P L D 1976 Lahore 28 (PLP)

The two petitioners were convicted and sentenced to six months' R. I. under section 411, P. P. C. vide order dated the 30th of September 1974, of the trial Court. An appeal filed by them before the learned Sessions Judge also failed on 16th April 1975, and hence the present revision petition.

2. Briefly the facts leading to this petition are that on the night between. 16th/17th September 1972, the house of Muhammad Siddique (P. W. 1) was. burgled. He lodged F. I. R. on 20th September 1972, about this occurrence on which a case under section 380/457, P. P. C. was registered by the local police. Subsequently, most of the stolen articles were recovered from the two petitioners and they were challaned under section 411, P. P. C.

3. The prosecution examined 10 witnesses in support of its case. P.. W .

1. Muhammad Siddique complainant had identified the articles which bad been stolen from his house and got recovered at the instance of the two petitioners. P. W.

2. Farzand Khan and P. W. 3 Sardar Muhammad were the recovery witnesses of the ornaments recovered at the instance of Muhammad Ali petitioner. The ornaments which are described in Exhs. P./l, P/2 and P/3^ were contained in a pouch which was buried near the base of a tree in a field situate in the precincts of Thatta Gulab Singh. These were taken into. possession v;de Memo. Exh. P. B. dated the 27th of September 1972. It may be noted here that the two witnesses belong to the village Thapnalla, where the occurrence taken place. 3A. Another set of recovery witnesses is P. W. 5 Ishfaque. and P. W. 6, Akram. They witnessed the articles recovered vide recovery Memo. Exh. P. C/1 at the instance of Aslam petitioner from-4 'Bharola' and a 'Tin' lying in his house in village Thapnala. The descripti8n of these articles taken into custody is given in Exh. P. 4 to Exh. P.

23. This recovery took. place on 28th of September 1972, in village Thapnala, but the two recovery witnesses belong to another village Sukhana Bajwa. These witnesses stated that Murad Ali and another person of village Thapnala were also present at the relevant time but the police did not get their signatures on the recovery Memo. P. W. 4 Nazir and Muhammad Din Chaukidar (P. W. 7) witnessed. the recovery of the Sandheva, on 20th September supposed to have been left by the thief at the spot. but it was not produced in the Court. Muhammad Din, however, denied that the petitions were present at the time of this recovery. P. W. 8 Muhammad Afzal A. S. I. proved Exh. F. A. the F. I. R. which he stated had been correctly recorded. The Investigating officer who appeared as P. W. 9 in his deposition stated that be had effected all the recoveries and arrested the petitioners. The room of Aslam where the recovery took place was neither looked nor inhabited by other members of his family. Tin was also unlocked. He further stated that P. W. 1 had identified his articles at the spot of recovery. P. W. 10 deposed that Aslam petitioner had sold two pieces of the ornaments with him and received the price. These ornaments were neither produced nor identified.

4. In their statement under section 342, Cr. P. C. the two petitioners denied the allegations against them. They also disowned the recovered articles. They only produced Mahmood Ahmad son of Barkat Ali, Lambardar, in defence.

5. It is contended by the learned counsel that in order to bring home the guilt to the accused petitioners, the prosecution must have proved not only that the goods were stolen, but also that these were recovered from the possession of the petitioners who knew them to be stolen property. He relied on 1969 Cr. L J 774, 1968 P Cr. L J 362, P L D 1963 Kar. 1010 and P L a 1971 S r

725. He also referred to the entire evidence produced by the prosecution to state that firstly the recovery should not be believed at all as the recovery witnesses in both the cases did not belong to the village where the recovery is stated to have taken place. They were imported from other villages as nobody in .that village would be a party to that falsehood. He also referred to those portions of the evidence, where it was stated that both the sets of recovery-witnesses had joined the Investigating Officer at the 'dera' of Mahmood to say that Mahmood, who appeared as D. W., did not support this aspect of the case. According to Mahmood, Police came to the village in question only once and that too when it apprehended the two petitioners after the registration of the case.

