P L D 1963 (W (PLP)

2. The case for the prosecution, briefly, was that on the night of the 20th March 1962 while complainant Jaro accompanied by Abdul Aziz P. W. 2, Rahim Bux P. W. 3 and Siddik were proceeding with their bullock carts loaded with grain from their village Maloi to the town of Thul where they proposed to sell the grain, they were waylaid and surrounded soon after midnight near village Lokumal by seven dacoits armed with a gun, a pistol and hatchets who forced them to get down from their bullock carts and took them away to a distance of a few furlongs where they tied them up and made off with their three bullock carts. Three of the dacoits one armed with a pistol and two with hatchets stood as guard over the complainant and his companions till dawn when they left them and went away. The complainant and his companions then untied themselves and proceeded at once to Wadero Mir Ahmed Khan Khoso and informed him of what had happened. Complainant Jaro then proceeded to the Karim Bux Police Station where his report was recorded on 21‑3‑1962 at 9 a.m. No names of any accused were given in this report and the property stolen was said to consist of three bullock carts, six bullocks, and three sacks containing 30 maunds of paddy.

3. Sub‑Inspector Ghous Bux P. W. 12 the then S.H.O., Karim Bux Police Station took up the investigation of this case. He spent about a fortnight in recording statements of the prosecution witnesses and it was only on the 6th of April 1962 that on receipt of spy information he visited the village of the Mirbahars and searched the houses of the present appellants. He thus searched the house of appellant No. 1 Raza Muhammad in the presence of mashirs and the prosecution witnesses, Jaro P. W. 1 and Rahim Bux P. W. 3 and secured from there two wheels of a bullock cart, one bullock and a pair of slippers as per mashirnamas Exhs. 16 and

17. The next day 7‑4‑1962 this S.H.O. contacted Mato Chachar P. W. 7 and secured from him 9 maunds of paddy alleged to have been sold to him by appellant Raza Muhammad as per mashirnama Exh.

18. Thereafter, so far as the present appellants are concerned, nothing material occurred till the 12th May 1962 when the three remaining appellants Amir Bux, Faiz Muhammad and Isso produced before this S.H.O. at the Otak of Sardar Noor Muhammad Bijarani and in the presence of the three prosecution eye‑witnesses 1, 2 and 3 namely Jaro, Abdul Aziz and Rahim Bux and mashir Rahim Dil P. W. 6 the articles shown and described in the mashirnama of that date Exh. 25 in this case. The S.H.O then arrested these remaining three appellants and after holding an identification test on 17‑5‑1962 he challaned the appellants in Court on 23‑5‑1962.

4. The statement of these appellants in Court is one total denial of each and every allegation put to them. They have alleged enmity against the prosecution party and have alleged that the prosecution witnesses and the mashirs are all Haris of Muhammad Rahim Khan Khoso who is on inimical terms with them. They denied having produced any property before the police and with regard to the identification test they claimed that they were each shown to the witnesses before the test was held.

5. Now, the case for the prosecution as against these appellants stands upon the stolen property alleged to have been recovered from their possession. Admittedly, they were not previously known to the three victims of the dacoity namely Jaro P. W. 1, Abdul Aziz P. W. 2 and Rahim Bux P. W. 3 and hence were not named by them either in the F.I.R. or in their statements to the police and even in Court. It is in evidence that each of these appellants was put to an identification test after arrest but in view of the fact that at the time the property was being secured from each appellant the prosecution witnesses Nos. 1 to 3 were present and the great delay between the date of the incident and A the holding of the identification test no reliance can be placed on these tests and they have rightly been discarded by the learned Additional Sessions Judge. Thus, the only evidence that remains on the record against these four appellants is the property alleged to have been secured from their possession or produced by them and it, therefore, becomes necessary to closely examine this part of the prosecution case in order to determine whether the conviction of these appellants can be upheld.

6. With regard to appellant No. 1 Raza Muhammad it has already been stated above that S.H.O. Ghous Bux P. W. 12 searched his house on 6‑4‑1962 and recovered therefrom certain articles mentioned in mashirnamas Exhs. 16 and

17. It is of interest to note that the two wheels and the pair of slippers referred to in mashirnama Exh. 16 were not identified by anyone of the three prosecution eye‑witnesses. The learned Additional Sessions Judge has stated at page 109 of his judgment that the two wheels were identified by Rahim Bux and again at page 119 that "the two wheels were identified by the complainant Jaro to be his". But, neither of these witnesses have, in their deposition fn Court claimed to have identified these two wheels. Similarly, the pair of slippers referred to in mashirnama Exh. 16 has not been claimed by any of the prosecution eye‑witnesses. Mashirnama Exh. 17 refers to a brown bullock with small horns unspotted and with black tail. This bullock, too, has not been identified or claimed by any of the three prosecution eye‑witnesses. Mashirnama Exh. 17 mentions this bullock as being "Vegho bullock" that is to say one received in exchange and this being so it is only natural that this bullock is not identified or claimed by any one of the three prosecution eye‑witnesses. The last piece of evidence against appellant Raza Muhammad is the testimony of Mato Chachar to whom Raza Muhammad is alleged to have sold 9 maunds of paddy some 14 or 15 days prior to the day that it was secured from his possession by the police namely 7‑4‑1962 as per mashirnama Exh.

