P (PLP)

R. K. M. SAKER, J‑ C.‑This is a revision petition by the two convict‑petitioners namely, Pathan and Abdul Ghani against their conviction by the Extra Assistant Commissioner and Magistrate, 1st Class, Sibi Shahrigh under section 380/457 Pakistan Penal Code which on appeal in the Sessions Court was upheld. I have heard learned counsel for the convict‑petitioners as well as the Public Prosecutor for the Crown and I have also perused the records of the case. The facts of this case as alleged by the prosecution are that certain property belonging to one Kishan Gir in Sibi was stolen on the night of 4/5th April 1948 and a report was accordingly lodged in the police on April 5th 1948. As a result of investigation, the police ultimately challaned the two convict petitioners along with others. Subsequently, as a result of the information given by the convict‑petitioners themselves, some of this property was recovered at their instance from various places, including the house of Abdul Ghani, petitioner and that of Pathan's brother. It ,is first necessary for me therefore to examine most carefully the circumstances under which this property was recovered and the places from which it was recovered. With the exception of evidence regarding the two gold rings, which were subsequently melted down, the stolen property was recovered on information given by the convict‑petitioners. In the first place, therefore, I propose to deal with the case of the convict‑petitioner Pathan. The prosecution evidence against him is to the effect that P. W. 2 gave information that Pathan had indicated where the two trunks could be recovered. They had apparently been buried behind the Railway Offices at Sibi, secondly P. W. 3 states that one Fateh Muhammad informed the police that Pathan had sold two gold rings to him. P. W. 4 gives evidence that Pathan did in fact sell the rings, while P. W. 5 states that at the instance of Pathan and Ghani two bundles of articles were recovered out of a rubbish heap near the M. E. S. Office Finally, Sultan (P. W. 12), who is the brother of Path an, gave information that his brother had placed certain articles in his house in his absence. These were also recovered. It is a generally accepted principle of law that when an accused person points out the place in which the stolen property is hidden, this act would not give rise to any presumption under section 114 (a) of the Evidence Act nor would it justify his convic tion for the offence of receiving stolen property still less of the offence of theft or dacoity. In order to convict in such circum stances, it is clearly necessary that there should be other corrobora tive evidence as to the guilt of the accused either as the receiver of the stolen property or, if such evidence is forthcoming, of the fact that he was the actual thief. In the case before me the two convict‑petitioners have been convicted jointly under section 386/ 457 Pakistan Penal Code. On examination` of the evidence and record I feel there are many serious discrepancies in the case against Pathan. Learned counsel for the petitioners has rightly pointed out that certain portions of evidence recorded in the trial Court are inadmissible. Ire has drawn my attention to certain portions of the evidence given by P.‑Ws. 3, 5 and

13. These witnesses have given evidence regarding certain alleged 'statements made by the convict-petitioners to the police. By virtue of section 162 Criminal Procedure Code. It is clear to me that certain portions of their evidence which I record below, must be held inadmissible:--‑‑ P. W. 3.‑-" Sub‑Inspector Sahib ke daryafat par Fateh Muhammad Sarraf ne batlaya keh Pathan mulzim ne us ke pas do addad Angushtari tilai firokht ki hain, jin ko pighla kar (dalli) banai gar hai". P: W. 5.‑" Sub‑Inspector Police Thana Saddar ne mujhe Thana Saddar me talab kiya. Us waqat Thana me Musammi Ghani wa Pathan mulziman maujuda Adalat wahan maujud the. Ghani Pathan mulziman ne meri maujudgi men kaha chalo ham mal masruqa jahan dabaya hua hai uski nishandehi karaenge". P. W. 13.

