1968 (PLP)

2. The brief facts giving rise to the case are that a case for dissolution of marriage filed by ore Mst. Khurshid Begum against Muhammad Shafi, a step‑brother of the present petitioner, was pending in the Court of the Civil Judge, Leiah, in the month of May 1966. The case was fixed for the 11th of May 1966, and a day earlier on 10th May 1966, the learned Civil Judge at about 3 p.m. asked the Reader to bring the file as he wanted to study it. The Reader Munshi Farid Bakhsh, who subsequently appeared as D. W. 5, informed the Civil Judge that the file was with Mushtaq Ahmad, Ahlmad (P. W. 6) who had gone to take his meals. The Ahlmad was sent for and directed to produce the file, but after having in vain searched for it was at a loss to trace it. It was suspected that the file was removed by some interested person and accordingly the Civil Judge Mr. Rasul Bakhsh Leghari (P. W. 5) contacted Mr. Muhammad Ali, Secretary, Bar Association (P. W. 3) to assist him in tracing the file. On the following morning, Mr. Muhammad Ali informed the Civil Judge that on 10‑5‑66, the file had been seen by Khuda Bakhsh (P. W. 4), a Clerk of Malik Ghulam Haider, Advocate, and Muhammad Sadiq (P. W. 1) and Ghulam Rabbani (P. W. 2), Advocates with Juma the present petitioner and his brother Nawaz who wanted to consult them. On receipt of this information, the Civil Judge addressed letter Exh. P‑A to the S. H. O., Leiah, on the basis of which a formal F. I. R. Exh. P‑A/I was drawn up.

3. Juma petitioner and his brother Nawaz were arrested by Sh. Aziz Uddin, A. S. I., who investigated the case, but the file was not recovered from either of them. They were, however, sent up under section 379, P. P. C. and were tried by the Sub‑Divisional Magistrate, Leiah. At the trial, the prosecution case principally rested on the testimony of the three Advocates Sh. Muhammad Sadiq (P. W. 1), Ghulam Rabbani (P. W. 2) and Mehar Muhammad Ali, Secretary, Bar Association (P. W. 3) and that of Khuda Bakhsh (P. W.4), a Clerk of Malik Ghulam Haider, Advocate. Rasul Bakhsh Leghari, Civil Judge and Mushtaq Ahmad, Ahlmad of his Court, were also examined as P. W. 5 and P. W. 6 respectively and supported the prosecution version. Juma petitioner and his brother examined five witnesses in defence to show that they had been falsely implicated at the instance of one Karim Bakhsh, a Tax‑Collector of Leiah, who in collusion with one Behram Khan, Advocate, a friend of the Civil Judge, had got them challaned in a false and trumped up case owing to personal enmity. Placing full reliance on the evidence of the P. Ws. and discarding the defence version, the learned Sub‑Divisional Magistrate came to the conclusion that the offence had been fully brought home to the petitioner and his brother Nawaz and accordingly convicted them under sections 411 and 414, P. P. C. respectively. Nawaz was, however, acquitted in appeal. The petitioner having failed in appeal had filed the present Criminal Revision.

4. The principal contention raised by the learned counsel for the petitioner is that an essential prerequisite for a conviction under section 411, P. P. C. forming its very basis, is the establish ment of the fact that the property allegedly received or retained is a stolen property, which ingredient has not been satisfactorily proved in the instant case. It is argued that the possibility of Mushtaq Ahmad, Ahlmad (P. W. 6) having handed over the file to the petitioner and his brother to be returned after consulting some Advocate, cannot be ruled out. It is further argued that such an arrangement between the litigants and subordinate officials of the Courts in whose custody the files are kept, though illegal, is a matter of daily occurrence and of common observa tion. As such the Courts below have proceeded on the erroneous assumption that the offence of theft had been committed in respect of the missing file.

5. The contention raised by tae learned counsel does not appear to be without substance. In so far as the commission of an offence of theft under section 379, P. P. C. is concerned, it was not found to be established, inasmuch as from the statement of Mushtaq Ahmad, Ahlmad (P. W. 6), it is clear that the lock of the almirah to which the files were consigned was found to be intact on the morning of 10th May 1966, and the key of the lock was with him. The learned trial Magistrate had, therefore, rightly held that an offence under section 379, P. P. C. was not made out against the petitioner or his co‑accused.

