The four appellants in this case were tried by an Additional City Magistrate of Karachi who was empowered under section 30 of the Criminal Procedure Code and were convicted by him under section 393 read with section 397/34 of the Pakistan Penal Code and sentenced to seven years' R. I.
And to pay a fine of Rs. 500 or to suffer in default of payment of fine a further 4period of six months'
R. I.
2. The prosecution case was-that the first informant, Syed Mohiuddin, was the Manager, at the material time, of a Carpet Factory in Korangi and that on the 4th of November 1967 he -drew a sum of Rs. 35,000 from the Victoria Road Branch of Habib Bank Limited for the purpose of payment of the salaries of the persons employed at the Factory. Accompanied by one Abdul Sattar (P. W, 5), commonly known as Mamajee the Supervisor of the Factory he travelled in his cpr bearing No. KAB 7551 towards the Factory and when they entered the industrial Area he had to stop the car because some body threw a stone at the car which hit the glass. Meanwhile two other persons also came up, one of whom was holding a Pistol in his hand. These three persons then at the pistol point demanded the money which apparently they knew that the first informant was carrying and the key of the car. In the meantime, however, P. W. 2 Akbar, another employee of the Factory came up on a cycle and two other 'passers-by one of whom was P. W.
9. Jaffer Khan. The result was that the three culprits attempted to run away in different directions but one of them being chased was caught. This person is now stated to be Zahoor, appellant No. 1. Zahoor was then taken in the car to the Factory where he was left while the first informant and the said Mamajee went to the Police Station Korangi and reported the matter. A Sub-Inspector of Police and two --constables then came to the factory from where the first informant informed the employer and the tatter also came: to the police station. It is said that Zahoor made some statements which indicated that out of the culprits was Salim, applicant No. 2. From information received from Salim the names of the other two appellants, namely, Jamshed ant Ashraf also transpired and a starch was made for them but it does not appear that, at drat time at basti, they were found Zahoor, according to the first informant, remained with the police. The first informant and the others returned from the police station to the factory at about 6-00 pm surprisingly enough it is then stated that the Seth went to the Incharge of the Police Station at his residence for registration of the F. I. R. On the next day at 2- 00 p.m. Although the first informant has --earlier said that the matter has already been reported.
Be that as it may, the story goes on that on the next day the Incharge-- of the Police Station said that there was no case against the accused persons but they could, however, report to the Navy Office because one of the appellants was said to, be employed in, the Navy. Apparently nothing was done thereafter until prosecution witness No. 15, Misbahul Islam, a press reporter of the Daily Mashriq upon information given to him by the first informant, published a report in the Daily Mashriq on the 10 --of November 1967. This report is in the following terms:--- "An invain attempt of dacoity. (Photo)
An attempt to loot Rs. 35,000 Syed Mohiuddin Sated from the Manager of National Carpet Industries.(Photo)
Abdul Sattar Khan Mamajee.
The remand of one accused is obtained white the search four the other accused persons is being made Karachi 9th November (Staff Reporter) The Korangi Police produced accused Zahoor, implicated in accusation of attempt of decoity, in the Court of-- Additional City Magistrate, Mr. Qasmani ands has obtained the remand for one week while the other accused Salem is released on bail. The search for the remaining three accused persons, is being made who had escaped.
According to the police report on 4th November at 2 p.m. Syed Moinuddin, Stated, the manager of National Carpet Industry was going to, the factory situated in Industrial Area, Korangi to distribute the salaries of the employees. He bad Rs. 35,000 with him. As soon as the car of Mr. Sated reached near the factory in, Korangi area, one of the three persons standing in the way, threw a stone on the car from the front side, whereupon Mr. Saeed stopped the car. Just after the car had stopped, all the three persons, encircled the car from three sides and one of them took Mr. Sated and his companion Abdul Satter Khan Mamajee at the point of the pistol and ordered to hand over the money and the key of the car to him. Complainant Mr. Sated got down the car and tried to catch bold of the accused persons whereupon all the three persons ran away in different directions. Mr. Sated at once started the car, chased and caught hold of one accused Zahoor. Mr. Sated handed over the accused to the police. The police made enquiry from the accused on which he disclosed all the facts and told that one factory employee Saleem had informed him that Mr. Sated was coming with Rs. 35,000 in Car No. 7551/KAB to distribute the salaries whereupon the other two accused parsons, whose real names are Jamshed and Ashraf, had jointly provided a pistol and had made the programme in the morning to loot the money while sitting in a hotel at Korangi No. 6, and in accordance with the same programme accused Zahoor, Jamshed and Ashraf who were armed with knife, pistol and hand clip stood in the way while Saleem stood at a distance of 50 paces to order to give the signal to denote that the car was approaching. The police continued to make enquiry from Seem and Zahoor up to 7th of November and continued the search for the other remaining accused persons. Thereafter on 7th of November the case was instituted and accused Saleem was released on bail and further investigation was started to be made after obtaining the remand of accused Zahoor."
