IN THE HIGH COURT OF SINDH BENCH AT SUKKUR
Versus
The State
|
Date of hearing |
28-04-2017
|
|
Date of judgment
|
28-04-2017 |
|
The appellant |
Muhammad Aziz s/o Muhammad Usman Korai, Through Mr. Shamsuddin N. Kobhar, Advocate
|
|
Respondent |
The State Through Mr. Abdul Rehman Kolachi, learned Assistant Prosecutor General for the State |
.-.-.-.-.-.-.-.-.-.-.-.-.
RASHEED AHMED SOOMRO, J. The appellant, namely, Muhammad Aziz s/o Muhammad Usman Korai was tried by the learned Additional Sessions Judge, Naushahro Feroze in Sessions Case No. 59/2005, for the offences under Sections 379, 411, 34 P.P.C and 126-B of Railways Act, registered at Police Station Moro, vide Crime No.38/2005. The appellant was convicted and sentenced to suffer imprisonment for two years U/S 411 P.P.C vide judgment dated 23.04.2011.
2. Brief facts of the prosecution case as narrated in the F.I.R. lodged by S.I.P Muhammad Azeem Rajper are that on 26.02.2005, he alongwith his subordinate staff was on patrolling within the jurisdiction of Police Station Moro. After having patrolled from different places, when they reached at Moro bus stop, they received spy information that accused Muhammad Aziz Korai, Buxian and Abdul Majeed used to commit theft of railway tracks and other steel of railway. That stolen iron is being kept in the store/Bhanda of accused Muhammad Aziz Korai. He was further informed that at present also accused are giving stolen railway tracks and other articles to accused Muhammad Aziz Korai. On receiving such information, complainant along with subordinate staff came at pointed place. At about 1:00 a.m (night) they reached near the store/Bhanda of accused Muhammad Aziz Korai, (scraper). On the headlight of vehicle, they saw there six accused present in the store. Out of them, three accused were identified by HC Nek Muhammad Chandio to be Muhammad Aziz Korai, Buxian Bhungoo, Abdul Majeed and three were unidentified. When police officials came close to accused, five accused to run away, whereas, one accused was apprehended on spot, who disclosed his name to be Muhammad Aziz Korai, resident of Moro town. Police officials noticed pieces of railway tracks and other iron articles were lying in the store of accused Muhammad Aziz. Arrested accused Muhammad Aziz disclosed the names of accused, who ran away to be Buxian Bhangoo, Abdul Majeed and 3 unidentified persons. He further disclosed that those accused after committing theft used to sale out him the railway tracks and other iron articles. Complainant took the case property viz. 56 pieces of railway tracks, (each of that was 6/7 feet in height), 18 steel plates, 4 bundles of iron wires, weighing about 2 mounds, a long gas cylinder and a gas cutter from the store of accused Muhammad Aziz and taken the same into his possession and arrested accused Muhammad Aziz Korai on spot. He prepared such mashirnama by nominating HC Hazar Khan and HC Nek Muhammad as mahirs. A note of Rs.100/- was also secured from the body search of accused Muhammad Aziz. Complainant brought accused and case property at police station Moro, where he lodged F.I.R of the incident against accused for offence punishable under Sections 379, 411, 34 PPC and 126-B of Railway Act.
3. The trial court framed charge against the accused Muhammad Aziz, Abdul Majeed and Buxian at Ex.02. Accused pleaded not guilty and claimed to be tried.
4. In order to substantiate the charge, the prosecution examined LPC Dilawar at Ex. 7, who produced mashirnama of arrest and recovery of case property (Exh.7-a), ASI Arbab Ali at Ex. 8, complainant ASI Muhammad Azeem at Ex.9, who produced mashirnama of arrest of accused at Ex. 9/A and F.I.R at Ex. 9/B, HC Nek Muhammad at Ex. 10, who produced mashirnama of place of vardhat at Ex. 10/A. Thereafter learned DDPP for the State, closed the side of prosecution vide statement at Ex. 11.
5. The statements of accused were recorded under Section 342 Cr.P.C. at Ex.12 to 14 respectively, in which they denied the allegations of the prosecution leveled against them. They claimed their innocence and false implication in this case. However, neither they have examined themselves on oath nor they led any sort of evidence in their defense. However, accused Muhammad Aziz produced some cuttings of newspapers got published by him against police officials at Ex. 12/A to Ex. 12/P.
6. Trial Court passed the impugned judgment dated 23.04.2011, in which the co-accused Abdul Majeed and Buxian were acquitted while the present accused Muhammad Aziz was convicted as above, who has filed the instant criminal appeal.
7. Mr. Shamsuddin Kobhar, learned counsel for the appellant has argued that the judgment of the trial court is much against the law, facts and equity and liable to be set-aside. Trial court has failed to appreciate the factual as well as legal aspects of the case while convicting the appellant as the alleged incident took place in the heart of Moro and there is availability of persons there, but police has not called any private person from the locality. He next contended that there are contradictions between the statement of complainant SIP Muhammad Azeem Rajper and H.C Nek Muhammad Chandio in respect of recovery. H.C Nek Muhammad clearly stated that when they received information driver was present at bus stop but SIO Azeem Rajper deposed in his statement that no any driver, conductor were available there, but this point was not considered by the trial court. He next contended that there is contradiction in the statements of complainant as well as mashir, the complainant clearly stated that tractor trolley was called by the P.C Khadim Hussain Mallah whereas mashir stated that SIO sent the P.C Abdul Razzaque for calling a tractor trolley, this point has not been considered by the trial court. He next contended that the property was not produced in the court and was not shown to the Railway Department. Lastly he has prayed for setting aside the impugned judgment and acquittal of the appellant.
