' The brief facts of the matter per F.I..R No,260 of 1998 lodged at Police Station Kalri on 1-12-1998 at 0915 hours are that on the same day the Complainant Hyder Ali was sleeping in his house when at about 8-15 a.m. He was awakened on the cries of his wife. Thereupon, he saw that three persons were standing in his house and had held up his wife on the point of a T.T. Pistol. When the complainant tried to get up two accused persons approached him out of whom one was armed with the T.T. Pistol and the other empty handed. The former told the complainant not to move and keep his eyes down and closed. The complainant obeyed their instructions, whereafter one of the accused locked his wife in the bath room and all of them searched his house and took out gold ornaments from the almirah and while leaving after committing theft, instructed the complainant and his wife not to come out. After a short while the accused persons came back when the complainant noticed that one of them was Gul Khan who had been his former employee. The names of the remaining accused persons which the complainant learnt later were Saifullah and Faqir Gul. Gul Khan who was armed with the pistol told the complainant that the residents of the building had closed the main gate on the ground floor, therefore, if the complainant took them out, all the stolen property would be returned to him otherwise he would be shot. Then the complainant accompanied them in order to take them out of the main gate of the building. When they reached the ground floor it was found that many persons had gathered in the lane. The complainant asked them to unlock the gate but nobody complied, whereafter the complainant as well as the accused came back to the house. Then A.S.-I. Muhammad Younus of Police Station Kalri arrived with a police party and at the complainant's pointation the police arrested the accused persons as well as seized the stolen property and recovered the T.T. Pistol from the possession of accused Gul Khan.
Thereafter, the police brought the complainant as well as the accused persons to Police Station Kalri where the F.I.R. Was lodged.
2. The accused were challaned before the VIth Judicial Magistrate Karachi South, whereafter the charge was framed against them. All the accused pleaded not guilty and claimed their trial.
3. The prosecution examined Hyder Gul the complainant as well as witnesses Raja Shafqat Hussain and Abid Yousuf. So also Investigating Officer A.S.-I. Muhammad Younus was examined whereafter their side was closed. The statements of the accused were recorded under section 342, Cr.P.C.
Whereby they declined to be examined on oath and also to lead evidence in their defence.
4. At the time of arguments the learned Judicial Magistrate made a reference to the learned Sessions Judge, Karachi South for further proceedings since the offence which was punishable under section 392, P.P.C. Was triable both by the learned Magistrate of the First Class as well the learned Sessions Judge. The learned Sessions Judge thereafter transferred the case to the learned Additional District Judge, Karachi South who after hearing arguments of the learned counsel for the appellant as well as the learned State Counsel convicted the appellant/accused under sections 392 and 34, P.P.C. And sentenced him to R.I. For 5 years and fine of Rs,5,000. The benefit of section 382-B, Cr.P.C. Was granted to the appellant.
5. In support of the appeal Mr. Umar Farooq Khan has firstly submitted that the mandatory provisions of section 364, Cr.P.C. Have not been complied with viz. Upon recording of accused's statements under section 342, Cr.P.C. The same should be signed by the Magistrate and a certificate as required under the law delivered which has not been done. Hence per the learned counsel since a fundamental legal defect is apparent on the face of the record, the appeal should be allowed and the matter remanded back for retrial.
6. Learned counsel had further submitted that the matter should not have been sent to the learned Sessions Judge by the learned Magistrate as the latter also had the power/jurisdiction to try the case. Resultantly the appellant has been deprived of the right of a first appeal, since from the decision of the Judicial Magistrate an appeal lies to the Sessions Court. In the alternative learned counsel has submitted that the matter should have been tried de novo before the learned Sessions Judge as two separate procedures are provided in the Cr.P.C. Viz. For a sessions trial and trial by Magistrate.
7. In support of his submission learned counsel har relied upon:--
(a) Allah Rakhio v. The State 2001 PCr.LJ 1959, (b) Abdul Sattar and others v. The State 2001 PCr.LJ 1945 and (c) Sikandar v. The State 1990 PCr.LJ 396.
8. The learned State Counsel has not opposed the contentions of Mr. Umar Farooq Khan whereafter I had reserved judgment. However, whilst going through the file, I had formed a tentative opinion that the merits of the case also need to be gone into and hence had issued notice to both the learned counsel for rehearing whereafter on 1-6-2002 I had, vide a short order, allowed the appeal.
