P (PLP)

‑This order will dispose of three criminal revision petitions Nos. 281, 282 and 283 of 1950. The petitioners in the first case are Waryam and Fazal, who were convicted by the trial Court under section 411, Pakistan Penal Code, and sentenced to eighteen months' rigorous imprisonment each. In the second case, the learned trial Magistrate convicted Waryam, Fazal and Haitam under section 411, Pakistan Penal Code, and sen tenced them to eighteen months' rigorous imprisonment each. In 'the third case, the same learned Magistrate convicted Waryam, Fazal and Haitam under section 411, Pakistan Penal Code, and awarded them the identical sentences of eighteen months' rigorous imprisonment each. One other accused Hasna, who was tried along with the petitioners in the second case, was acquitted. The sentences in all the three cases were ordered to run concurrently. The convicts appealed to the learned Sessions Judge, Lyallpur, who disposed of all the three appeals by one order, dated the 17th of February 1950. Although the property recovered from the various petitioners was said to have been produced by them at one and the same time before the police, it is clear that the property pertains to more than one theft. There was, however, no evidence that the various petitioners had received the property pertaining to different thefts on different occasions, the learned Sessions judge, therefore, took the view that there could have been only one trial and one conviction under section 411, Pakistan Penal Code, against all the appellants. He, consequently, allowed the appeal to the extent of directing that only one sentence of eighteen months' rigorous imprisonment under section 411, Pakistan Penal Code, would stand against each of the appellants. The first point raised by the learned counsel for the petitioners before me, is that there was misjoinder of persons in all the three trials, contrary to the provisions of section 239 of the Criminal Procedure Code and, therefore, the trials were illegal. The clause of section 239, Criminal Procedure Code, on which reliance has been placed on behalf of the prosecution in these three cases in clause (f). This runs as follows :‑ " persons accused of offences under sections 411 and 414 of the Indian Penal Code or either of those sections in respect of stolen property the possession of which has been transferred by one offence." Learned counsel for the petitioners has argued that this clause was not applicable to any of the cases under consideration. His contention is that the stolen property alleged to have been recovered from the various accused persons, pertained to different thefts and there was nothing in the evidence to indicate that the possession of the stolen property had been " transferred by one offence." Learned counsel for the petitioners, evidently seeks to interpret the expression " transferred by one offence " as referring to the fact of transfer to the receivers of stolen property. On the contrary, learned counsel for the Crown has put forward the proposition that this expression refers to the original offence of theft and not to the subsequent transfer to the dishonest receivers of property. The clause is not very artistically drafted and the word " transferred " appears, on first sight, to be inapt in this context, if the interpretation contended for, on behalf of the Crown, is to prevail. But the joint is covered by authority. This clause came in for interpretation in 141st. Guliania v. Emperor, (A. I. R. 1928 Pat. 38 (D. B.); Emperor v. Lakhu Amra (A. I. R. 1932 Bombay 201 (D. B.) and Shakur and others v. Emperor (A. I. R. 1935 Oudh 475) and in all these authorities the interpretation was adopted that the expression " transferred by one offence " referred to the original theft and not to the subsequent transfer to the receivers of the stolen property. The same view was impliedly endorsed in Ram Khelwan Kahar v. Emperor (A.

1. R. 1938 Cal. 525 (D. B.), Bhaggan v. Emperor (A. I. R. 1935 Oudh 327) and in a Division Bench decision of this Court in Emperor v. Fasih‑ud‑Disc and others (A. I. R. 1927 Lab. 737). The word " transferred " in this clause had apparently been used in the same sense as in section 410, Pakistan Penal Code, which defines " stolen property " This section starts with the words property, the possession whereof has been transferred by theft, or, by extortion, or by robbery, etc". If this interpretation were not to be adopted, clause (f) would appear to be redundant in section 239 Criminal Procedure Code. I, therefore, uphold the interpretation contended for by the learned counsel for the Crown. Coming now to the facts of the cases before me, I find that in Criminal Revisions Nos. 282 and 283, the various accused were charged with being in possession of properties which were the subject‑matter of more than one theft. Consequently, it is obvious that clause (f) is not attracted to these two cases at least. No other provision has been relied upon by the prosecu tion, which would justify the joint trial of the petitioners in these two cases. I would, therefore, hold that as an express provision of law concerning the made of trial has been contravened, the trial in both these cases is illegal. See in this connection Subrahmania Ayyar's case reported as. I. L. R. 26 Mad. 61 (P. C.). I am, therefore, constrained to quash the convictions and the sentences of the various petitioners in Criminal Revisions Nos. 282 and 283 of 1950. The petitioners in these cases are already on bail and they will be deemed to have been discharged from their bail‑bonds. The case of the petitioners in Criminal Revision No. 281 of 1950, however, stands on a different footing. In that case, the charge related to the alleged receiving of stolen property pertaining to one theft alone, namely, that committed at the house of Shah Muhammad P. W. This case thus appears to be fully covered by the authorities mentioned above. Learned counsel for the petitioners tried to argue that as these very petitioners had been tried in two other cases with Haitam and Hasna in respect of properties alleged to have been recovered from their possession at the same time as the property involved in Criminal Revision No. 281 and which other property pertains to different thefts, the trial in the case out of which this revision has arisen, was also illegal. I am not prepared to subscribe to this view. As observed above, in this case, the charge against Waryam and Fazal expressly mentioned only one theft and the mere fact that the prosecution confined their attention to part of the property recovered from the accused for the purpose of this case, cannot make the trial illegal. If the trials in the other two connected cases had not been open to exception on the point of misjoinder of persons, it could have been urged that the prosecution had erred in splitting up the recovery into three recoveries and in making it the subject matter of three trials, in the absence of evidence to show that the property involved in the three cases had been received on three different occasions. This question, however, does not arise, because the trials in the other two cases have been held to be illegal because of misjoinder. So for as I can see, no exception can be taken to the form or mode of trial in the case out of which Criminal Revision No. 281 of 1950 has arisen. I next come to the meats of the case in this revision petition. That there was a theft at the house of Shah Muhammad (P. W. 1) in the course of which clothing, ornaments and cash were stolen, admits of no doubt. There was a prompt F. I. R. lodged by Shah Muhammad in which he gave a detailed des cription of the property he had lost by theft. About a month and three days latter, a shirt was recovered from the possession of Fazal and a pair of silver karas and a purse from that of Waryam petitioner. These two accused are said to have pro duced these articles voluntarily, during the investigation, from their respective houses: The recoveries from them are estab lished by unempeachable evidence on the record. The petitioners denied the recoveries at their instance and did not lay claim to these articles as their own property. The description of these articles, tallies with the description of the corresponding articles given in the F. I. R. and Shah Muhammad identified the recovered property to be his. In these circumstances the inference is clear that the articles in question were part of the stolen property and were found in the possession of the two petitioners some 33 days after the theft. The petitioners offered no expla nation as to how they came by them. The presumption would, therefore, be legitimate that they had received this property, knowing‑ it to tie stolen, property. The convictions under section 411, Pakistan Penal Code, in this case, consequently, are not open to exception. However, the property recovered in this case is not con siderable. In view of this fact, while maintaining the convictions of the two petitioners in Criminal Revision No. 281 of 1950, I reduce their sentences to 9 months rigorous imprisonment each. The petition is allowed to this extent. These two petitioners are on bail and they must be re‑arrested to undergo the remainder of their sentences. It would now be for the prosecution to decide whether they wish to have Hetan re‑tried or not. K. M. A. Order accordingly.