P L D 1963 (W (PLP)

8. As regards his conviction under section 75, P. P. C. the record shows that he has a good number of previous convictions which have been proved satisfactorily according to law. P. W. Ahmed Ali clerk Central Prison, Sukkur has produced extracts from the Prisoners Admission Register of Sukkur. His evidence shows that the appellant had served the following sentences in view of his convictions:‑ (1) 2 years' R. I. under section 379, P. P. C. awarded to him by R. M. Larkana on 10‑5‑51. (2) 2 years' R. I. on 4‑8‑52 under section 279, P. P. C. by R. M. Larkana. (3) 18 months' R. I. and fine of Rs. 200 or 4 months' R.I. in default awarded to him by City Magistrate, Shikarpur of 7‑3‑55. (4) One years' R. I. under section 411, P. P. C. awarded to him by Sub‑Judge and F. C. M., Jacobabad on 31‑5‑

60. Evidence of Haider Ali, Finger Print Bureau Lahore shows that the appellant had the following convictions "(1) By F. C. M. Ghotki on 18‑2‑46 under section 457, 380 P. P. C. R. I. for 9 months under section 457, P. P. C., 2 months' R. I. and fine of Rs. 100 or 3 months' R. I. under section 380, P. P. C. (2) By F. C. M. Pano Akil on 21‑7‑47 under section 411, P. P. C. and sentence to 18 months' R. I. (3) By R. M. Larkana on 10‑5‑51 under section 379, P. P. C. and sentenced to 2 years' R. I. (4) By R. M. Larkana on 4‑8‑52 under section 379, P. P. C., and sentenced to 2 years' R. I. (5) By C. M. Shikarpur on 7‑3‑55 under section 380, P. P. C. and sentenced to 18 months' R. I." The appellant in his statement either stated that he does not remember or stated that he was acquitted, but has not proved that he was in fact acquitted.

9. Section 75, P. P. C. speaks of enhanced sentence. The sentence of 3 years awarded to him is provided for in section 411, P. P. C. itself. It appears to me that the learned Additional Sessions Judge has not utilised section 75 against the appellant ‑ at all although charge under section 75 was proved and so also f the evidence that the appellant had many convictions against hi lm to justify an enhanced sentence under section 75, P. P. C.

10. The appeal is dismissed. Notice will issue to him to show cause why his sentence should not be enhanced.

11. The case against appellant Esso may now be considered. The pieces of evidence against the appellant are these :

12. While in police custody the appellant Esso led P. W. 9 S. H. O. Ghulam Hussain and P. W. 4 mashir Gul to the shop of P. W. 2 Alamgir a radio mechanic in Shahdadpur and there pointed out the transistor in Court at that shop. The S. H. O. secured the transistor thus pointed out under mashirnama Exh.

9. Evidence of P. W. 2 Alamgir shows that the appellant had brought the radio to his shop for repairs on 15‑8‑

61. Alamgir had issued such a receipt Exh. 5 to the appellant. This receipt was secured on 22‑8‑61 by the Head Constable P. W. 7 Pahalwan from the appellant in presence of P. W. 3 Kandero. Kandero also deposes to this fact. The corroborating mashirnama is Exh.

7. The above evidence clearly establishes that the appellant had the stolen transistor in his possession and that he had banded over the same to P. W. 2 Alamgir mechanic for repairs and obtained the receipt Exh. 5 from him for the purpose.

13. The appellant in his statement in the committal Court Exh. 20 and in his statement in the Sessions Court Exh. 21 has denied his leading the police to the shop of Alamgir and pointing out the transistor radio in Court, in that shop. He has also denied that receipt Exh. 5 was secured from him by the police. He alleges that co‑accused Gulsher was hostile to him and had, therefore, implicated him falsely. The appellant further stated that he had seen the transistor radio with accused Gulsher at Jhol where Gulsher wanted to dispose it of but as everybody knew that it was stolen property no one purchased it there. According to the appellant Gulsher had handed over the radio to Alamgir and obtained the receipt in the appellant's name as Gulsher knew the appellant before. I disbelieve the statement. It is absurd. Alamgir as pointed out by the learned Additional Sessions Judge is a mohajir and not interested in any person and there is no reason why Alamgir would implicate the appellant as being the person who had left the transistor with him for repairs and obtained receipt Exh.5 for the purpose. As the appellants Esso and Gulsher were found in possession of the stolen transistor radio soon after the theft the presumption will be that they bad received or retained the stolen property dis honestly knowing the same to be stolen. Their denial of being in possession of the property adds to the inference against them. Esso's appeal is dismissed.

14. The joint trial of the appellants is justified under clause (f) of section 239, Cr. P. G. since the property found from the possession of the appellants though at different times and in different places was subject‑matter of one theft committed in the train by the removal of the bag containing these stolen articles, and the possession of which had been transferred by one D offence i.e., property was transferred from 'the owner to the thief. The phrase does not imply a transfer from thief to receiver of stolen property. I am fortified in this view by the same view expressed by Kayani, J., in the case Saidoo and another v. The Crown (P L D 1949 Lah. 535) and by Rahman, J. in the case Waryam son of Kabir and another v. The Crown (P L D 1950 Lah. 348). K. B. A.