1. ' The present appellant has preferred this appeal under section 417(2-A), Cr.P.C. Against the judgment dated 16-11-2000, passed by learned IIIrd Additional Sessions Judge, Karachi South, in Criminal Appeals Nos.38 and 39 of 2000 and Criminal Revision No,63 of 2000, whereby the respondent No,2 was acquitted by the learned IIIrd Additional Sessions Judge, Karachi South.
2. ' Brief facts of the case are that on 26-2-2000 complainant Abdul Sattar lodged F.I.R. At Police Station Frere, Karachi, alleging therein that he was residing in Flat No,S-234, SRE Sabir Korangi Road, Karachi. On 25-2-2000, he alongwith his family went to Dalmiah to see his relatives. At about 10-00 p.m. When he came back to his home, he found that the locks of flat's main entrance and rooms missing and broken. He noted the household articles lying scattered. On search, he found Rs,62,000, three golden sets one brief case, four lady finger rings one cabin golden alongwith locket, one pair of ear-ring, one wrist-watch of white dial, missing and were stolen away. Hence he went at police station and lodged the F.I.R.
3. ' During the investigation on 3-3-2000, the Investigating Officer, A.S.-I. Abdul Aziz alongwith subordinate staff went at Naval Check Post of Naval Police and in presence of Muneer Ahmed and Petty Officer Farzand Ali, interrogated two suspicious persons, namely, Khurram Shahzad, the younger brother of complainant Abdul Sattar and Saleem Shahzad the relative of complainant.
4. During the interrogation Khurram Shahzad disclosed that some days prior to incident, at the instigation of aleem Shahzad, he got prepared the duplicate keys of the locks of flat of complainant. He further disclosed that on 25-2-2000, his brother and mother had gone to see the relatives, he and Saleem Shahzad opened the lock with duplicate keys, committed theft and stole away the golden ornaments and cash. Khurram Shahzad further disclosed that the stolen property is lying with Saleem Shahzad. The Investigating Officer thereafter interrogated Saleem Shahzad. He disclosed that he has converted the jewellery in shape of pieces, which are lying in his shop.
5. Thereafter accused Saleem Shahzad led the police party towards his shop Madina Jeweller situated at Delhi Colony, Sarafa Bazar and took out cash of Rs,56,550 from the drawer of show case and three small size pieces of gold, weighing about 19.500 grams and produced the same before the Investigating Officer. After completing usual investigation the Investigating Officer submitted challan in the competent Court of law.
6. ' During the trial, the prosecution has examined the complainant Abdul Sattar at Exh.3, he produced the F.I.R. At Exh.3/4, Mashirnama of place of incident at Exh.3/B, P.W. Muhammad Miskeen at Exh.4 he produced the Mashirnama of arrest at Exh.4/A, Mashirnama of recovery at Exh.4/B, P.W.
7. Muhammad Haneef was examined as Exh.6, P.W. Farzand Ali as Exh.7, Investigating Officer P.W.10, A.S.-I. Abdul Aziz as Exh.8; thereafter Prosecution Inspector closed the prosecution side vide statement as Exh.9.
8. ' Accused Saleem Shahzad was examined under section 342, Cr.P.C. At Exh.10, wherein he has denied the allegation. However, he has admitted that he produced the abovementioned property before the Investigating Officer and claimed the said property to be of his own property.
9. ' The trial Court after hearing the parties and going through the evidence adduced by the prosecution passed the orders in the terms as stated above.
10. ' Mr. Khawaja Naveed Ahmed, learned counsel for the appellant has argued with vehemence that on 3-3-2000, recovery has been effected on the pointation of the respondent No,2 and the same has been recovered from the shop of Jewellery Punjab Colony, Karachi cask of Rs,56,950, 26 Tolas gold are said to have been recovered in presence of H.C. Miskeen and Petty Officer from Navy. He has further argued that there is evidence against the present respondent in the shape of extra- judicial confession and key maker Muhammad Hanif has also deposed against the respondent No,2 and the judgment is not based on the sound reasons and he has not appreciated entire evidence. He has further contended that the property in question for some time being owned by respondent No,2. In fact 'the property belongs to the appellant and the Appellate Court has wrongly ordered that the property in question be handed over to respondent No,2.
11. ' On the other hand, Mr. Ghulam Ali Shaikh, learned counsel for respondent No,2 has contended that the judgment is based on sound reasons. No illegality has been committed, learned trial Judge has properly taken into consideration the entire evidence and there is no wrong with the judgment and the appeal is liable to be dismissed.
12. ' Mr. Habibur Rashid, learned counsel for Assistant Advocate-General for the State has also supported the judgment and has further contended that there has been no miscarriage of justice to the appellant in view of judgment delivered by the Appellate Court..
13. ' I have considered the arguments rendered by Mr. Khawaja Naveed Ahmed, learned counsel for the appellant, Mr. Ghulam Ali Shaikh learned counsel for respondent No,2, Mr. Habibur Rashid, learned counsel for Assistant Advocate-General for the State and have gone into consideration the relevant documents and other material available on record particularly impugned judgment dated 16-11-2000.
14. ' Admittedly the prosecution has come forward with the piece of evidence against respondent No,2 in the shape of extra-judicial confession; the evidence of key maker is being corroborated by recovery. As far as the statement of accused before the police (extra-judicial confession) dated 3- 3-2000 is concerned, it has got no evidentiary value in view of Article 38 of Qanun-e-Shahadat.
15. Moreover, the piece of evidence in the shape of extra-judicial confession is a weakest type of evidence corroborated by other evidence. As far as key maker, who has been examined as Exh.80 is concerned, admittedly, the occurrence has taken place on 25-2-2000; recovery has taken place on 3-3-2000 and the statement of accused has been recorded on 3-3-2000 and he has named key maker yet the afore-named key maker Muhammad Hanif has been examined by the police on 8-3-2000 and there is delay of 5 days in recording his statement under section 161, Cr.P.C. Which goes unexplained by the prosecution. I have also examined the impugned judgment and have not been able to find any wrong with the judgment; on the contrary the evidence of key maker has been considered by the Appellate Court as well as other aspect of the case has been properly evaluated by the learned IIIrd Additional Sessions Judge, Karachi South. With regard to the property in question I am of the considered view that this point can be agitated before the proper forum in order to establish the ownership, which is being claimed by both the parties in respect of the properties in question. I do not find any substance in the arguments of Mr. Khawaja Naveed Ahmed learned counsel for the appellant and there is no wrong with the judgment passed by the IIIrd Additional Sessions Judge, Karachi South. Accordingly, this appeal has no merits and is dismissed.