Mujhe Police ne bulaya. Jab. main Police ke pas pauncha to us waqt Pathan mulzim wahan maujud tha. Daryaft par Pathan mulzim ne batlaya keh us ne bashamuliyat 3/4 kasan sirqa kiya hfai. Saman baramad karne ke liye Police ko sath mauqa par le ja raha hun". Jab mere rubru Police ne use se daryaft kiya to Ghani mulzim ne bhi batlaya keh is muqaddama‑i‑mal jo mere hissa men aya hai woh main ne chhupa rakha hai uski nishandehi karta hun". It has been frequently held that a statement by an accused person relating to the discovery of hidden property can only be used in evidence for that purpose ; since any statement made, which might indicate Why the person making the statement hid the property. or the circumstances under which he might have become the possessor of that property, cannot be used against him. It will be observed from the statements of the witnesses recorded that the convict‑petitioners not only indicated where the property could be found but also stated that either this was their share of the stolen property or indicated the circumstances under which they themselves hid the property. This part of the evidence cannot therefore be used against them and it gill also be necessary for me to take into consideration, since the learned Magistrate recorded this evidence, whether his mind was biased against them. If it is apparent to me that, with the exception of actual recovery, there is no other evidence either direct or circumstantial, which will link the convict petitioners, with the crime committed, however, great the suspicion against them maybe their conviction is bad in law. Learned counsel for the convict‑petitioners has also argued that the recovery of property from a public place or a place accessible to the public is of doubtful evidentiary value to the prosecution. It has been held that it would be unsafe to rely solely on the evidence of the person pointing out the, place where property is hidden, if the place so pointed out is either in the possession of other persons or is accessible to the public ; as it might be reasonable to infer that the articles had been put there by somebody else and that the accused might merely have knowledge of the place where the property was, put. On the other hand, where an accused person has buried an incriminating article, in such a place that no member of the public could ordinarily be expected to find it the accused should be deemed to be in possession of the article. But the mere fact that the accused person gives information of a place where an incriminating article is found does not necessarily show that he put the articles there himself and would be insufficient to support a conviction. However, in a case where an accused person produces stolen property from his house there would be a presumption that he is either the thief or the receiver of the stolen property knowing it to be stolen. In so far as the case against Pathan is concerned, it follows therefore that the information he gave which led to recovery of certain items of the alleged stolen property would only convince me that he had' knowledge of where these articles were buried. It would, however, be quite improper to raise a presumption that he himself was either the thief or the receiver of that stolen property. It would be improper to make use of the presumption permitted under section 114 Illustration " A " of the Evidence Act that Pathan himself was the thief in the absence of other evidence corroborating his statement to the police. I have carefully perused the records and I can find no corrobora tive evidence which will support the prosecution case. The state ment of Pathan's brother (Sultan) that certain property was recovered from his (the brother's) house must, I consider be viewed with the gravest possible suspicion. His evidence merely shows that in his absence his brother placed the alleged stolen property in his house. This is, in my opinion, entirely negative evidence ; if he were not present he could hardly be expected to give reliable evidence that his own brother placed the property there. Similarly it can certainly not be assumed that since this particular (stolen) property was recovered from the house of the convict‑petitioners' brother that property in question was in the actual possession of Pathan. If, therefore, it, was not in his possession but was recovered from the house of his brother ; the essential ingredient of the offence of being in possession of stolen property is absent and a conviction, in so far as this stolen property is concerned, cannot stand. On careful study of the record there appears to have been some considerable confusion in regard to recovery of stolen property from the house of Pathan though the learned Sessions judge makes m3ntion of the evidence of P. W. 6 that property as listed in Exhibit P: M. was recovered from his house. It transpires however that actually the house of Pathan's brother (Sultan) was searched and the articles entered in Exhibit P. M: ware recovered. It follows, there fore, that there is a considerable element of doubt as to the actual possession of the stolen property by Pathan when it is now clear that no property was recovered from his house. The stolen property was either recovered from places pointed out by him, which were in the possession of nobody, or from the house of his brother Sultan. For the reasons I have already given, it would, I consider, be extremely unsafe to convict him in regard to the recovery of property from places accessible to the public, while equally I am most suspicious of the evidence of his brother since there is no corroborative evidence whatsoever to convince me that the alleged stolen property recovered from the house of Sultan had been placed there by Pathan himself. It would appear far more likely that Sultan while attempting to implicate his brother Pathan was the possessor of stolen property, though since he is not before me as a petitioner I do not propose to pursue this possibility further. I now come to the question of the alleged stolen rings. These rings are not exhibits before this or any Court since the only evidence regarding them is the alleged sale by the convict‑petitioner Pathan and subsequent melting down. This clearly is no evidence whatsoever against‑Pathan since it was physically impossible for the original possessor to