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Petitioner: ABDUL KHALIQ VS Respondent: THE STATE
P L D 1960 (W
P L D 1960 (W. P.) Karachi 44
Before A. S. Faruqui, J
ABDUL KHALIQ and another‑Appellants
versus
THE STATE‑Respondent
Criminal Appeal No. 403 of 1958, decided on 7th July 1959.
Evidence‑Complainant suppressing fact tending to expose him to criminal prosecution‑No reason for completely discarding com plainant's evidence.
Muhammad Ismail for Appellants.
Muhammad Hayat Junejo for Respondent.
Date of hearing: 29th June 1959.
JUDGMENT
This is an appeal by the two appellants Abdul Khaliq and Abdul Ghani who have each been convicted by the Additional Sessions Judge, Karachi, for an offence under section 394, P. P. C. and sentenced to undergo rigorous imprisonment for a period of 5 years.
The prosecution story in this case was that the' complainant Zulfiqar Ali, who had a goldsmith's shop at Montgomery, came from there to Karachi with a sum of Rs. 50,000 with him. He arrived here on 24‑4‑57 by Tezgam, which reached the City Railway Station Karachi at about 12‑30 p.m. On coming out of the Railway Station, he met two persons, one of whom was the appellant Abdul Khaliq and the other was one Faiyaz, who is said to have absconded. Faiyaz was dressed as a Sub‑Inspector of Police and appellant Abdul Khaliq is also said to have been wearing a Khaki pent. Zulfiqar's version is that these two persons represented themselves as police officers, and having found out that he had brought such a large sum of money, told him that his: possession of such a large sum of money was suspicious. They took him to Kashmir Hotel, where the second appellant Abdul Ghani was already present in room No. 4 of the hotel and it is in that room that these four persons spent the rest of the day. Zulfiqar Ali says that they spent a.considerable time in taking down the numbers of the currency notes and having done so they put the money into a bag. In the evening at about 7‑30 p.m. 'the party came out of the hotel and Faiyaz and the complainant Zulfiqar got into one rickshaw and the two appellants followed them into another. Zulfiqar says that they took him from place to place and also made a show of approaching the police at the Saddar Police Station, where Zulfiqar was made to wait outside and Faiyaz went inside the Police Station and came back quickly. Zulfiqar says that ultimately by about 9 p.m. he was taken towards the Central Jail, but when the motorcycle rickshaws crossed the junction of the Country Club Road and the road going towards the Dalmia Cement Factory, he caught hold of the collar of the rickshaw driver and asked him as to where he was taking him. Thereupon, Faiyaz is said to have assaulted Zulfiqar in which act he was joined by the two appellants Abdul Ghani and Abdul Khaliq, and Faiyaz is said to have snatched the bag containing the money and all the three persons decamped. Zulfiqar began to shout and wail that he had been robbed of his fifty thousand rupees. At this point of time, attracted by the cries of the complainant, several persons arrived at the scene including Mukhtar Ahmed son of Abdul Hakim, Muhammad Niaz son of Muhammad Sheran and the police constable Mukhtar Hussain. A loaded truck also reached there and stopped at the scene of occurrence. Zulfiqar Ali told these persons what had happened and after some consultation they made their way to Kashmir Hotel to look for the culprits. The com plainant and the constable got into the same rickshaw which had brought Faiyaz and Zulfiqar and which was driven by the driver Jamroze. When they reached Kashmir Hotel it is said that one Gariwalla by the name Fazlur Rehman, who was outside the hotel, informed them that he had taken the suspected persons to Canton ment Railway Station from where he had just returned. The party then left for Cantonment Railway Station and the Gariwalla, Fazlur Rehman, also accompanied them. There they found these two appellants outside the Railway Station on the lawn near the Tram Lines. They were also joined there by another constable Piranditta, and they apprehended the two appellants. The appellant Abdul Ghani is said to have thrown away a bundle which was tied in a handkerchief. This was picked up and handed over to constable Mukhtar Ahmed. This bundle contained currency notes. The appellants were then brought to the New Town Police Station where the complainant Zulfiqar Ali lodged his F. 1. R. The A. S. 1. P. Musharafullah Khan seized the bundle which contained eleven thousand and nine hundred Pakistani rupees in currency notes of Rs. 100 each. He searched the appellants and from Abdul Ghani he seized a sum of Rs. 21.595 in Indian currency. The investigation was taken up by S.I. P. Sh. Abdul Rashid, who visited the scene of offence near Jail and recorded the statements of Jamroze Khan, rickshaw driver, Mukhtar Ahmed, Muhammad Niaz, constable Mukhtar Hussain, constable Piranditta, Fazlur Rahman Gariwalla and others. He then visited the Kashmir Hotel where he recorded the statement of one Sabir Ali who was a bearer in the hotel. The complainant had certain superficial injuries which he is said to have received in the scuffle with Faiyaz and the appellants, and he was sent for medical examination in which four abrasions were found on his person. The appellants denied the offence. They denied to have either met the complain ant or to have stayed at the Kashmir Hotel or to have taken the complainant towards the Jail or to have ;robbed him of any money. They admitted having been caught at the Cantonment Railway Station Abdul Ghani admitted the recovery of the Indian currency notes from his person and he also claimed the money in Pakistani currency. He denied to have thrown away the bundle as alleged. At the trial, the prosecution examined P. W. 1 Mukhtar Hussain Constable, P. Ws. 2 Mukhtar Ahmed, P. W. 3 Jamroze Khan the rickshaw driver, P. W. 4 Fazlur Rahman the victoria driver, and P. W. 6 Piranditta constable, the mashirs and the A. S. I. who had taken down the F. 1. R., Sabir Ali hotel bearer, Zulfiqar Ali the complainant, and the C. 1. D. Inspector Abdur Rashid who had investigated the case. The presence of complainant Zulfiqar with the two appellants