ANWARULHAQ HASHMI vs SHABBIR HUSSAIN and 5 others
This matter concerns two petitions for leave to appeal filed by the complainant against a judgment of the Federal Shariat Court, which had acquitted two respondents of charges under Section 411, Pakistan Penal Code 1860, and ordered the return of recovered currency notes to them. The trial court had initially convicted the respondents under Section 411, Pakistan Penal Code 1860, but the Federal Shariat Court reversed this, finding that the prosecution failed to establish that the recovered currency notes were the proceeds of the alleged dacoity, as the notes lacked specific identifying marks or links to the complainant's property. The petitioner argued that the respondents' claim of ownership, raised only during their statements under Section 342, Code of Criminal Procedure 1898, should have been rejected. The Supreme Court held that the petitioner failed to challenge the Federal Shariat Court's finding that the prosecution evidence was insufficient to connect the recovered currency to the crime. Consequently, the Court affirmed that, absent proof of the stolen nature of the currency, the respondents were entitled to the return of the items recovered from their possession. Leave to appeal was refused.
- Does the failure of an accused to claim ownership of recovered items during cross-examination of prosecution witnesses preclude them from claiming ownership in a statement under Section 342, Code of Criminal Procedure 1898?
- Is the recovery of currency notes sufficient to establish an offence under Section 411, Pakistan Penal Code 1860, if the notes lack specific identifying marks linking them to the complainant?
- Are respondents entitled to the return of recovered currency notes upon acquittal if the prosecution fails to prove the notes are the proceeds of the alleged crime?
- Section 20, Offences against Property (Enforcement of Hudood) Ordinance 1979
- Section 392, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 411, Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
- Section 395, Pakistan Penal Code 1860
- Section 412, Pakistan Penal Code 1860
- Section 17, Offences against Property (Enforcement of Hudood) Ordinance 1979
- Section 342, Code of Criminal Procedure 1898
ORDER
1. ' KHALIL-UR-REHMAN KHAN, J.---This order will dispose of two petitions (Criminal Petition No,40(S) of 1998 and Criminal Petition No, 41(S) of 1998) as both arise out of one and the same judgment dated 15-9-1998 of the Federal Shariat Court.
2. ' Shabbir Hussain, respondent in Cr.P.L.A. No, 40(S) of 1998, and Shahzad, respondent No,1 in Cr.P.L.A.
3. No, 41(S) of 1998 were tried alongwith Akbar Ali, Mehmood Ahmed, Maqsood Ahmed and Azhar Mehmood alias Ali, respondents. Nos. 2 to 5 in Cr.P.L.A. No, 41(S) of 1998, by the learned Sessions Judge, Okara for offences under section 20 of the Offences against Property (Enforcement of Hudood) Ordinance, 1979 (Ordinance VI of 1979) read with section 392/34 and section 411, P.P.C.
4. Learned trial Court convicted and sentenced Abkar Ali, Mehmood Ahmed, Maqsood Ahmed and Azhar Mehmood alias Ali under section 20 of Ordinance VI of 1979 read with section 392/34, P.P.C.
5. And sentenced them to suffer eight years R.I. Each with a fine of Rs,20,000 each and in default to further undergo one year S.I. Each. Shabbir Hussain and Shahzad respondents were acquitted of the aforesaid offences. All the six accused were, however, convicted under section 411, P.P.C. And were sentenced to three years R.I. Each. The sentences in the case of four aforementioned accused were ordered to run concurrently. The respondents were also allowed benefit of section 382-B, Cr.P.C. All the accused were, however, acquitted of the charges under section 395/412, P.P.C. And section 17 of Ordinance VI of 1979.
6. All the six convicts challenged their respective conviction and sentences by filing appeals before the Federal Shariat Court. The appeal of Akbar Ali, Mahmood Ahmed, Maqsood Ahmed and Azhar Mahmood alias Ali was dismissed. The appeals of Shabbir Hussain (respondent No,1 in Cr.P. 40 (S) of 1998) and Shahzad (respondent No,1 in Cr.P. No,4 l(S) of 1998) were, however, accepted and they are acquitted of the charges under section 411, P.P.C. And the amount recovered from their possession was ordered to be returned to them. These two petitions for leave to appeal were then filed by the complainant assailing the judgment of acquittal and for enhancement of sentences of the respondents.
7. ' Learned counsel for the petitioner/complainant argued that during the trial no suggestion was given to any of the prosecution witnesses that the currency notes recovered at their pointation during investigation were their property and, in the circumstances, the claim made in the statement under section 342, Cr.P.C. That these notes were their property should not have been accepted. According to the learned counsel they waited to make this claim only after realizing that the prosecution has not been able to establish the recovered currency notes as the proceeds of the dacoity. Had these notes belonged to them they would have claimed the same from the very beginning of the trial by at least putting suggestion to the said effect to the recovery witnesses including the Investigating Officer.
8. ' There is no merit in the submission of the learned counsel for the petitioner. The very plea raised amounts to accepting the finding of the learned Federal Shariat Court that there is no evidence that the amount recovered was the same which had been forcibly snatched from the complainant party and that the only evidence against the respondents is recovery of currency notes but that too does not establish their connection with the commission of offence as the recovered currency notes were not having specific discriminating sign or any other reference to the currency notes foreibly snatched from the complainant. These findings have otherwise not been assailed before us and as such the same clinch the issue. These currency notes have been admittedly recovered from the possession of the respondents and as such they were rightly held entitled to receive the same after their acquittal. The acquittal of the respondents and the direction to return these currency notes to them is well founded and merits no interference. The petitions are found without merit. No other point was urged.
9. ' Leave to appeal is refused and both the petitions are dismissed.
10. Leave to .