ABDUL BARI vs THE STATE and others

' This criminal appeal is preferred by Abdul Bari. Appellant, from jail against the impugned judgment, dated 31-7-2004 of the learned Judicial Magistrate (with Section 30 powers) Banda Daud Shah, Karak, whereby he has found the accused/appellant guilty of the charges under section 380/457, P.P.C. And convicted him to 7 years' R.I. 3 years R.I. Respectively with fine of Rs,2,000 in default whereof to suffer further two months S.I. Both the sentences were ordered to run concurrently and the benefit of section 382-B, Cr.P.C. Was extended to the appellant.

2. Briefly stated the facts of the case are that in between the nights of 9th and 10th of October, 2001, theft of household articles took place from the house of Ajmal Khan, resident of Dairki Banda, who reported the matter to the police on 22-10-2001 in the words that he is employed in Pakistan Army and posted at Bahawalpur. A few days ago on receipt of information he came to home where his wife informed him that in between the night of 9-10-2001 and 10-10-2001 she along with her mother and niece Mst. Mahnaz daughter of Baitullah and other children were asleeping in the residential room when at about 0030 hours Mst. Mehnaz came and awoke her with the information that a person having white colour clothes and black Chaddar is present in the courtyard of the house. She made hue and cry on which the said unknown person escaped, however, from the residential room two boxes were missing. Later on, brother of the complainant and other people of the village during the course of search found the said two boxes in the fields of Kanda in damaged condition, from which one 14" colour T.V. Sony made, tape-recorder Sony made, 7 Tolas of golden ornaments an unstitched cloth, one purse containing cash amount of Rs,3,000 official documents, photo album were missing/stolen. According to the complainant he started search of the accused but he found no clue of them, hence he charged unknown accused for commission of the offence in his report.

3. During the course of investigation the statement of one Shehzad Khan was recorded who disclosed that after the incident Mehranullah accused had brought a television and a tape- recorder for keeping them in his house but he refused. The statement of taxi driver was also recorded as he had brought three accused in his taxi to the village on the night of occurrence. The present accused (Abdul Bari) was arrested in the case on 25-10-2001, who recorded his confessional statement on 2-11-2001 and on his pointation certain female clothes and some documents were recovered. He in his confessional statement named Mehnaz, an occupant of the house of the complainant, as their accomplice. After completion of investigation Abdul Bari (appellant) along with co-accused Mehranullah and Iqbal were produced before the trial Court to face trial in the case. Challan under section 512, Cr.P.C. Was however, submitted against the lady accused Mehnaz due to her abscondence.

4. After conclusion of the trial, the learned trial Magistrate acquitted the co-accused of the appellant from the charges whereas awarded conviction and sentence to him as detailed in the first paragraph of this judgment.

5. I have heard the learned counsel for the parties and also perused the record of the case.

6. In this case the complainant is Ajmal Khan, who being an Army Personnel was away from home when the occurrence took place in between the night of 9 and 10 of October, 2001. He was informed about the incident on the following day. He came to the village after about 4/5 days of the occurrence but did not report the matter to the police promptly and it was after about 12/13 days of the occurrence when he recorded his report to the police still without naming anyone. Such a delay in reporting the matter is thus, very material in the facts and circumstances of this case.

7. The accused/appellant has been found guilty of the charge on account of his confessional statement and recovery of some stolen property on his pointation.

8. The accused/appellant was arrested in the case on 25-10-2001 and was produced before the Magistrate for confessional statement on 2-11-2001 i,e, after 7/8 days of police custody. Such a long custody by itself points out to using third degree method by the police, making the voluntary nature of the confession as highly doubtful but I would not go deep into that aspect of the case because the very confession has been recorded by the Magistrate on oath and needless to say, that the dictum laid down by the superior Courts in such-like cases is that confession if is recorded on oath becomes illegal and could not be accepted.

9. So far as the recovery of some stolen articles on the pointation of the accused/appellant is concerned, it may be mentioned that the same is also not free from doubt for the reasons that the alleged recovery only pertains to petty items of the stolen property such as female clothes and some documents, which too have allegedly been shown to be recovered from a jungle on 30-10- 2001 after about 5 days of the arrest of the accused/appellant in the case. Moreover, the said clothes were neither exhibited at the trial nor any details thereof i,e, colour/print etc. Have been mentioned in the recovery memo. Neither Shahzad Khan who named co-accused Mehranullah nor the taxi driver who disclosed that he had brought three accused in the night to the village of the complainant was produced at the trial. In these circumstances, when the other co-accused of the appellant has already been acquitted of the charge, the appellant can also not be reasonably connected with the commission of the offence only on the basis of his confessional statement and pointation memo. Which pieces of evidence, as discussed above, are not admissible under the law.

10. For the aforesaid reasons, I am of the view that the prosecution E has miserably failed to bring home the charge against the accused/appellant beyond any shadow of reasonable doubt and the accused appellant thus, deserves acquittal from the charge while extending him the benefit of doubt.

11. Accordingly, this appeal is accepted, the impugned judgment of the learned trial Magistrate and the sentences awarded to the appellant are hereby set aside and he is acquitted of the charge. He