P L D 1961 (W (PLP)

(1) A contusion, 2 " x 1", transverse, over the back and lower‑third of left forearm, " above the left wrist‑joint. There was fracture of both the bones underneath. (2) A contusion, 1" x ", oblique over the dorsum of left hand, 1" above the left wrist‑joint. (3) A contusion, 9" x " over the outer aspect of left thigh, longitudinal. (4) A contusion, 4" x ", oblique, over middle outer part of left thigh. (5) A contusion, 5" x " oblique, across the back of chest. Injury No. 1 was grievous, whereas the rest of the injuries were simple. All the injuries were caused with a blunt weapon.

6. The same day he examined Shera P. W. and found a contusion, 3" x " on the front of left wrist‑joint. The injury was simple and was caused with a blunt weapon.

7. He examined Bahawala P. W. on the 16th of February 1960, at 10‑15 a. m., and found a swelling, 3" x 3 " over the dorsum of right hand. There was a fracture of fifth metacarpal bone near the metacorpo‑phalangeal joint. The injury was grievous and was caused with a blunt weapon.

8. At the trial 13 witnesses were examined in support of the prosecution case. The accused denied having attacked the deceased or the injured P. Ws. They suggested that the raob which had collected at the place of occurrence had caused injuries to the deceased and the injured P. Ws. when they had tried to rescue Shara and his five companions and to remove the timber forcibly.

9. The learned Additional Sessions Judge accepted the prosecution case as true and convicted and sentenced the accused as mentioned above.

10. Learned counsel for the appellants has urged that it is not established beyond doubt that the accused had attacked the deceased and the injured P. Ws. Except for the statements of the accused that in fact the mob which had collected at the spot had attacked the deceased and the injured P. Ws. there is nothing on the record in support of this suggestion, and, in the, circumstances of the case, I am not prepared to accept it.

11. The case for the prosecution rests on the evidence of Shera (P. V . 6), Sohnda (P. W. 7), Abdul (P. W. 8), Hayat (P. W. 9), Muhammad Khan (P. W. 10) and Bahawala (P. W. 11). They have stated that the four accused had attacked the deceased and Muhammad Khan, Bahawala and Shera P. Ws. Out of these witnesses. Sohnda (P. W. 7), Abdul (P. W. 8) and Muhammad Khan (P. W. 10) are completely independent and disinterested witnesses. In fact, Muhammad Khan P. W. is a near relation of the accused. There is nothing on the record to show that he bore any ill‑will against any of the accused. It is no doubt true that Sohnda P. W. has stated that Painda son of Ghulam Haidor was one of the assailants of Raja deceased. This of course is not consistent with the prosecution case, according to which Painda son of Shera had attacked him. But it may be that Sohnda P.W. was standing at some distance when the attack was going on and in the confusion of the moment he may not have noticed as to who out of the two Paindas had attacked Raja deceased. The evidence of the other eye‑witnesses is, however, unanimous that it was Khan and Painda son of Shera accused who had attacked Raja deceased. Similarly, they are unanimous that Ahmad Khan and Painda son of Ghulam Haider, had caused injuries to Muhammad Khan and Bahawala P. Ws. They are also unanimous that Painda son of Shera had given a dang blow to Shera P. W. Shera, Hayat and Bahawala P. Ws. are related to each other and there was some dispute between the parties more than fifteen years ago, but 1 do not think that these P. Ws. could have falsely implicated the four accused on that account. I have already pointed out that the camelmen, and Muhammad Khan P. W. have also supported the prosecution case. I am, therefore, satisfied that the four accused had attacked Raja deceased and Muhammad Khan, Shera, and Bahawala P. Ws. in the manner as is alleged by Shera, Abdul, Hayat, Muhammad Khan and Bahawala P. Ws.

12. Learned counsel for the appellants has next contended that Shera P. W. and his companions had committed an offence under section 411, P. P. C. in the view of the accused, and conse quently having regard to the provisions of section 59 of the Code of Criminal Procedure they were within their rights to arrest Shera P. W. and his companions and to seize the timber. Section 59 of the Code of Criminal Procedure provides that "any private person may arrest any person who in his view commits a non‑bailable and cognizable offence, or any proclaimed offender, and without, unnecessary delay, shall make over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police, station". The question arises whether in the circumstances of the present case Shera P.W. and his companions had committed any non‑bailable and cognizable offence within the view of the accused. Learned counsel for the appellants has argued that there' was no marking on the timber and there is no reliable evidence on the record to show that Shera P. W. had in fact purchased the timber from Mahbub Elahi off' Bhera. Therefore, he maintains that the timber which Shera P. W. and his companions were taking was stolen property. He has placed on this record a copy of the judgment whereby Shera and his companions were convicted by Sh. Abdur Rahman, Magistrate 2nd Class, Pind Dadan Khan, under section 411, P. P. C. and sentenced to two months' rigorous imprisonment each. After the arguments had been concluded in this appeal, the learned counsel for the appellants, however informed me that on appeal Shera and his companions have been acquitted. In my opinion, the conviction of Shera P. W and his companions under section 411, P. P. C., has no bearing on the decision of this case. Assuming for the sake of argument) that Shera P. W. had not purchased the timber from Mahbub Elahi of Bhera, and could not satisfy the accused that he had[ acquired possession of it in a bona fide manner, the question which requires consideration is whether Shera P. W. and his companions had committed any offence under section 411, P. P. C. in the view of the accused. Section 411, P. P. C. provides that "whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which IA may extend to three years, or with fine, or with both". Surely' Shera P. W. and his companions had not received the timber in the presence of the accused. They were undoubtedly in possession of the timber when the accused had caught hold of them. Under section 411, P. P. C. the mere possession of the stolen property is not sufficient. In addition to it, it has got to be established that the person in possession of the stolen property had dishonestly received or retained the property knowing or having reason to believe the same to be stolen property. The onus is on the prosecution to prove the essential elements of the offence. It is only under section 114 of the Evidence Act that the Court may presume having regard to Illustration (a), "that a man who is e to possession of stolen goods soon after the theft is either a thief' or has received the goods knowing them to be stolen, unless he can account for his possession". The presumption arises only when the accused is found in possession of the stolen property soon after the theft, and is unable to give a statisfactory account of his possession. But when the circumstances do not raise the presump tion, then in the absence of any other evidence to connect the accused with the offence, he cannot be held guilty under section .411 P.P.C.