The following are the reasons for the same.
9. As regards the legal objections raised by Mr. Umar Farooq Khan, it would be seen firstly that per the R&P, the requisite certificate of the learned Magistrate is available on the section 342 statement of the appellant and other accused. Hence this objection is not sustainable. Secondly, the appellant fully participated in his trial both before the learned Magistrate as well as before the Additional Sessions Judge without raising any objection and hence raising of the same at the appellate stage is again without any merit and as such overruled.
10. On the merits of the case it would be seen firstly that the prosecution version suffers from a number of contradictions and hence in my opinion, the guilt of the accused has not been proven beyond any shadow of doubt as to the offence in question. In this regard reference can be made firstly to the examination-in-chief of P.W.1 complainant Hyder Ali wherein he has stated that the T.T.
Pistol in question was recovered from one of the Accused but he does not know from whom and also that the memo. Of arrest Exh.3A as well as memo. Of the scene of occurrence Exh.3C were prepared at the police station, where he had signed the same. However, as opposed to the statement of the complainant in Court it would be seen vide Exh.3A which is the memo. Of recovery that the T.T. Pistol was recovered from Gul Khan which was thrust in the folds of his Shalwar. So also vide Exh.3A the alleged stolen gold ornaments were produced by the complainant as the property looted by the accused, which was also taken into custody being stolen property. This is again a clear contradiction since the complainant has in no uncertain terms stated in his examination-in- chief that the gold ornaments were collected by the police.
11. Next reference can be made to the deposition of P.W.2 Raja Shafqat Hussain who has stated that at about 8-15 or 8-30 a.m. On the day of incident he was present out side his house in Gali No,5 Bihar Colony, Karachi when he heard some cries and learnt that some dacoits had forcibly entered into Aisha Manzil whereupon he at once went to the place of incident and discovered that the main gate was locked. He then peeped into the house of the complainant and found three dacoits present there. Thereafter, the witness came to the house of P.W. Abid and informed the police about the dacoity and in response to which the police party headed by A.S.-I. Younus of Police Station Kalri came at the spot and then the witness opened the gate with the key handed over to him by P.W. Abid. The police party arrested the three dacoits in the presence of the witness and conducted their search but nothing was recovered from them. Then the complainant handed over the gold ornaments to the police which per the complainant were snatched by the accused persons. The witness has further testified that he had heard that a T.T. Pistol was recovered from the possession of accused Gul Khan. However, the same was not seen by him. This statement of the witness again contradicts the contents of the memo. Of recovery which clearly mentions that the Pistol in question was recovered from the folds of Gul Khan's Shalwar.
12. Reverting now to the statement of P.W.-3 Abid he has also maintained that he did not witness the recovery of the T.T. Pistol in question from Gul Khan but later came to know that the same was so recovered from him. The witness also could not identify the accused who were present in Court or the Pistol but only said that perhaps the bag lying in the Court was the same which was handed over by the complainant to the Police. Again the testimony of Abid is belied by the contents of the memo. Of recovery since the said witness has in no uncertain terms stated that the pistol in question was not recovered in his presence.
13. As regards the testimony of P.W. S.-I. Muhammad Younus, it would again be seen that this is contradictory to that of the other prosecution witnesses, since he has maintained that the T.T. Pistol in question was recovered from Gul Khan and that the complainant had handed over the stolen property to him.
14. Finally it would be seen that admittedly the P.Ws.2 and 3 viz. Raja Saifullah and Abid were on friendly terms with the complainant and hence as they were interested witnesses their testimony cannot be accepted at face value without independent corroboration which is absolutely lacking in the matter since quite strangely none of the adjoining residents of the flats in Aisha Manzil who were the natural witnesses to the alleged crime were ever examined. Similarly no police witness was examined, although admittedly, seven police officials went to the scene of occurrence in two police mobiles. This aspect compounded with the fact that P.W. Shafqat was known to S.-I.
Muhammad Younus. In my view causes further doubt in the matter as does the fact that admittedly there was a monetary dispute between the appellant and the complainant. Similarly, the fact that P.W. Abid could not recognize the accused in Court, although he had allegedly witnessed their arrest per Exh.3-A also cannot be lost sight of.
15. For the foregoing facts and reasons in my view, the prosecution version is riddled with contradictions and hence giving the appellant the benefit of the doubt, this appeal was allowed vide a short order passed on 1-6-2002. The above are the reasons for the same.