6. It may be seen that the prosecution evidence has serious discre pancies. The Investigating Officer categorically stated that P. W. 1 had identified the stolen articles at the spot. P. W. 1 on the other hand stated that the articles were identified in the Police Station. I believe the two witnesses could not have forgotten this important' matter. The F. I. R. was lodged on the 4th day of occurrence and there is no plausible reason for this delay. The two sets of recovery witnesses of the stolen articles belong not to the village where the recovery took place but another village. The record suggests that persons of that very village were available at the arrival of the police. The house of Aslam petitioner wherefrom articles Exh. P. 4 to P. 23 were recovered was not locked. The containers in which the articles were stored, were also unlocked. The room .was inhibited by other members of the family.

7. Section 411, P. P. C. deals with 2 classes of offences; those of dishonestly receiving stolen property and the other of retaining stolen property knowing it to be stolen. The prosecution therefore, must prove that- (i) the accused was in possession of stolen property; possession may be actual or constructive, (ii) be dishonestly received or retained it, (iii) he know or had reasons to believe that it was stolen property. If any of the ingredients are missing or not proved the conviction will be bad. According to section 114, illustration (a) of Evidence Act the Court may presume that a man who was in possession of stolen goods soon after the theft, is either a thief or has received the goods knowing them to be stolen, unless he can account for his possession. It was held in P L D 1961 Lah. 630 as follows : , "Under section 411, Pakistan Penal Code, 1860 the mere possession of stolen property is not sufficient. In addition it has got to be established that the person in possession of the stolen property has dishonestly received or retained the property knowing or having reason to believe the same to be stolen. The onus is on the prosecu tion to prove the essential elements of the offence. It is only under section 114 of the Evidence Act that the Court may presume having regard to Illustration (a), 'that a man who is in possession of stolen goods soon after the theft is either a thief or has received the goods knowing them to be stolen, unless he can account for his possession'. The presumption arises only when the accused is found in possession of the stolen property after the theft, and he is unable to give a satisfactory account of his possession. But when the circumstances do not raise the presumption, then in the absence of any other evidence to connect the accused with the offence he cannot be held guilty under section 411, P. P. C."

8. The evidence about recoveries finds its admissibility as evidence section 27 of the Evidence Act. The importance ,of this section lies in the fact that the confession of an accused to say that such and such crime .articles were placed by him at a particular place is corroborated or supported by the recoveries made from the same place in his presence. Therefore, any discrepancy in the statement and the recovery must remove the recoveries from the ambit of this section. Section 27 is thus in the nature of a proviso to the general rule embodied in sections 24 to 26 of the Evidence Act where a presumption of falsity attaches to the confession made in the .circumstances given there. So a recovery under this section must be strictly proved by independent evidence before . it is believed, as laid down by a full Bench of this Court in 1929 Lah. 344 (347). Further, it is proper and necessary to comply with the essentials about search as laid down under section 103, Cr. P. C., that 2 respectable persons from the locality must be ,called to witness the recovery. The concocted recoveries are go notorious in this Province that the Courts must require a strict proof thereof. Therefore, in the absence of respectable search witnesses from the locality, heavy onus lies on the prosecution to show the circumstances, which compelled it to carry out search without such witnesses. It has been held in 1971` P Cr. L J 274, that in the matter of search, the Court must insist on strict compliance with the requirements of the relevant provisions of the Code and any departure from the rule should be strongly deprecated. Where all the search witnesses belonged to a far off village and there was no witness from the locality to corroborate them, it was found unsafe to rely on their testimony, in 1972 P Cr. L J 279.

