' This appeal is directed against the judgment, dated 29-10-1984 passed by the learned Additional Sessions Judge (Hudood Court) East, Karachi, whereby he has convicted the appellant under sections 454, 411, P.P.C. And sentenced him to suffer R.I. For a period of one year and a fine of Rs,5,000, in default to suffer further R.I. For a period of one month for each count separately.
2. The prosecution case is that the complainant was the tenant of the appellant-accused in respect of shop built in House No, B-117, Khudadad Colony, Karachi, on monthly rent of Rs,100 only.
The complainant had gone to Sargodha on 2-6-1983. He had locked the said shop wherein four petrol engines of 4 horse power, one generator of 1-1/2 K.Wt. Two iron girders valued about Rs,15,000 and one wooden table were lying. On 27-6-1983 the complainant returned to Karachi from Sargodha and found that his shop was in occupation of a tailor master. He was informed that the applicant-accused had taken illegal possession of the shop by breaking open the lock and had removed the above articles therefrom by committing theft. The F.I.R. Was lodged on 29-8-1983 at 10-35 hours at Brigade Station. The police investigated the case and challaned the accused for offences under sections 455, 454, P.P.C. Read with section 9 of the Offences Against Property (Enforcement of Hudood) Ordinance, 1979. Having framed the charge on 6-8-1985 the learned trial Court recorded the evidence of the parties. The prosecution examined P.W.1 Muhammad Hanif, the complainant, (Exh.4) who for the first time deposed that on enquiry Manzoor and Naseer Khan had informed him that the accused had broken open the lock of the shop and taken away the articles therefrom. A tailor master was found in occupation of the shop as stated in the F.I.R. It was further deposed that he informed him that he was tenant of the accused. He also deposed that the stolen property was shown to him by the police at the police station and that he identified it there. He also deposed that there was a compromise arrived at between him and the accused in suit filed by the latter against him for mesne profits vide Exh.10. None of the alleged eye-witnesses has been examined. Only one witness, namely, P.W.3 Muhammad Manzoor, was produced by the prosecution but he was not made available for cross-examination and hence his evidence had to be discarded. The other witness examined by the prosecution was Muhammad Ishaq, A.S.I., who had investigated the case. His deposition is to the effect that he had arrested the accused vide Mashirnama (Exh.16) and that the accused had confessed before him that he had kept the stolen articles at his house which were, on his pointation, recovered from his house on 30-8-1983 vide Mashirnama (Exh.12). There is yet another witness, namely, P.W.2 Bashir Ahmed, who is Mashir of recovery of the 'stolen goods from the house of the accused in Khudadad Colony. During his cross- examination he admitted that he was resident of Jacob Lines whereas the house of the accused was in Khudadad Colony and that there was no other person with the accused to identify the recovered articles. He further admitted that many persons had assembled seeing the police yet none of them was made Mashir of recovery.
3. The accused in his statement under section 342, Cr.P.C. Denied the allegations made against him and pleaded to be not guilty. He also examined one witness, namely, D.W.2, Salamat Khan, in support of his case. In his own statement he admitted to have allowed the complainant to live in his shop without payment of rent. He also stated that the accused had vacated the shop himself one year back and had gone to Punjab. It was further stated by him that he was falsely implicated in the case at the instance of Javed Anjum, Head Moharrir of Brigade Police Station with the help of the complainant, Muhammad Hanif. He also examined himself as his witness under section 342(2), Cr.P.C.
4. The learned trial Court framed following points for determination: "(1) Whether the accused above-named trespassed into the shop which was in possession of the complainant with intention to commit theft?
(2) Whether accused committed theft surreptitiously of the property exceeding the value of Nisab from the 'Hirz' of the complainant?
(3) What offence, if any, the accused had committed?"
' He held the points Nos. 1 and 2 in the affirmative and, consequently, sentenced the accused as stated above.
5. I have heard Mr. Qamar Muhammad Khan for the appellant and Mr. Himayat Ali Prizada for the State.
6. It was contended by the learned counsel for the appellant that there was a delay of over 2-1/2 months in lodging the F.I.R. For which no explanation was tendered. He also emphasised that there was no evidence available on record to establish the removal of the articles and taking possession of the shop by the accused. He also urged that the learned trial Court failed to give consideration to the fact that a compromise was arrived at between complainant and the accused during the proceedings in the suit for mesne profits filed by the accused against the complainant. Learned counsel for the appellant also submitted that no offence under section 454, P.P.C. Was made out inasmuch as the complainant had himself admitted that he was not present in the shop when the lurking trespass was allegedly committed. Assailing the evidence of P.W.2, Bashir Ahmed, he submitted that he was not a person of the locality and although it has come on record in his evidence that there were quite good number of persons available on the site when the police had gone to recover the said stolen articles from the house of the accused.
7. Mr. Hamayat Ali Pirzada has also not supported the impugned judgment by contending that the learned trial Court had failed to give due consideration to the inordinate delay of over 2 months in the alleged commission of the offence noted by the complainant and in making of the F.I.R.
8. I have carefully gone through the evidence brought on record on behalf of the prosecution and I find that the prosecution has utterly failed to establish the facts so as to bring home the offences with which the appellant was charged. The inordinate delay of over 2 months in lodging the F.I.R. Is by itself fatal to the case. This important aspect of the case was not given due consideration by the learned trial Court. No explanation whatsoever justifying the delay has been given by the complainant himself. It is further clear from the evidence that has come on record that there was no proof of the alleged recovered articles being owned by the complainant inasmuch as he had not given any specific particulars with regard to any of these items allegedly stolen away or removed from the shop which was allegedly in occupation of the complainant. Besides, there is no iota of evidence available on record to establish the breaking open of the lock by the accused and his having allegedly removed the case property from the shop. In the FIR. The complainant did not mention the names of the persons who had allegedly informed him of the accused having committed the alleged offences. However, during his examination-in-chief he, for the first time, deposed that 'on inquiry Manzoor and Nasir Khan informed me that accused broke open the lock of the shop and took away my articles kept in the shop. The prosecution, however, did not examine any of them to substantiate the above belated version of the complainant.
' For the foregoing reasons, the appeal is accepted and the conviction and sentence are set aside.