1969 P Cr (PLP)

MUHAMMAD MUNIR, C. J.‑

This is an appeal by special leave of this Court in a criminal matter. Two persons, both named Shamsul Haq and referred to in the course of proceedings as Shamsul Haq I and Shamsul Haq II, were tried by Mr. A. S. Khan, Special Judge, Rangpur, on charges of theft and receiving stolen property, the allegation against them being that on the night of 23rd April 1955, Shamsul Haq I who was the Reference Clerk in the office of the Assistant Manager, Government Acquired Estate, Nilphamari, had stolen a sum of Rs. 4,923 from a safe in the record office of that Estate and that on the following day both the accused persons were found in possession of the stolen money near the Railway Station of Rangpur. The Special Judge convicted Shamsul Haq I under section 381 of the Pakistan Penal Code and sentenced him to rigorous imprisonment for 4 years. The second Shamsul Haq Milo is appellant in the present case, was convicted only under Sec tion 411 of that Code and sentenced to rigorous imprisonment for 2 years. To the latter we gave leave to appeal on the ground whether the circumstantial evidence on which he had been found guilty was sufficient. We have not considered it necessary to hear the appellant. The theft was undoubtedly committed by Shamsul Haq I alone. The circumstantial evidence against the appellant is that he, along with the other Shamsul Haq, took leave of absence oil tire morning of the 24th April 1955, and that when both of them alighted front the train at Rangpur the appellant was seen by a rickshaw cooly carrying a canvas bag and depositing it in the rickshaw in which the other Shamsul Haq had taken his seat. The stolen currency notes were recovered from this bag, but it is admitted that the bag did not belong to the appellant, but to the other Shamsul Huq. In these circumstances, the question is whether the mere tact that the appellant was momentarily seen carrying the bag and putting it in the rickshaw in which the owner of the bag had taken his seat, was sufficient proof of the fact that the appellant was aware of the contents of the bag. We have no doubt that the answer to this question must be in the negative. The appellant was not questioned about this circumstance and, if on being questioned he had stated that the bag had been given to him by the other Shamsul Haq to take it to the rickshaw and that he did not know what the contents of that bag were, no Court could have possibly convicted him on being in possession of stolen property. We allow this appeal, set aside the conviction and sentence of the appellant and acquit him. Being already on bail he will discharged from his bond. Appeal accepted.