18. But, the bare oral word of this witness in the absence of any book entry and without any other witness in support of the alleged sale transaction cannot be implicitly relied upon. Thus, the evidence on which appellant No. 1 Raza Muhammad has been convicted is such as to raise a reasonable doubt in my own mind and giving him the benefit of this doubt I set aside his conviction and sentence and direct that he be set at liberty unless wanted in some other case.

7. With regard to the remaining three appellants the sum total of the evidence against them rests upon the production by them as per mashirnama Exh. 25 of the articles mentioned therein at the Otak of Sardar Noor Muhammad Khan Bijarani. The property produced by appellant Amir Bux consists of one white brown bullock, one black sack, a blue sheet of cloth and a pair of new shoes torn a bit. The property produced by appellant Faiz Muhammad consists of a brown bullock with hard horns and black tail, a brown bullock with flat horns and black tail, old and worn shoes and an old and worn turban. The property produced by Isso consists of one brown bullock with flat horns, a bullock cart with yoke, carpenter tools in gunny bag, and snuff coloured `Booski' turban with patches. From all these articles produced by these accused one month and twenty?two days after the date of the incident in this case only the bullock cart, the bullocks and the black sack are referred to in the F. I. R. The other articles do not find mention there. Now, it is claimed by the prosecution that these articles were identified by the three prosecution witnesses and for this purpose reliance is placed upon a mashirnama of identification Exh. 26 in this case. But, turning to this document I find that this alleged identification was, in fact, no identification at all. The goods produced by the appellant were not mixed up with other similar goods so as to put the identification witnesses to the test of identifying their own goods. Nor does this mashirnama mention any particular identifying mark or characteristic whereby the prosecution eye?witnesses were able to pick out their own property. It may be added here that any identification by the fourth victim of the dacoity Muhammad Siddik is useless for the simple reason that he was not put into the witness box and not examined as a witness in this case.

8. Mr. Muhammad Ibrahim Abbasi appearing on behalf of the appellants has argued that there has been a great delay of one month and twenty‑two days in the production of this property and that by reason of this lapse of time the guilty knowledge that is so essential for a conviction under sections 411 or 412, P. P. C. is missing in this case. On this point of guilty knowledge I am familiar with the case of Hashim Umar v. The Crown (I L R 1942 Kar. 186) where the Bench consisting of Sir Godfrey Davis, C. J. and Weston, J., has in its judgment emphasised the `recent' or "soon" possession as being an essential ingredient necessary to establish the inference that the accused received or retained the stolen property knowing or having reason to believe the same to be stolen. The learned Judges pointed out that in case under section 411, P. P. C.‑‑ "It is upon inference alone that the accused is to be convicted and this inference must be so strong as to constitute proof. Possession then must be recent and a possession that is not recent does not justify an inference which constitutes proof of the offence and which justifies conviction."

9. Mr. Muhammad Ibrahim Abbasi, Advocate, also laid emphasis upon the fact that the appellants 2, 3 and 4 voluntarily produced the property referred to in mashirnama Exh. 25 before the S.H.O. and he argued that this fact so far from raising a presumption of guilt rather goes to show a clear conscience in the matter and a desire to assist the police in their investigation. The learned defence Advocate relied upon the two cases of Hata v. Emperor decided by the Lahore High Court and reported in 44 Cr. L J 186 and the case of Niaza and others v. Azad J & K Government (P L D 1951 Azad J & K 37). In both of these cases it has been held :‑ "If a person of his own accord hands over stolen property t the Police in order to assist them in investigation, this action does not give rise to a presumption that he is the receiver of the stolen property in the criminal sense. On the contrary, the presumption would rather be that he had a clear conscience G in the matter. On the other hand, if it is supposed that he had a guilty conscience, the presumption would be that he had done this as a result of some pressure or inducement and the whole transaction stands on the same footing as an improperly obtained confession".

10. I find myself in agreement with these arguments of the learned Advocate appearing on behalf of these appellants. It seems to me that the case against these three appellants 2, 3 and 4 like the case of appellant No. 1 Raza Muhammad is not free from a reasonable doubt and, therefore, giving them the benefit of this reasonable doubt I set aside their convictions and sentences and direct that they be set at liberty unless wanted in some other case. K.B. A. ?????????? Appeal accepted.