8. Conversely the learned Assistant Prosecutor General has admitted that there are material contradictions in the depositions of P.Ws which have been pointed out by the learned counsel for the appellant. Therefore, he has not supported the impugned judgment passed by the trial court.
9. I have considered the above contentions of learned counsel for the appellant and learned Assistant Prosecutor General and have gone through the entire evidence minutely.
10. From the perusal of record, it reveals that according to the prosecution case, the recovery of Railway tracks, joint steel plates, rolls, iron wires and gas cylinders were effected on 26.02.2005 at 0100 hours (night) from the godwon of appellant. Perusal of mashirnama of arrest and recovery shows that it has been prepared at 0100 hours (night), while police party also left the police station at 0100 hours (night), whereas P.Ws in their evidence have deposed that they consumed about 45 minutes in counting the stolen railway articles and thereafter mashirnama was prepared.
11. Place of incident is situated in thickly populated area but none from the locality has been cited as mashir though police party had an advance spy information that the appellant is possessing stolen property.
12. According to the prosecution witnesses, the case property was shifted from the place of recovery to police station on tractor trolley with the help of two labourers and one driver, but they have also not been cited as witnesses or mashirs of the recovery.
13. Admittedly the case property belongs to railway department, but investigation officer has not bothered to record the statement of any railway official during the course of investigation nor I.O has received any complaint from the Railway department about theft of articles.
14. According to the complainant, the police party left the police station at 0100 hours (night) vide entry No.28, but such entry has also not been brought on record during the course of evidence.
15. Admittedly bus stand is near the place of recovery and the complainant party crossed the said bus stand, where drivers and other staff members used to remain present round the clock but not a single person has been cited as mashir.
16. Besides these glaring contradictions and discrepancies in the case of prosecution, it is necessary to mention here that in the present case two accused persons against whom the allegations of committing theft have been attributed, have been acquitted by the trial court, while present appellant against whom the allegations of Section 411 PPC have been leveled, has been convicted. It would be appropriate to reproduce the ingredients of section 411 PPC.
"Section 411.
Dishonestly receiving stolen property. Who ever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either disruption for term which may extent to three years or with fine or with both."
17. A bare perusal of aforementioned provisions of law clearly demonstrates that this section is directly not against the principal offender, such as theft, robbery or mis-appropriator, but against the clause of persons, who trade in such stolen articles known as receivers.
18. A person, immediately, after theft found to be in possession of stolen property, presumption would be that either he is thief or in possession of goods with knowledge that those are stolen.
19. Admittedly, mere possession of stolen property is not sufficient to constitute an offence under the aforementioned provisions rather in addition it has got to be established that the person in possession of the stolen property had dishonestly received or retained the property knowing or having the reasons to believe the same to be stolen.
20. The onus is always on the part of the prosecution to prove the essential elements of the offence. In case of failure on the part of prosecution to prove the basic ingredients i.e. receipt or retention of property belonging to some one else, the property being stolen one, existence of knowledge or belief on the part of the persons found in possession and the receipt and retention as dishonest, no conviction can be awarded.
21. The prosecution to establish an offence under Section 411 PPC, must not only prove that the property is stolen, but it must also be established that the person charged with being in possession of stolen property either know the property to be stolen or has reasonable grounds for believing the same to be stolen.
22. In order to constitute an offence under this section, the prosecution is not only required to prove the possession but also to establish the knowledge about the property to be stolen. In the present case, the prosecution has not adduced any evidence to the extent that when and were from property was stolen and how its possession was transferred. I.O has failed to record statement of any official of the Railway Department, nor any official has been produced before the trial court to depose that the property belonging to railway department and it was stolen on an specific date and time. The plea taken by the appellant that he is not shopkeeper but he is a journalist and has been booked in this case falsely on the pretext that he had published articles against the local police for not taking action against the narcotic dealers, has got substance.
23. Thus the prosecution has failed to prove the case against the appellant beyond any reasonable doubt. For creating shadow of doubt, it is not necessary that there should be many circumstances. If single circumstances creates reasonable doubt in the prudent mind, then its benefit has to be given to the accused not as a matter of grace or concession, but as the matter of right. This dictum is laid down in the case of Tariq Pervez V/S The State (1995 SCMR 1345).
24. In view of the above discussions, I have come to the conclusion that the case of prosecution against the present appellant is also not free from doubt, therefore the instant criminal appeal was allowed vide short order dated 28.04.2017 and the impugned judgment dated 23.04.2011 was set-aside. The appellant Muhammad Aziz was acquitted from the charge. The appellant was present on bail his bail bond stand cancelled and surety discharged.
25. These are the reasons of my short order dated 28.04.2017.
Judge
Sukkur
Dated: