P L D 1962 Dacca 261 (PLP)

2 In the night following the 18th day of June, 1959 there was a theft in the house of P. W. 1 Kasiruddin Pramanik and the movables stolen included documents and utensils as well as some cash. Early next morning the three petitioners were found loitering near a jute field and also going in and coming out of the same in a suspicious manner. Some of the local people including some P. Ws. examined in the case thereupon went inside the jute field and noticed two spots which appeared to have been dug up and filled in recently. In one of those spots some papers were also noticed jutting out. Two of the aforesaid loiterers were apprehended and information seat to the police. Police thereafter came there, arrested the said two persons and dug up the articles concealed in the above‑mentioned spots While in custody the two arrested persons, i.e., the petitioners Nos. 2 and 3, made some statements and also led the police to a ditch and there one of them produced from inside a bush some utensils. Later the complainant claimed and identified all those articles as belonging to him and having been stolen from his house. In course of investigation the A. S. I. was also led to the house of the petitioner No. 1 by one of his brothers and one brass‑pitcher was recovered and seized from there as well. The complainant identified this pitcher also as one of the articles stolen from his house. In due course the three petitioners were placed on their trial on the above allegations. Three separate charges were framed under section 411 of the Pakistan Penal Code, one against them all relating to the articles recovered from the jute field, another against the petitioners Nos. 2 and 3 with respect to the articles recovered from the ditch and the third against the petitioner No. 1 for the brass‑pitcher recovered from his house. Ultimately, the learned trial Magistrate, on a consideration of the evidence on the record, convicted all the three petitioners of the respective charges against them. They were accordingly sentenced to rigorous imprisonment for 18 months each. Against the aforesaid convictions and sentences of the accused‑petitioners there was an appeal before the learned Sessions Judge. So far as the separate charge against petitioner No. 1 in relation to the brass‑pitcher is concerned he held that it had not been proved. He, however, upheld the conviction of the petitioners on the other two counts and accordingly dismissed the appeal with a modifica tion with regard to their sentence by reducing the same to rigorous imprisonment for 9 months each. It is in these circumstances that the petitioners approached this Court in the exercise of its criminal revisional jurisdiction and obtained the present Rule.

3. Mr. A. M. Sayem, Advocate, has appeared on behalf of the accused‑petitioners, As regards the conviction of the three accused‑petitioners with respect to the charge relating to the articles recovered from the jute field, all the evidence on the record is that early in the morning following the night of the theft in the house of the complainant these petitioners were noticed loitering near the jute field in question and also seen going in and coming out of the same. The only other piece of evidence in this behalf is that the local P. Ws. concerned found inside the jute field two spots having been recently dug up and filled in. There is thus no direct evidence to show that the petitioners were concerned in the theft that took place in the house of the complainant or that they had either concealed or were even guarding the articles in question there. The proximity of time between the theft and the recovery might no doubt lead to such a presumption, one way or the other provided the possession of the said articles could be fastened upon them beyond reason able doubt, to which end, however, the facts and circumstances on the record appear to be manifestly inadequate. As. already indicated above, the evidence against them is wholly circumstantial i.e., that they were noticed loitering in a suspicious manner and going in ant coming out of the jute field but is this such a conclusive circumstance as may lead to no hypothesis other than their guilt i.e., that they and none else who must have had con cealed the articles in question or that they were there for no other purpose then that of guarding the sane? Is it inconceiv able or can such a possibility be dogmatically ruled out that at worst they night have noticed others concealing certain articles there and were on the look‑out to help themselves thereto ? In such an event, too, their movement might naturally enough be such as to arouse suspicion. In this connection reference may be made to the case of Das Ram Gehla Ram v. Emperor (A I R 1941 Lah. 471) according to which even person pointing out a place where property is concealed cannot by reason thereof alone be regarded as being responsible for retention of that property or party to its concealment. Thus it has been laid down. "The mere fact that a person points out, a place where property is concealed, if that place is not his own, does not justify the Court in drawing the conclusion that the person who pointed out the article had retained it, nor does the mere knowledge of the place of concealment necessarily lead to the conclusion that the person having such knowledge participated in the act of concealment."

4. Evidently the fact of mere presence or movement near about the place where the property is concealed, even if prone to attract notice or arouse suspicion car, he far less justified an .4 inference that the person concerned must have either retained the property or participated in the act of its concealment. The fact teat some other article; stolen in course of the same theft also were subsequently recovered pursuant to certain statement made by two of these petitioners, could, in the circumstances of the case be drawn upon in order to support an inference regarding their possession of these articles, i.e., those recovered from the jute field as well, but the evidence in that behalf as well shall presently see is inadmissible. Thus the only piece of evidence legally available on the record in relation to the charge under consideration is the fact of suspicious movements, mentioned above, but that, as already made clear, can hardly be regarded as sufficient to make out, in a convincing manner that the accused- petitioners were responsible for the concealment of the articles in question or for the matter of that had had even any knowledge of the fact that those articles had had been concealed there. This is at most a circumstance, which may raise a suspicion but can by no means be accepted as legal proof establishing conclusively the factum of their possession of the articles in question. So the finding that the petitioners were in possession of, i.e., retained, those articles does not appear to be legally justified and as such their conviction on this scope cannot be supported.

5. Let me now turn to the charge relating to the articles recovered from the ditch. In this behalf prosecution led evidence to show on their arrest, both the petitioners Nos. 2 and 3 made certain statements and thereafter led the police to a ditch and there one of them i.e., the petitioner No. 2 Chan Son, produced from inside a bush some articles, which the complainant later identified as belonging to him and having been stolen from his house in course of the theft in question. The learned Advocate appearing on behalf of the petitioners has argued that his evidence led by the prosecution of a joint statement made by the two petitioners, in pursuance of which the recovery was made, is inadmissible and has in this behalf placed his reliance upon the case of Durlav Namasudra and others v. Emperor (36 C W N 373), wherein it has been held: " When statements to the same effect, leading to the discovery of a fact, are made by a number of persons in the custody of police officer, only so much of the statement of the first person making such a statement as relates distinctly to the fact dis covered, is admissible in evidence against him: the statements of the other persons are not admissible at all." He has also relied upon the cases of Ashaq Hussain v. The Crown (P L D 1950 Lah. 147) and Faqira and others v. Emperor (30 Cr. L J 639). In the last mentioned case the relevant principle has been enunciated as follows: ‑ "It has been frequently pointed out by this Court that these joint discoveries are not admissible at all against any of the accused unless it can be shown who first made the discovery. If section 27 is to be used then since the information has been supplied by the first person to the police subsequent pieces of information are not informations leading to any discovery." 7. (sic) In the present case before me there is nothing on the record at all to indicate which of the two petitioners made the first discovery. That being so the said evidence, as led and brought on the record, is not legally available or useable against any of the petitioners at all. Again the mere fact that one of them actually brought out the things from the place where the same had been concealed also cannot warrant an inference that he must have been responsible for concealing those articles there for the simple reason that the possibility of the other petitioner alone having been so responsible, and of the former having made the production pursuant to the discovery, i.e., the statement, made by the latter can by no means be ruled out. In the circumstances this charge, too, can not be regarded as established beyond reasonable doubt. In other words the finding to the contrary arrived at by the learned Courts below does not appear to be legally justified by the evidence on record.

8. For the reasons stated above the convictions of the petitioners cannot be sustained.

9. In the result, the Rule is made absolute. The convictions and sentences of the accused‑petitioners are set aside and they are acquitted of the respective charges against them and discharged from their bail. S. B Convictions set aside.