identify the rings which they alleged had been stolen. To sum up therefore the cage for the prosecution in so far as Pathan is concerned rests on his statement to the police indicating places where the alleged stolen property could be found and also his assistance in recovering it. In this respect I am very strongly of opinion that a grave element of doubt must arise as to whether or not Pathan could be considered to be the possessor of this stolen property. Even if I were to hold that he was the possessor, the case against him goes no further than to raise the presumption permitted under section 114 Illustration " A " of the Evidence Act ; and since there is no further corroborative evidence neither as to possession nor as to his complicity in the theft which took place, a conviction under section 380 read with section 457 Pakistan Penal Code would be wholly improper. I therefore have no alternative but to accept this revision petition and set aside the conviction passed against him. I ' accordingly direct that he shall be set at liberty forthwith. I now come to the case of the convict‑petitioner Abdul Ghani. Once again it was on the statement of Abdul Ghani to the Police that the various items of the alleged stolen property were recovered since, he again pointed out where they could be found. The arguments adduced by me in regard to the case against Pathan apply with equal force in the case of Abdul Ghani though it is nece9sary for me to see whether or not any of the stolen property was recovered from his house. In taking into consideration the recovery from the house of Abdul Ghani of certain alleged stolen property, if I were satisfied that these were in fact the articles stolen, the presumption against him would be far greater than it is against Pathan. I observe that the method of identification of the articles so stolen which was carried out in Court; was done in a most perfunctory manner. P. W. I Kishan Gir and his wife (P. W. 11) the persons from whom the property is alleged to have been stolen merely gave in their evidence a' vague indication that all the property in Court was property stolen from their house. I also observe that the actual property recovered from the house of Abdul. Ghani was mainly property which may be described as common and not particularly easy to identify, Various items of clothing and other household goods were recovered, but it would be very difficult, in my opinion; to accept with certainty the evidence that these were the actual articles originally belonging to Kishan Gir. There is a grave element of doubt about the identifica tion of the actual goods recovered from the house of Abdul Ghani. Even assuming, for the sake of argument, that I consider these goods to be part of the property stolen, this would merely raise a presumption of guilt against him. His statement in Court in this respect must be examined I observe that when asked about recovery from his house he admits this fact though he does not admit that the goods were stolen property and as such he did not think fit to give any explanation as to possession. The alleged stolen property found in the house was of a very common nature end of little value. It also consisted of items which are in common use. For the reasons stated in the case of Pathan, I feel the general evidence against Abdul Ghani is extremely weak and that it would be improper to convict him for an offence falling under sections 380/457 of Pakistan Penal Code. I am even further doubtful as to whether or not he is guilty under section 411, Pakis tan Penal Code and since this element of doubt exists in my mind, it would not be proper for me to alter the conviction already passed to a conviction under this section. In reviewing the case as a. whole, I must also take notice of certain remarks made by the Magistrate in his judgment when he convicted the convict‑petitioners. The Magistrate, I observe, has made various presumptions as to their guilt for instance the translation of his judgment in one place states that " the evidence before me raises a strong presumption of guilt against the accused Pathan and Abdul Ghani ". He further states, there is no doubt no direct evidence to show that these two accused had actually been seen committing the offence of house‑breaking and theft ", and finally according to prosecution evidence on record a charge should have been framed against them under sections 411 and 414, Pakistan Penal Code and the Court was satisfied that they were the persons who broke into the house of the complainant and stole the property in question, i.e:, they are the real thieves." The Magistrate then goes on to say that for this reason charges, were framed under the more severe sections. It appears perfectly clear to me that the Magistrate, in convicting them under these two sections, has made certain very dangerous presumptions which are not permissible in accordance with the facts of the case and are equally presumptions which cannot even be permitted under the; provisions of section 114 Illustration " A " of the Evidence Act inasmuch as the greater portion of the so‑called stolen property was recovered from places not in possession of either of the convict. petitioners. Since, in revision proceedings, the entire case is before me, both as to the facts and law, it is my duty, in exercising my powers in revision proceedings to ensure that miscarriage of justice does not occur. Normally, this Court would not interfere in a case of concurrent findings of fact, but this particular case clearly contains so many doubtful features that to the ends of justice it would, in my opinion, be entirely wrong to permit of the sentence passed against these two convict‑petitioners to stand since there is more than an ordinary element of doubt about the case. Though I would be reluctant to take an opposite view of facts from that taken by the two lower Courts, I cannot ignore the obvious duties of a revisional Court in protecting persons appearing before Criminal. Courts from the possibility of a wrong conviction. In all circumstances, since I. feel there is insufficient proof against either of the convict‑petitioners, the order convicting them must be set aside. I direct that both Abdul Ghani and Pathan shall be acquitted and that they shall be set at liberty forthwith. Announced. A. H. Petition accepted.