9. In the present case the articles were allegedly recovered at the instance of the petitioners. The time lag between the theft and recovery is not too long. Therefore, ordinarily presumption would apply if possession is proved. It is thus necessary to see, if there is any reliable evidence showing that the goods were in possession of the petitioners. This aspect of the case assumes far more importance particularly when petitioners have denied the recoveries at their instance. It has already been given above that the recovery at the instance of Muhammad Ali was from a crop not owned by him. The recovery witnesses were also not from the same village. It has not been shown that no other person would have access to that place. Therefore, the public generally had access to that place equally, the articles cannot said to be in possession of the accused as held in P L D 1951 Bal. 30, in the case of Pathan and another v. The Crown. Thus where the articles were recovered from a well in A I R 1959 Pat. 54, the mere knowledge of the accused about the stolen property being in the well will not be sufficient to lead to the inference that he was in possession of those ornaments in the well. In another case of Ram Autar ((1936) 12 Luck. 88) where the only evidence against the accused was that he produced stolen property buried under a tree in a certain field, not belonging to him, as in this case, it was held that the evidence was not enough to prove the exclusive possession of the property with the accused to convict him under section 411, P. P. C.

10. Similarly, in the case of Aslam petitioner, the articles, i.e. clothe are said to have been recovered at his instance from a `Bharola' and a 'tin none of which were locked. These two containers are said to be lying i the unlocked room of Aslam. In such circumstances it was incumbent on D the Courts below to be satisfied that these articles were in exclusive possession of the accused and it was reasonably impossible for other persons to introduce the articles in the room without the petitioners' knowledge as held in .A I R 1942 Cal.

440. In a similar case, P L D 1962 Kar. 270, where the stolen articles were recovered from a cornbin in a house, the mere knowledge of the accused was held insufficient to convict him under section 411, P. P. C. In the case in hand, Aslam petitioner was arrested on 24th as deposed by Muhammad Khan, A. S: I. (P. W. 9) and the recovery took place on 28th, that is 4 days thereafter. No other person was living in this room and it was unlocked. The two containers of the recovered goods were also unlocked. In the circumstances, I am surprised how the two courts below convicted the accused on such evidence. The fact .of recovery is further doubtful on the ground that, in both the cases, the recovery witnesses have been brought from the villages other than the one where from the recovery took place. It is in evidence that persons from the same village were available at the relevant time. An adverse inference will thus be drawn from this situation against the prosecution.

11. The learned counsel then challenged the very joint trial itself on the ground that it is bad in law and that the defect cannot be cured under section 537 of the Cr. P. C. as the prejudice caused is substantial. It was submitted by him that under section 239, Cr. P. C. a joint trial of the -petitioners could have taken place only either under clause (a) or (f ) of section 239, Cr. P. C. but the case of his clients was not covered by any of the two provisions. This contention of the learned counsel, however, is not well-founded for when the property was originally stolen on one occasion all the persons in possession of that property can be brought in under ,clause (f ), to be tried jointly. In a similar case of Saidoo etc. v. The Crown (PLD 1949 Lah 535), Kayani, J. held as follows :- "The petition has been admitted, however, on the ground of a con tention that the two petitioners could not have been tried jointly. It seems to me that the case is covered by section 239, cl. (f ), Criminal P. C. which says that persons accused of offences under sections 411 and 414, 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 cl. (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 transfers 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 interpretation of which cl. ( r) is susceptible is that if two persons have committed 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." I respectfully agree with the conclusion arrived at in the above judgment and hold that the joint trial of the two petitioners under section 411, P. P. C. was valid and lawful.

12. In view of the above discussion, I have come to the conclusion that the joint trial of the two petitioners was perfectly valid as the articles recovered from their custody are proved to have been stolen at on occasion. However, the two Courts below failed to note the serious discrepancies as noted above. In any case, the flaws cast a serious doubt at the prosecution version. I, therefore, giving them benefit of doubt, set aside the conviction and direct that the petitioners be released unless their further detention is authorised under any other order. As the petitioners did not claim the stolen property but it was identified by the complainant as his own, it shall be delivered to him. S. Q, Petition accepted.