MUHAMMAD KAMIL Versus MUHAMMAD ZAHIR AND 2 OTHERS
AJMAL MIAN, J .‑‑This appeal is directed against the judgment, dated 28‑12‑1985 passed by the learned A.C.M. XV (South) Karachi, in Case No. 567 of 1984, arising out of a private complaint filed by the appellant under sections 457, 379 and 448, P.P.C. on 22‑4‑1984, in respect of the alleged incident which had taken place between 7‑00 p.m. of 5th April, 1984, and the morning of 6th April, 1984.
2. The brief facts leading to the filing of the above appeal are that the appellant filed F.I.R. (Crime No. 78 of 1984) at 3‑30 p.m. on 6‑4‑1984 with the Mithadar Police Station, alleging therein, that he closed his shop at 7‑00 p.m. on 5‑4‑1984 and went to his house and that some one during the night broke open the lock of his shop and also broke his Almirah and threw away the things in front of the shop without any notice and information. It was also alleged that the owner of the shop has thrown away the stock worth Rs.6,000 and Tape Recorder and stock of customers, whose name was Zaheer and his father's name was Nazeer. It was also alleged that he had purchased the shop from Zaheer for Rs.10,000 in 1977 and was running the business in the shop since last 8 years. He named Nasir, Shaft, Diamon and Karam Ali etc. as the witnesses. It appears that the police after investigation filed the above complaint. After that the appellant filed aforesaid private complaint on 16‑5‑1984 under sections 457, 448 and Article 14 of the Enforcement of Hudood Ordinance. In this complaint he added the name of Mohammad Jawed son of Mohammad Zaheer as co‑accused, though his name was not mentioned in the F. I. R. After that the appellant purported to file an additional complaint before the learned A.C.M. on 19‑5‑1984 adding two more names as co‑accused, namely Munir and Akram. However, it appears that no action was taken upon the alleged additional complaint as no witness was examined by the appellant in support of the above complaint. Respondents Nos. 1 and 2 were charged on 16‑9‑1984. The charge reads as follows:‑---
CHARGE WITH ONE HEAD.
Under section 242 of the Code of Criminal Procedure.
Charge of the case of:‑---
Mohammad Kamil versus (1) Mohammad Zahir son of Mohammad Nazir, (2) Mohammad Javed son of Mohammad Zahir, Name and office of Magistrate (Umar Khan) A.C.M. XVI (S) by charge you (name of accused persons) (1) Mohammad Zahir son of Nazir, (2) Mohammad Javed son of Mohammad Zahir.
That you, on or about the 5th day of 1984 at night in between 5th April, 1984 after 19‑00 hours upto 6th April, 1984, in furtherance of common intention committed theft of stock of more than Rs. valued 60,000 from the shop of complainant Mohammad Kamil situated at Plot No. OT/2/135 Kazi Bazar Karachi by breaking lock and also criminal trespassed and thereby committed an offence punishable under section 457/ 379/448 Pakistan Penal Code and within section 14/DAP(EOH) Ordinance.
And I hereby direct that you be tried by the said Court for me on the said charge.
Dated 16‑9‑1984 (Sd.)
Magistrate 1st Class, A.C.M. XVI (S) Karachi.
3. In support of the complaint the appellant examined himself as P.W.1, P.W.2 Mohammad Baig, Pesh Imam, P.W.3, Mustafa, P.W.4 Nasir Khan, P.W.5 Abdul Shakoor, P.W. 6 Haji Aziz Koya, a Councillor. The Court examined two witnesses as court‑witnesses, namely C.W. 1 Faiz Mohammad, Assistant Sub‑Inspector, Excise and Taxation Department and C.W. 2 Yousuf Rehman, P.S.I. attached to the Court of XVI A.C.M. South.
Respondents 1 and 2 made their statements under section 342, Cr.P.C. and also filed written further statement denying the factum of the commission of the offence. They also examined D.W.1 Abdul Hameed, Inspector of the Evacuee Trust Property Board in order to prove that respondent No. 1 was the tenant of the shop in dispute after the death of his father'. Learned A . C . M . after hearing the parties and after discussing the evidence and after highlighting the material contradictions passed the above acquittal judgment, under appeal. The appellant has, therefore, filed the present appeal.
4. In support of the above appeal Mr. A.Q. Halepota, learned counsel for the appellant, has candidly submitted that the appellant has been able to prove the charge under section 442, P.P.C. which is punishable under section 448, P.P.C. for one year's R.I. or fine or both but was not been able to bring any evidence to prove the other charges.
In furtherance of his above submission, he has referred to the statement of above witnesses examined by the appellant and has emphasised that particularly the testimony of P . W . 2 Mohammad Baig, Pesh Imam, who was present at the time of 'Quran Khawani' when the above shop was opened by the appellant 7 ‑ 8 years back and the statement of Haji Aziz Koya, Councillor of the locality, should not have been discarded by the learned trial Magistrate. He has further submitted that the evidence of Assistant Sub‑Inspector, Excise and Taxation also corroborates the statement of the above witnesses in addition to the testimony of the appellant. It will suffice to observe that in the F . I . R . neither the name of P . W . Mohammad Baig nor of P.W. Haji Abdul Aziz Koya was mentioned. The F.I.R. was lodged after the delay of more than 8 or 10 hours in which names of different witnesses were mentioned except of one Nasir Khan. Nasir Khan's statement also does not inspire any confidence, as in his statement he himself stated that he had not attended his shop for 10‑12 days as his father had expired on 5‑4‑1984 and that he did not see the appellant and the respondents 1 and 2 in the shop. The testimony of P.W. 2 Mohammad Baig also does not inspire any confidence as he purported to state as to how may persons were sitting on the chair and how many were sitting on the 'Dari' etc.; whereas P.W.5 Abdul Shakoor admitted in his cross‑examinations that he was engaged to the sister of the appellant. C.W.1 Faiz Mohammad, Assistant Sub -Inspector Excise and Taxation has admitted that there was overwriting in the relevant record in relation to the tenancy in question and that the name of the appellant in the record of the Excise and Taxation Department was mutated on 23‑2‑1984. It is not understandable if in fact that appellant had purchased the shop from respondent No.1, 7‑8 years earlier why this mutation was made in 1984. Furthermore, admittedly the shop belonged to the Evacuee Trust Board. The appellant did not approach the Evacuee Trust Board for getting the receipt changed in his name or to pay the rent. The evidence of D.W.1 Abdul Hameed, Inspector Evacuee Trust Property Board negates the appellant's case.
5. Another important fact which is to be mentioned is that in the private complaint it has not been stated by the appellant that he had purchased the shop in dispute from respondent No.1 several years ago, nor this was stated by him in his examination‑in‑chief but in the cross‑examination he came out with the above averment. The' appellant had not produced any evidence to prove that he has purchased the shop from respondent No. 1. After the appellant admitted the factum that the shop in dispute belonged to respondent No. 1 and that he had purchased that same from him, the burden was on him to discharge. On the contrary respondent No. 1 has produced the above witness Abdul Hameed to show his title.
6. In any case, the learned trial Court could, on the basis of the material on record acquitted the respondents 1 and 2. This Court in an acquittal appeal, cannot interfere with the above acquittal judgment unless it finds that the finding is such which is perverse or cannot be justified on the basis of the record. We have already pointed out hereinabove some of the glaring facts which adversely affect the appellant's case and cast serious doubt as to the credibility of the appellant's version.
7. We find no merits in this appeal and, therefore, it is dismissed.
These are the reasons in persuance of a short order of even date.
S.A./M‑311/K Appeal dismissed.