in room No. 4 of Kashmir Hotel on the day of the incident was proved by the bearer Sabir Ali who also identified these two appellants in an identification parade held in the jail. The fact that Zulfiqar was found in the circumstances, namely that he had been robbed and was crying about his loss is deposed to by constable Mukhtar Hussain who is supported by Mukhtar Ahmed who is a mason and lives near the place of the incident. He says that he had seen the two motor rickshaws passing him as he was going to his house towards the Country Club Road. These rickshaws stopped at a distance of 60 yards ahead and he heard cries of a per son that he was being beaten. He ran up to the place and found the two appellants and one more person beating the complainant. He says that he also started shouting, whereupon `he appellants and the other man escaped. Mukhtar Husain supports this version. He also resides on the Country Club Road, and at the time of the incident was returning to his house after the day's work. The rickshaw driver Jamroze supports the version of the complainant that he and the person in police uniform namely Faiyaz and two others got out of Kashmir Hotel and started in two rickshaws, Faiyaz and the complainant sitting in his rickshaw and that they after a great deal of roaming about reached the Country Club Road where the complainant held him by his neck and told him to stop. Thereupon the other passenger in the rickshaw started beating the complainant in which he was joined by the other two men in the other rickshaw, and that at that point of time a truck came and the other persons including constable Mukhtar Hussain and Mukhtar Ahmed reached there and the three men snatched the bag from the hand of the complainant and ran away. The fact of the com plainant and the other members of the party going to Kashmir Hotel is proved by the complainant and the witnesses named above, froth where they went to the Cantonment Station on the information supplied by the victoria driver Fazlur Rahman who was also examined in the case. The fact that the two appellants were apprehended near the Cantonment Station is admitted by them. The witnesses named above have also stated about the throwing of the bundle of notes by Abdul Ghani. From there the appellants were taken to the New Town Police Station in which jurisdiction the place of incident viz., the Country Club Road at the point of its junction with the other roads situated.
Mr. Muhammad Ismail, the learned counsel for the appellants, has contended that the entire story is a fabrication. He has pointed out certain discrepancies in the evidence says that the police having found his clients in possession of Indian money has gone on and foisted upon them a completely false case of robbery. I pointed out to the learned counsel that it was hardly necessary for the police to set up a false case of robbery when they actually found these appellants in possession of a very large sum of Indian money and they might have remained content with prosecuting them for contravention of Foreign Exchange Regulation and the Sea Customs Act. Besides, as I have indicated above, the presence of the complainant and the two appellants in the Kashmir Hotel, at the Country Club Road and then at the Cantonment Railway Station is beyond doubt. The last fact is actually admitted by them, which in fact would have been impossible for them to deny. These two appellants belong to Lahore and they were obviously at the time when they were apprehended intending to take the night train back to Lahore, having succeeded in their design. The learned counsel then pointed out that the version of the complainant Zulfiqar Ali that he had come to Karachi for purchasing a truck was untrue. That is so. But the fact that the complainant has suppressed something which might have involved him in some offence does! not necessarily mean that the rest of his evidence must be completely discarded. A conviction could not have been based upon his evidence but there is such overwhelming corroboration in this case. It is quite plain to me that what really seems to have happened is that the complainant had come to Karachi for a deal in exchange of Pakistani currency with Indian currency. He seems to have fallen in the hands of the appellants and Faiyaz who laid the plan of robbing him of his money which they carried out in the manner stated above. The evidence of Muklitar Hussain and Mukhtar Ahmed is unimpeachable and is supported by the rickshaw driver Jamroze. There is no doubt that on the scene of occurrence at the Country Club Road, the
complainant was assaulted by the appellants and Faiyaz who decamped with his money.
The learned counsel has also vigorously attacked the evidence of the victoria driver Fazlur Rehman. The learned Additional Sessions Judge has also not placed reliance upon his testimony. But, even if the evidence of Fazlur Rehman was not believed there is still plenty of unassailable evidence which establishes that the complainant along with Mukhtar Ahmed, Mukhtar Hussain and Jamroze pursued the appellants and apprehended them at the Cantonment Railway Station. The appellants have denied everything except the fact that they were apprehended at the Cantonment Railway Station and that the money was seized from them. They have given no explanation as to how and under what circumstances they were carrying such a large sum of Indian and Pakistan money. There is no reason whatsoever not to accept the natural and straightforward evidence of constable Mukhtar Hussain, the mason Mukhtar Ahmed, the bearer Sabir Ali and which is supported by the evidence of Jamroze. I, therefore, hold that it is established beyond any reasonable doubt that the two appellants had assaulted the complainant and snatched away the money from him by force, and the appellants were therefore rightly convicted by the learned Additional Sessions Judge under section 394, P. P. C. 1, therefore, dismiss their appeal. The sentence of 5 years' R. I. having regard to the circumstances in which the offence was committed is by no means harsh. The appeal is therefore dismissed and the appellants will serve out the rest of their sentences.
K. B. A./A. H.
Appeal dismissed.