ABDUL WAHAB vs THE STATE

Learned Additional Sessions Judge, Karachi South (Court NO. IX) by judgment dated 6-1-2000 convicted the appellant for an offence punishable under section 412, P.P.C. And sentenced him to rigorous imprisonment for five years and fine of Rs.15,000 or in default in payment of fine to suffer simple imprisonment for two months. The appellant has impugned his conviction and sentence by way of this appeal.

2. The case proceeded on the basis of FI.R. In Crime No.20 of 1999 of Police Station Nabi Bux registered on 4-3-1999 at 21-30 hours in which Aftab Ahmed Khan is the complainant. It is stated in this F.I.R. That the appellant Abdul Wahab, was arrested for an offence under section 13-D, Arms Ordinance under F. I. R. No.19 of 1999 of the same police station and a car Bearing No./ABJ 120 Suzuki Khyber Grey Colour Engine No.137933, Chassis No.450211 was secured from his possession and he disclosed during interrogation that he had snatched the car about 9/10 days back on point of weapon at Tariq Road.

3. Since the F. I. R. In Case No.19 of 1999 (not of this case) has been placed on record it would be convenient to lay down the facts stated therein That F.I.R. Has been lodged by Inspector Khalid Mehmood, S.H.O. Police Station Nabi Bux on 4-3-1999 at 20-45 hours disclosing therein that he was busy in snap checking when he noticed Car No. ABA 628 Suzuki and signalled the driver to stop who tried to speed away but he was followed and stopped. The appellant who was driving the car was asked to produce the documents of the vehicle but he failed to furnish such. On his personal search a .30 bore pistol and 5 cartridges and cash Rs.2,000 were secured from his possession. It was also noticed that number plate on front was ABJ 120 and on back side, ABA 628. After preparing the seizure memo the appellant was taken to police station where the F.I.R. Was lodged.

4. The investigation was entrusted to A.S.-I. Aftab Ahmed who came to know that F.I.R. Was registered at Bahadurabad Police Station relating to snatching of car. The appellant and the vehicle were lastly handed over to Bahadurabad Police.

5. At the trial the appellant was charged with an offence punishable under section 412, P.P.C. To which he pleaded not guilty and claimed trial.

6. The prosecution in order to prove the charge examined three witnesses namely P.W.1 A.S.-I.

Muhammad Farid, one of the Mushirs of recovery; P.W.2 S.-I. Muhammad Aftab, the Investigating Officer; and P.W.3 Muhammad Khalid Mehmood, the then S.H.O. Nabi Bux Police Station who effected the recovery. The relevant documents were produced by the witnesses. The statement of appellant was recorded under section 342. Cr.P.C. Wherein his case was of bare denial. After hearing arguments the learned trial Court convicted the appellant as stated above.

7. Learned counsel for appellant assailed the finding of conviction mainly on three grounds: (i) that the charge under section 412, P:P.C. Could not be sustained as the essential ingredients of the aforesaid offence are totally lacking in the instant case; (ii) that there was absolutely no evidence on record to establish beyond doubt that the property was snatched/stolen or retained by the appellant after the commission of offence of dacoity/robbery in respect of this vehicle or that there was proof to show that the vehicle belonged to a particular person; and (iii) that the vehicle was never produced in the trial Court: Mr. Mehmood A. Qureshi, learned counsel for appellant, in support of his contentions, relied on the authorities reported as Budho v. State (1973 PCr.LJ 395), Khairuddin v. State (1974 PCr.LJ 219), Muhammad Asghar v. State (1999 PCr.LJ 1575) and Muhammad Shafi v.

The State (1993 PCr.LJ 142).

8. Mr. Muhammad Ismail Memon learned Assistant Advocate-General submitted that the basic evidence required to prove the fact that the property was stolen is practically not forthcoming and the property was also not produced at the trial and in view of the law laid down in the aforesaid cases, he would not support the finding of conviction.

9. I have perused the evidence on record and gone through the case-law cited by the learned counsel. It appears that the learned trial Court while framing the points for determination has erred in combining the two essential points, in Point No.1 alone. The fact of recovery of the vehicle should have been considered for determination under a distinct point. Then, the fact that it was stolen property and was dishonestly received/retained by the appellant knowing or having reason to believe that possession thereof was transferred by the commission of dacoity was to be considered under I a separate point. As for the second portion of section 412, P.P.C. It could be considered, if the fact so warranted, as an alternative point. This would facilitate the trial Court in dilating upon each essential ingredient of 'the offence under section 412, P.P.C. In the light of evidence required for establishing each point and rendering a finding thereon. However, it is significant to mention that an irregularity arising in consequence of an error in formulating points for determination shall not by itself vitiate the trial if all the ingredients of the offence are otherwise thoroughly taken into account and evidence discussed and appraised considering different aspects.

10. Incidentally, in this case, the evidence on record had confined to the point of recovery of vehicle from the appellant; As already mentioned, learned counsel for appellant while commenting upon the genuineness of the recovery argued that the prerequisite that the vehicle was dishonestly received and retained as stolen property and the appellant knew or had reason to believe that the possession thereof had been transferred by commission of dacoity is absolutely lacking. In such a case, I agree with the learned counsel that the prosecution was preliminarily bound to furnish positive evidence to show that the property was stolen or that its possession was transferred by commission of dacoity etc. The F.I.R. In the instant case indicates that the appellant had disclosed that he had snatched the car at Tariq Road. Initially, the F.I.R. Of that case was to be proved in accordance with rule of evidence and then evidence was to be led to show that as a result of dacoity the car was snatched from a particular person or that in any manner it was stolen property. Evidence on the point is wholly lacking. The version of accused before police was not enough in this behalf. The appellant has denied all the allegations. The Investigating Officer Aftab Ahmed has stated that he had contacted Bahadurabad Police Station on telephone and the car was handed over to Bahadurabad Police alongwith the accused. No such entry was produced at the trial to substantiate the above fact. In this regard the authority cited by the learned counsel for appellant Muhammad Shafi v. The State (1993 P.Cr.LJ 142) supports his contention that basically the prosecution failed to adduce direct evidence to prove the fact that the car was stolen or snatched.

11. Secondly, it was contended that the car was never produced at the trial. The evidence of Muhammad Aftab is to the effect that vehicle was taken by Bahadurabad Police Station and then he was not aware where the vehicle was. The defence has thus challenged the existence of the vehicle and it was an obligation cast on the prosecution to meet this challenge but no efforts were made to produce the property or justify its non-production. All the witnesses, who were examined in the Court were never shown the Vehicle as case property as such nothing could come on record to establish that the case property was at any time produced at the trial. The learned counsel for appellant, therefore, was justified in relying on the principles laid down in Budho v. The State (1973 PCr.LJ 395), Khairuddin and 2 others v. The State (1974 PCr.LJ 219) and Muhammad Asghar v. The State (1999 PCr.LJ 1575) that when the case property or the property in crime is not produced at the trial the benefitof doubt shall go to the accused.

12. As discussed above no legal evidence was placed on record at the trial to establish that offence of car-snatching in respect of this vehicle had taken place; and further the property was never produced in the trial Court, therefore, benefit arising out of these material deficiencies shall go to the accused.

13. For the foregoing reasons it is concluded that this is a case where the appellant deserves benefit of doubt. Consequently, the appeal is allowed and the conviction and sentence are set aside.