He told the complainant that he was holding an inquiry into a case filed by Mr. Beg, the Passport Officer and so he would be able to arrange for the Passports and, therefore; the complainant agreed to intervene and induce the four Bengalis to pay money for arranging their passports. The amount settled for each passport was Rs. 5,000.
4. On 28th June 1962 Musadar Ali gave Rs. 3,400, on 27th July, Altaf Ali gave Rs. 3.600, on 8-8-62 Sanawar Alain gave Rs. 500 and on 4th October 1962 Nur Mian gave Rs. 1,700 and 1,300 to the appellant through the complainant. The appellant passed separate receipts for the amounts which were paid to him. The appellant promised to arrange for the passports. After a few days he took the four Bengalis with himself saying that he had arranged for their passports and flight. He took them to some place and leaving them there he disappeared without making to arrangement for their passport and flight. So they went and complained to the complainant. This was somewhere in'
5. December 1962. The complainant tried to contact the appellant but he was found absconding and, therefore, the complainant returned the amount to the four 'Bengalis which had been received from them and paid to the appellant.
6. The complainant took no further step as the appellant was not traceable. However, on 3-10-63 the complainant suddenly met the appellant in the town and demanded the money from him but the appellant caught hold of him by his neck and forcibly took him to Kharadar Police Station where the appellant lodged a report against the complainant. On 14-10-64 the complainant made an application to the Superintendent of Police who ordered an inquiry. The case was registered and after usual investigation the appellant was challaned for an offence under section 420, P. P. C.
7. The appellant proclaimed his innocence and denied the various allegations which had been made against him. He did not admit that he made any promise to arrange for -the passports or accepted any money. He also denied the execution of the receipts which were said to have been passed by him.
8. At the trial none of the four Bengalis for whom the passports had to be arranged were examined as they had already gone away to England, and were still there. The evidence which was examined consisted of Muhammad Bux complainant, Mehboobur Rehman, Dewar, Ali, Ghulam Hussain, Syed Ale Ahmed Handwriting Expert, Nabi Ahmed Head Constable in Special Branch, Mahfoozul Bari S. I.
9. P. Mr. Aziz Ahmad Inspector, CIA and Mr. Makimulla:h Police Constable. , On the assessment of their evidence the learned Magistrate came to the conclusion that the appellant had cheated-the Bengalis and realised .The amount as alleged through Muhammad Bux in order to arrange for their passports without any intention to fulfil it from the very beginning. Apart from the oral evidence he took into considera--tion the conduct of the appellant that he had disappeared after realising the money and put signatures in different manner on an application made for adjournment. He also observed that there was overwhelming evidence including the evidence of the Hand--writing Expert which was not challenged in any manner and the appellant alleged on malice, grudge of motive against the complainant to implicate him in the case. On the basis of the evidence he also came to the conclusion that the receipts for the money which had been produced bore his signatures. The appellant was, therefore, convicted for an offence under sec--tion 420, P. P. C. And sentenced to undergo R.
1. For 2 years.
10. Aggrieved by this conviction and sentence, the appellant filed an appeal and it was dismissed by the learned Additional Sessions Judge, Karachi, and the view taken by the learned Magistrate was confirmed. An objection was raised, before him that there was under delay in lodging the report, as it was lodged 2 years after the offence was, committed.. This objection was dispelled on the ground that the appellant was not available and the Bengalis were in a hurry to go -away and they actually left for U. K. And, therefore, the delay had occurred, and this was not fatal to the case.
11. Another ground that was taken before him was that the four Bengalis who had been cheated had not been produced. This also did not find favour with the learned Additional Sessions Judge and he observed that the complainant stood surety and actually repaid the money and, therefore, by discharging his obligation he stepped in the shoes of the persons who had been cheated.
12. I have gone through the entire evidence with the assistance of the learned defence counsel and the State counsel and I am of the view that the evidence which was produced in the case could not establish the case against the appellant. On the analysis of the evidence there is no doubt that the appellant undertook to arrange for the passports and the amount was actually received by him through the intervention of the complainant. On this point there is not only the evidence of the complainant but there is also the evidence of the attesting witnesses in whose presence the money was paid and the receipts were executed by the appellant, coupled with the evidence of Syed Ale Ahmed Handwriting Expert to whom the disputed writings as well as the specimen signature of the appellant Were sent and he found them having been written by the same person.
13. One of the witnesses is Dewar Ali, the brother of Nur Mian who was one of the Bengalis who needed the passports and had paid the money. He also stated that the money was paid by the various persons to the appellant and his brother Nur Mian too wanted to go to London and despite the fact that money was paid to the appellant for arranging the passport which could not be arranged and instead the appellant disappeared. His brother subsequently left for England and was still there.
14. However, the main question that still remains to be decided is whether the appellant although promised to arrange for the passport did not arrange and did not return the money to the complainant in order to bring the case within the mischief of section 420, P. P. C. I must say that in this the prosecution has' completely failed. In this connection the delay in lodging the report is very material and the view of the learned Additional Sessions Judge cannot be supported. The incident had taken place in December 1962 while the report was lodged in October1964. An attempt was made to explain it by the allegation that the appellant had absconded and was not traceable and therefore, the complaint was delayed. Even this ground is not available as admittedly the complainant was able to meet the ap--pellant in October 1963 and there was also an altercation and both of them had actually gone to the police station where according to the complainant the appellant had lodged a report against him, yet the complainant did not make any report against the appellant for cheating. Not only that but he still waited for another year. So the delay at least from October 1963 to October 1964 stands completely unexplained. According to the evidence of Nabibux Head Constable who was examined at the trial and had brought the service book, the appellant was on sick leave from 11th June 1962 to 10th May 1963. Thus it is clear- that the appellant was on duty from 11th May 1963 till October 1964. The observation of the learned Additional Sessions Judge that the delay yeas caused as the appellant had disappeared is not available to this latter period and no attempt was made to deal with this. The delay is unquestionably fatal to the present case and this reflects against the conduct of the complainant. This would further tend to create a doubt upon the allegation that the money was not returned by the appellant to the Bengalis or the complainant. In this connection the fact that the Bengalis had not been examined will also become material as there would remain the bare word of the complainant which in view of the delay is unacceptable. It appears that the complainant and the appellant had formed a racket to procure passports by illegal means. The allegation of the complainant that the appellant pretended to be Inspector of C. I. D. Also does not appear to be true as admittedly the appellant was known to him since several years and, therefore, he could not pretend to be an Inspector. Reliance was placed upon the letters written by the four Bengalis and sent to the complainant by post but these letters are not covered by any section of the Evidence Act and are, therefore, inadmissible in evidence. So the` letters could not be relied upon for any purpose.
15. In the result the revision petition is allowed and the judgments of the two Courts below as well as the conviction and sentence passed against the appellant are set aside and he is acquitted. He is on bail and his bail bonds are discharged.