13. It now remains to be considered whether private persons are entitled to raise such presumption. Section 114 of the Evidence Act empowers only the Courts to raise inferences as to the existence of facts specified therein. There is no provision of law under which a private person is entitled to raise such interference. If this view is correct, which as at present advised, I see no reason to, doubt, then the accused in the instant case were not entitled to reach the conclusion that the timber belonged to the Forest Department ; 'that it was drifted timber ; that it was acquired dishonestly ; and that the persons in possession of it knew or had reason to believe that it was stolen property. In judging whether a cognizable and non‑bailable offence is being committed in his view, within the scope of section 59 of the Code of Criminal Procedure, a private person is not entitled to embark on a process of reasoning and then with the aid of presumption of law and of facts to reach the conclusion that such is the case. This is the function of a judicial tribunal and not of a private individual: A private person has to act on what he sees, and if he finds that such an offence is being committed in his view, then he is empowered to arrest the offender. But if he has merely reasonable suspicions about the commission of such an offence, then, in that case, he is not legally entitled to arrest the offender. A police officer can of course arrest a person without a warrant in the exercise of his powers under section 54 of the Code of Criminal Procedure, if a reasonable suspicion exists that he is concerned in a cognizable offence, but a private person has no such powers. It is true that as admitted by Sub‑Inspector Shahzada Tahawar Zaman, the police and the forest officials had proclaimed that private persons could arrest a person removing drifted timber. But no, such order has been placed on the file, and it is not clear under what circumstances such a proclamation was made. In any case, I think that what was really meant was that if anybody was found removing timber from the bank of the river, he could be arrested, and not that if a person was found in possession of timber miles away from the river bank, then also he could be arrested by a private person. After a careful consideration of the facts of the case, I have reached the conclusion that the accused had no right to arrest Shera P. W. and his companions or to seize the timber.

14. It is also contended that Shera P. W. and his companions were liable under Martial Law Regulations Nos. 8 and 15 and consequently the accused could. have arrested them. These Regulations read as follows :‑ Regulation. No. 8 : "No person shall wilfully damage public property or property which is employed for the maintenance of public services or of supplies to Pakistan Forces or to the civil popula tion. Maximum penalty death." Regulation No. 15 "No person shall damage, tamper with or interfere with the working of roads, railways, canals, aerodromes, telegraph, telephone, wireless installations or with any other Government property. Maximum punishment death." It will be seen that these Regulations have no application to the facts of the present case. From the language used in these Regulations it is obvious that they apply to different sets of circumstances. Besines, I think that these offences do not fall within the ambit of section 59 of the Code of Criminal Procedure.

15. On the facts of the present case, the question whether the accused were entitled to arrest Shera P. W. and his companions or to seize the timber is only of academic interest, because the accused had detained Shera P. W. and his companions and had seized the timber at about midnight and the occurrence had taken place a few hours later in entirely different circumstances. Raja deceased and Muhammad han and Bahawala P. Ws. had come There at about sarghiwela. They merely tried to convict the accused that Shera P. W. had honestly acquired the timber and in the course of the talk the accused flared up and one of them abused Raja deceased, and he and Muhammad Khan P. W. then returned the abuse, upon which the attack was launched by the four accused. The suggestion that they wanted to rescue Shera and his companions and to remove the timber forcibly is not borne out by any evidence on the record. If the deceased and his companions wanted to rescue Shera and his companions and to take away the timber forcibly they would have certainly come heavily armed and would have attacked the accused party. But it is important to note that they are not alleged to have caused any injury to anyone. It is not even alleged that they were armed. It is, therefore, obvious that they had not come to rescue Shera P. W. and his companions and to remove the timber forcibly. They had merely come to plead with the accused and to request them to release the timber and Shera P. W. and his companions.

16. For the reasons stated above, I am satisfied that the accused have been rightly convicted for the offences of which they have been found guilty by the learned Additional Sessions Judge. The sentences awarded to the accused in the circum stances of the case are not severe and I accordingly dismiss this, appeal. Ahmad Khan accused, who is on bail, should be re arrested and required to undergo the unexpired portion of his sentence. K.M.A. Appeal dismissed