P L D 1949 Lahore 535 (PLP)

A I R 1928 Pat. 38 ; A I R 1932 Bom. 201 and A I R 1935 Oudh 475 relied on. Din Muhammad Mehra for Petitioners. Muhammad Sharif A. A. G for Respondent. Judgment Kayani, J.‑-- The two petitioners, Faiz and Saidu, have been convicted under section 411 Indian Penal Code for the possession of stolen property, namely, a bullock each and sentenced each to rigorous imprisonment for nine months. The bullocks in question belonged to Shera (P. W. 1) and were stolen from his cattle‑enclosure at Chah Umar Din in Chack No. 36 S. P. on the night of the 26th April 1948 and having made an unsuccessful search in the wake of tracks he made a report to the police station on the 28th April 1948. On the night of the 30th October 1948, while A. S. I. Nazar Hussain (P. W. 9) accompanied by Rahmat Ali Lambardar of Basirpur (P. W. 7) and Saddiq Daffadar (P. W. 8) was patrolling in the neighbourhood of the village Basirpur he came across Saidu petitioner during the small hours taking a bullock. He arrested Saidu as a suspect and on the following day, consequent upon the interrogation of Saidu, sent for Faiz petitioner also. On the 1st November 1948 Faiz took him to village Chasti Muhammad Yar where at his instance Rahmat Ali (P. W. 4) produced another bullock. He also produced a receipt Ex. P. A. purporting to have been executed by Faiz in favour of Rahmat Ali on the 14th of June 1948 showing the sale of the bullock for Rs.

237. The receipt was written by Abdul Haq (P. W. 6). The two bullock were identified by the complainant as his own and they have not been claimed by the petitioners. In respect of the receipt it was argued in the lower Courts that the petitioner's thumb impression had been obtained forcibly by the police. This is a common enough argument in cases where a thief cannot deny his thumb‑impression. In respect of the other bullock it was argued that the description given in the first report was different from the description in the recovery list. According to the first report it was red in colour with a black tail and small horns, strongly built and about four years of age. According to the recovery list it was a kakka bullock of wheat colour with new horns and black tail, ordinary size, having white spots on the side. There is no difference in the description except that while some people might call a bullock red in colour others might describe it as having the colour of wheat. There is only an addition of white spots in the recovery list, but that does not amount to a discrepancy. On the facts, therefore, I am satisfied that the conviction is proper. The petition has been admitted, however, on the ground of a conten tion that the two petitioners could not have been tried jointly. It seems to me that the case is covered by section 239 clause (f) of the Code of Criminal Procedure which says that "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" may be charged and tried together. The words "the possession of which has been transferred by one offence" which define stolen property either relate to the transfer of possession from the owner to the thief or from the thief to the receiver of stolen property. If the latter meaning were accepted, it would only mean that the thief and the receiver of stolen property could be tried together. That would be without purpose, for the joint trial of a thief and a receiver of the stolen property has already been provided for in clause (e). Further, the words in question require that the possession should have been transferred by an offence and that offence should be only one. When a thief transfer's possession of stolen property it is not he who commits an offence by the act of transfer but the person to whom the possession is transferred. The word "offence" consequently should be interpreted to mean the offence which is involved in the transfer of the property from the owner to the thief. For these reasons, I am inclined to think that the only interpre tation of which clause (f) is susceptible is that if two persons have ‑com mitted offences under section 411, and the offences relate to separate lots of property in respect of which only one offence of theft was committed these two persons can be tried jointly. This view is supported by Mst. Guljania v. Emperor (A I R 1928 Pat. 38), Emperor v. Lakha Amra (A I R 1932 Bom. 201) and Shakur v. Emperor (A I R 1935 Oudh 475). The trial was consequently legal. The sentences are not excessive. The petition is dismissed. A. H. Petition dismissed