P L D 1971 Peshawar 135 (PLP)

6. All the accused denied the charges. Wahab Sadin accused, however, stated:‑ "I am lessee of Jalaluddin Khan and live in his house which is constructed by me on his land. The tree in question was standing on his land outside my house. I have taken the tree for my own use which was recovered from my house sub sequently." Charges under sections 379/149 and 148/149, P. P. C. were framed against the accused. They produced D. Ws. Wazir, Wahid Gul and Habibur Rehman.

7. P. W. 1 Jalaluddin Khan deposed that he is owner in village Qurgh in Mahal Kuz Behram Dheri, while P. Ws. Abdul Wahid, Fazal Maula and Nasrullah and one Haji Fazal Wadud are his Kardars. He also testified that only Lal Sadin is land tenant while the others are his house tenant, and that according to Wajibul Arz tenants are not entitled to any share in the trees on the fields cultivated by the tenants. P. W. Abdul Wahid lodged the F. I. R. Exh. P. A. He has stated that he with P. Ws. Fazal Maula, Nasrullah and Fazal Wadud was sitting in the 'Dag' when they heard some noise. He and his companions went to the spot, where he saw the 5 accused armed with topaks and 30 other persons carrying the cut mulberry tree by means of rafters and ropes. On the protest of the witness, the five accused threatened him and his companions to keep quiet, while the other culprits took the tree into the house of Wahab Sadin. The witness informed Jalaluddin Khan, under whose direction he lodged the report at the P. S. Tangi. The witness admits this report to be correct. The witness has not been examined on the contents of the report. As the witness has admitted the contents of the F. I. R. to be correct, the material portion of the F. I. R. can be discussed. He has stated in the F. I. R. and correctly according to the Diary of the year 1969; that it was a moonlit night when on hearing the talk of many people he and his companions went there and saw many men there who were stealing the cut mulberry tree. The witness accosted them. In reply Wahab Sadin, Lal Sadin, Chamnai, Torai and Wahid Sadin said in loud voice that they should not come near. P. W. Fazal Mania supported the evidence of P. W. Abdul Wahid. In cross‑examination the witness stated that the tree which was lying cut, was in front of the shop of the accused. He also deposed that the accused are residing in this village for the last 15/16 years. He further stated that none from the village people had come to the scene of occurrence. P. W. Nasrullah also supported the prosecution case in the same way as by P. W. Abdul Wahid and Fazal Maula. Muhammad Zafar Patwari had produced the Wajibul Arz in Misli Haqlat of the year 1926‑27 of which Exh. P. F. is the attested copy. In the certified copy of the Wajibul Arz Exh. P. F., in the column `Bayan Zamindaran', it is recorded that in Mahal Kuz Behram Dheri all the tenants are tenants‑at‑will, the trees standing there are self‑grown (khudro) and they belong to the proprietary body. It is also recorded in the same document that the planting of trees is not prohibited but the tenants will have no right in such trees.

8. The evidence of D. W. 2 Wahid Gul is material. He is aged 60/65 years. He is the, superdar of the alleged stole tree. He has deposed that the tree was grown by the father of Wahab Sadin accused about 15 years ago, and tile father of Wahab Sadin died 12 years back.

9. Relying on the testimony of D. W. Wahid Gul. Mr. Muhammad Afzal Khan Bangash, learned counsel for the petitioners, strenuously argued that the accused had cut and removed the tree in bona fide claim of his right in that the same tree was planted by the father of Wahab Sadin, and as such no offence of theft has been committed. In Abdul Aziz Sattar v. Khaja Muhammad Ashraf and another (P L D 1965 Dacca 315) it has been held "that the removal of property on a bona fide claim of right, though unfounded in law and fact, does not constitute theft, but such a claim must not be a colourable one. Whether the claim is a bona fide one or not has to be determined upon the facts and circumstances of each case". In Chandi Kumar Das Karmarkar and another v. Abanidhar Roy (A I R 1965 S C 585), it has been ruled: "The ordinary rule that mens rea may exist even with an honest ignorance of law is some time not sufficient for theft. A claim of right in good faith, if reasonable, saves the act of taking from being theft and where such a plea is raised by the accused it is mainly a question of fact whether such belief exists or not. An act does not amount to theft, unless there be not only no legal right but no appearance or colour of a legal right. By the expression `colour of a legal right' is meant not a false pretence but a fair pretence, not a complete absence of claim but a bona fide claim, however, weak. If there be in the prisoner any fair pretence of property or right, or if it be brought into doubt at all, the Court will direct an acquittal." According to the two quoted decisions a claim of right in good faith must be reasonable and not a fall: pretence. In the present case P. W. Fazal Maula has testified that the accused are residing in the village for the last 15/16 years. D. W. Wahid Gul has stated that the disputed tree was planted by the father of Wahab Sadin 15 years back, and that the said father of Wahab Sadin died 12 years back. There is no cogent evidence available on record to suggest the age of the cut‑tree. However, the plea of bona fide claim of right to the cut and removed tree by the accused appears to be unreasonable and a false pretence because according to the Wajibul Arz a tenant had no right even in the planted trees and if for the sake of argument it is admitted that the cut and removed tree was planted by the fattier of Wahab Sadin accused, even then Wahab Sadin had no right to remove the same. Wahab Sadin in his statement at the trial has admitted that the tree in question was standing on the land of Jalaluddin Khan outside the house and that he took away the tree, which was recovered from his house subsequently, for his own use. In the statement Wahab Sadin has not claimed a bona fide right in the cut‑tree on account of its plantation by his father.

10. On the over all consideration of the prosecution and defence evidence and circumstances available on record, it is established that the tree was removed at kaza khfutan time on the night of occurrence into the house of Wahab Sadin by as many as 30 persons. In the F. I. R. Abdul Wahid has charged all the men present at the spot including the five accused to have removed the cut‑tree to the house. In their depositions at the trial P. Ws. Abdul Wahid, Fazal Maula and Nasrullah have stated that the 5 accused were present at the spot while the other men numbering about 30 had removed the tree by rafters and ropes. The F. I. R. of Abdul Wahid gives a suggestion that he had identified the 5 accused by their faces. In the circumstances of the case, in my view, the prosecution has not established the case beyond doubt against Lal Sadin, Khan Sadin, Rehmat Sadin and Wahid Sadin. Giving these four accused the benefit of doubt, I accept their revision petition, set aside their con victions and sentences on both the charges under sections 379/149 and 148/ 149, P. P. C., and acquit them. The four petitioners are present in Court as the term of their imprisonment has expired. The prosecution case against Wahab Sadin accused under section 379, P. P. C., is proved. I, therefore, maintain his conviction and sentence under section 379, P. P. C. only. He is acquitted of the charge under section 148/149, P. P. C., and his sentence on that count is set aside. His revision petition is thus partially accepted.

11. The revision petition of Abdul Wahid (No. 17/71) fails automatically, which is hereby dismissed. K. B. A. Petition partly accepted.