6. Although the file was not ultimately recovered during investigation or at any subsequent stage, the want of recovery would not per se be good enough to successfully challenge a conviction under section 411, P. P. C., if otherwise warranted by evidence. Again in cases of this kind the possession of stolen property would normally give rise to an adverse presump tion tinder section 114 of the Evidence Act against the person found to be in possession, but there is yet another aspect of the matter. As argued by the learned counsel for the petitioner, in the absence of any proof of theft, in the peculiar circumstances of the case where the possibility of the missing file having been deliberately made over by the Ahlmad to the petitioner and his brother cannot be ruled out, it cannot be said with certainty that the receipt or retention of the file by the petitioner and his brother, though otherwise wrong, was either dishonest or was in respect of a stolen property. There are other relevant circumstances, which lend further support to this view. Normally a person would like to steal a file to do away with it in order to escape legal consequences of the case pending against him or against any other person in whom he might be interested. The manner in which the petitioner and his brother seem to have openly paraded in the Court premises with the missing file, in their effort to consult at least three Advocates of the Leiah Bar Association, would go a long way to indicate that it was perhaps by way of mutual arrangement with the Ahlmad that they had removed the file on the understanding of its being returned after consulting some counsel. The peti tioner's conduct is evidently not that of a thief, or of a receiver of stolen property. Assuming that the file had been stolen not to burn or destroy it but temporarily with the object of restoring the same after consultation of some counsel, the petitioner would not dare show the file openly to three counsel in the Court premises but would certainly take some precautions to avoid the risk of being caught, and as such would normally have contacted a counsel rather stealthily and in isolation preferably in his house. The petitioner's behaviour was thus not in accord with the ordinary course of human conduct. Yet another important fact, which cannot be lost sight of is that of the antecedents of Mushtaq Ahmad himself. From his own showing, at the time when he‑appeared at the trial as P. W. 6, he was under suspension in connection with a departmental enquiry pending against him which was` the third enquiry started against him. It is well settled that where more than one alternative versions are possible, the one favourable to the accused had to be preferred. The possibility of the missing file having been entrusted by the Ahlmad to the petitioner cannot be ruled out, and as such it would not be a case of dishonest receipt or retention of stolen property. Consequently, the case against him is not completely free from doubt. Mushtaq Ahmad, Ahlmad, had admittedly a shady past. The illegal practice of handing over official records to litigating parties on receipt of petty amounts as illegal gratifi cations is not completely unknown. Howsoever, regrettable and condemnable otherwise the practice may be, its existence as an unpalatable fact, cannot be denied. Even at the trial suggestions were made to all the important witnesses that they had deli berately tried to screen Mushtaq Ahmad, Ahlmad.

7. From the unimpeachable evidence of the two Advocates supported by Khuda B3kbsh (P. W.4), a Clerk of another Advocate, the fact that the petitioner was found in possession of the missing file stands fully established. The question that falls for determination, however, is whether this finding would constitute a valid basis for a conviction under section 411, P. P. C. of which following are the essential ingredients to be proved. (i) Receipt or retention of property belonging to someone else; (ii) The property should be stolen property; (iii) Existence of knowledge or belief on the part of the person found in possession that the property is stolen; (iv) The receipt and retention should be dishonest. From the above analysis it becomes abundantly clear that the mere disappearance of the file from the record cannot be equated with its theft, nor can its theft invariably give rise to the in ference of dishonest receipt or retention. In view of the possibility of the file having been entrusted to the petitioner by Mushtaq Ahmad, Ahlmad, one of the essential ingredients of an offence under section 411, P. P. C. would be lacking. It may, however, be argued that the petitioner never specifically took this position. It is well settled that if a reasonable possibility of such a plea could be spelt out from the circumstances of the case, the omission on the part of the accused person to raise the same or, to take an inconsistent position would not be fatal to his defence. This would be inferred by analogy from Ali Zaman v. The State (P L D 1963 S C 152). In this view of the matter, petitioner's conviction under section 411, P. P. C. cannot be sustained.

8. There is, however, yet another aspect of the matter. Having upheld the concurrent findings of the Courts below that the petitioner was found in possession of the missing file, the question would rise whether he could be found guilty of any other offence such as mischief or causing disappearance of evidence, etc. Since, however this would be making out an altogether new case against the petitioner calling for a retrial, in view of the sentence already undergone by him besides the inconvenience and expense of the trial. I do not feel inclined to order a retrial even if the petitioner may be chargeable with some other offence.

9. In consequence, I accept the revision, set aside the conviction and sentence of the, petition and direct that he may be released from jail forthwith if not required in any other case. Petition accepted.