3. The next stage of the case appears to be a written report dated the 13th of November 1967 signed by the first informant and addressed to the Deputy Inspector-General of Police, alleging theth incident substantially as I have stated it above and alleging that from the 4th of November, up to the 7th of November the police had been recording statements on plain paper but had taken no action thereafter. It also alleged (what is admittedly a fact) that on the 13th of November the Daily Mashriq contradicted its previous news report but this, it is alleged, was at the instance of the police officer concerned since clearly the report originally had caused a very serious reflection upon the police.
4. The prosecution the examined in this case a number of witnesses butt the material ones are the first informant, Akbar (P. W. 1), Abdul Sattar (P. IV. 5) and two others, namely, Jaffer Khan (P. W. 9) and Baboo Khan (P. W. 10). The last named is also an employee of the factory but Jaffer Khan is a person who: happened to be passing by the scene and who is said to have helped in the chase.
5. The case against the appellants depends entirely upon the oral testimony only of these witnesses. There is no question of any recovery in this case nor indeed is it alleged that the thirty- five thousand rupees which the first informant had a: the relevant time were in fact removed from his possession. Long arguments have been addressed to me upon various contradictions in tote case but I think this can be decided upon a simple point with regard to the appraisal of the evidence. The crime, if it took place at all, occurred on the 4th of November 1967 and the first information report which is now out the record as such is admittedly recorded on tile 14th, but based upon the written report made to the Deputy Inspector. General, Police on the 11th. According to the witness whom I have mentioned, appellant Zahoor was caught at the scene and taken to the factory from where he was taken to the polite station and again brought to the factory where he remained In custody of the first informant or his subordinates. Now quite obviously the matter was either reported on the 4th and neglected by the police or it watt not reported until the 13th. If the former was the case, then there seems to be no town at all why the police should fail to arrest Zahoor. In any case, some witness at least should be able to say as to what happened to Zahoor thereafter, that is to say, that he remained continuously in custody or he was allowed to go away.
But all the witnesses are silent upon point. Nor has' the Prosecutor put to any of the police officer an suggest that an F. I R. Was infect attempted to be any question to lodged on the 4th or that information of any kind, whatever, was given to the police on that date. I, therefore, asked the court for the state as to what was his position, that is, whether or not the matter was reported to the police on the 4th. He felt the obvious difficulty In taking the stand that the matter was in fact reported to the police on the 4th inasmuch as no explanation could then fns offered as to what happened between the 4th and the 13th in regard to Zahoor or in regard to the investigation generally. He, therefore, stated that the State case was that the matter watt not reported until the 13th.
6. In this view of the matter, namely, that the matter was not reported until the 13th, gave difficulties obviously arise accepting prosecution case In the first place when an F I. R. Is recorded as many as 9 days after the occurrence and there is no circumstantial evidence whatever not only to implicate the persons but even to establish that a crime took place, it becomes well nigh impossible to hold that a crime did in fact occur. Secondly, if it is to be accepted that the report was a belated as this was, then that part of the story which relates to the apprehension and the subsequent confining and custody of appellant Zahoor, whether by the police or otherwise, becomes entirely incredible and yet this fact is a common feature of all the 5 eye-witnesses. It is of course true to say that even thong the evidence of a witness may be found unreliable is particular part, it is yet open to the Court to accept the evidence of that witness, as to other facts. But this is very far fro saying that when a witness is found not only unreliable buy clearly untruthful in regard to a very major feature of to prosecution story, his testimony should still be relied upon a to the rest of the story without very strong corroboration indeed. The feature of the story in which these witnesses a thus found untruthful is not merely a major part of the story; it is almost the whole story itself. So far from there being any corroboration the case rests entirely upon the evidence of these witnesses. I find it impossible therefore, in any view of the case, to maintain the convictions of these appellants and I do not, therefore, think it necessary to examine the evidence of such immaterial witnesses as persons who searched for various accused persons, police officers or the defend witnesses. The appellant, Zahoor, has in fact put up a plea that this was the result of enmity inasmuch as he was a former employee of the carpet industry and that there has been disagreement between him and the management. I consider it futile to enter into any discus--sion of this defence case. I cannot, as I have already said, hold that the prosecution have made out their case at all.
7. In the result, I allow this appeal and set aside the convictions and sentence of the appellants. The appellants are on bail and their bail bonds would be discharged.