1979 PLP 316 (SCMR)

G. SAFDAR SHAH, J.‑On the night between 6/7‑10‑1976 P. Ws. Khalid Masud, Khuda Bakhsh, Ghulam Muhammad, Lal Khan and Muhammad Hussain organized a Nakabandi near Oil Well No. 2 at Toot, District Attock on prior information received by them that certain stolen goods belonging to the Oil and Gas Corporation were likely to be transported out of the area. At about mid‑night they spotted a truck bearing No. RIE‑1185 and on stopping the same, they carried out a search of it, and discovered that under the load of tinfoil, it contained 120 small protectors, 15 big protectors, 59 iron pipes, 14 bulldozers chain plates and four liner pumps, all worth about Rs. 50,

000. Upon the said discovery, the P. Ws. took the truck as well as the petitioner (the owner of the truck), his driver, the cleaner of the truck and four other co‑accused into custody where after Khalid Masood P. W. I lodged a written complaint at the local police station of Pindigheb on the basis of which F. I. R. of the occurrence was recorded. In pursuance of the said F. I. R. the petitioner and his six compatriots were arrested under section 411, P. P. C. and after the completion of the investigation of the case, challaned to the Court of Assistant Commissioner, Pindigheb,, exercising powers under section 30, Cr. P. C., to stand their trial. Upon the evidence produced before him the learned Magistrate found all the seven accused guilty, accordingly convicted them and sentenced each one of them to three years' R. I. and a fine of Rs. 500 each' and in default to further simple imprisonment for two months 'each. It seems that out of the said accused only Muhammad Rafique petitioner felt aggrieved of his convic tion as he alone went to the High Court in revision but the same was dismissed by a learned Single Judge vide his order dated 9‑1‑1979. It is in this back ground that the petitioner has come up to this Court praying for leave against the impugned judgment of the High Court. We have heard Mr. S. Safdar Hussain, the learned counsel for the petitioner. The only contention urged by him is that the conviction of the petitioner under section 411, P. P. C. is illegal. He argued that the petitioner was no doubt the owner of the truck in which the stolen goods belonging to the Oil and Gas Corporation were being carried, yet there was no evidence to show that he had received or retained the said goods dishonestly knowing or having reason to believe the same to be the stolen property. We are afraid, this contention, which is anchored in the language of section 411, P. P. C. has no force in it. The trial Court, the appellate Court as well as the High Court have, by taking into consideration all the evidence on record, recorded the finding against the petitioner, and, consequently, this Court cannot enter into the re‑appraisal of evidence when no grievance has been made that the evidence has been misread or disregarded. The learned counsel, however, argued that the prosecution has failed to prove its case against the petitioner under section 411, P. P. C. as there was no evidence that the said goods actually belonged to the Oil and Gas Corporation and stolen and further that the petitioner had dishonestly received or retained the same knowing or having reason to believe that they constituted stolen property. The contention is misconceived. It is in the evidence of the P. Ws. that the goods recovered from the truck of petitioner not only belonged to the Oil and Gas Corporation but were of a special type which could not be obtained from anywhere as commercial merchandize. In this respect the petitioner also seems to have been of the same view because in the cross‑examination of P. W. I Khalid Masood it was suggested to him that the said goods were also available with A. O. C. (presumably meaning Attock Oil Company) although he denied the said suggestion. It would thus be seen that the prosecution had not only proved that the said goods belonged to the Oil and Gas Corporation but also that the goods were stolen. Furthermore, the petitioner was found present in the truck during the dark hours of the night, which in the case of an owner of a truck was evidently unusual. In these circumstances the learned trial Magistrate was entirely justified to rely on clause (a) of section 114 of the Evidence Act, 1872, and presume that the petitioner, in whose truck the said stolen goods were found, was either the thief or had received the same knowing them to be stolen as he could not account for his possession. It may as well be noted that in his statement recorded under section 342, Cr. P. C. the petitioner not only denied that the said goods had been recovered from his truck but maintained that he was innocent and falsely involved in this case. In other words, he failed to account for the possession of the said goods and, consequently, the learned trial Magistrate was left with no option but to convict him upon the evidence produced before him on behalf of the prosecution. The learned counsel, however, relied on a judgment of this Court in Mukhtar Ali v. State (P L D 1971 S C 725) but the same is distinguished. In that case the stolen bicycle was purchased by the brother of one Muhammad Rahman for a sum of Rs. 180 in 1953. 11 years later it was sold by the appellant for the sum of Rs. 50 to one Nazar Chiragh Shah, who, in turn; old it to one Muhammad Yasin for the same price. It was in these circumstances that this Court held:‑ "It does not require an elaborate argument to reach the conclusion that possession simpliciter of‑ a stolen property is no offence. If possession is recent, the Court will presume that the person found in possession of stolen property is the thief or has received the goods knowing them to be stolen unless he can account for its possession. This presumption, however, did not arise in the present case as possession more than two Sears after theft could by no stretch of imagination be treated as recent. Section 114(a) of the Evidence Act had, therefore, no application in the case. Nor was there any extra‑circumstance to impute guilty knowledge to the appellant." Having said this, however, the Court further laid it down that: "We do not mean to lay down that in each case, efflux of time alone will negative that charge under section 411, P. P. C. If a person is found in possession of a stolen article which he has no ostensible means to acquire such as an expensive watch or a valuable stone, the Court may infer from this extra fact guilty knowledge on his part unless he can account for his possession. No universal rule can, therefore, be laid down for determining guilty knowledge of a person from whose custody a stolen article is received. The decision in each case will depend on its own facts." It is true that the possession of stolen goods simpliciter is not an offence but then each case will depend on its own facts. Upon the facts of this case in which the stolen goods belonging to the Oil and Gas Corporation were found from the truck of the petitioner (in which he was travelling) would attract to his case the presumption of guilt as per clause (a) of section 411 of the Evidence Act, unless of course he was able to account for his possession. The fact, however, is that he not only offered no explanation for his said possession but even denied the recovery of the goods from his truck. In these circumstances, therefore, no exception can be taken to the judgment of the Courts below as well as that of the High Court holding that he had indeed committed an offence under section 411, P. P. C. This petition, therefore, fails and is dismissed. Petition dismissed.