P (PLP)

Where the case against an accused person is based on circum stantial evidence, his examination must be very thorough in order to afford him all possible opportunity ‑ to explain the charge and the circumstances of the case against him. The exami nation is also intended to assist the Court in arriving at the truth. (e) Criminal Procedure Code (V of 1898), Ss. 360 and 537

Failure to read out evidence to witness‑Curable. Non‑compliance with the provisions of section 360, Criminal Procedure Code, is an irregularity which is curable under section 537, Criminal Procedure Code provided there has not been a failure of justice. Omission to follow the requirements of section 360, Criminal Procedure Code, is an irregularity which would not attract the revisional powers of the High Court, unless it is shown that the accused was prejudiced in his trial by this omission on the part of the Trial Magistrate. Sh. Manzoor Ahmed, for Petitioner. Public Prosecutor, for Crown. ORDER.‑This is a petition for revision under the, provisions of section 439, Criminal Procedure Code, against the judgment of the Sessions judge in Baluchistan, dated 15th July 1950, whereby he upheld the conviction of the petitioner who had been sentenced to six months' rigorous imprisonment by the Treasury Officer and Magistrate, First Class, Quetta, under section 411, Pakistan Penal Code. Before I examine this case on its merits, it is first necessary once more to reiterate that while the powers of this Court under section 439, Criminal Procedure Code, are entirely discretionary, it would be unusual for this Court to interfere in a finding of fact, particularly in a case where two subordinate Courts have come to concurrent findings, unless the proceedings were clearly perverse or some grave irregularity resulting in miscarriage of justice or a misapplication of the law governing the case had taken place. It will, therefore, be necessary for me to examine this case carefully to see if there are any grounds for me to interfere. The brief facts of the case are that on 10th September 1949, the complainant Khudai Nazar lodged a First Information Report alleging that cash and some clothes had been stolen from his house. Certain of these clothes were ultimately identified as belonging to the complainant and were recovered from one Muhammad Hanif, Kabari, on 13th September 1950. Muhammad Hanif gave information to the Police which duly led to the arrest of the petitioner who was accordingly challaned. The evidence indicates that the complainant has identified his clothes and there is little or no defence in this case which can be con sidered as valuable to the petitioner. The defence is based on an attempted alibi, but it must be clear that evidence to the effect that he did not leave the Loco‑Shed where he was em ployed by the Railway from the 10th to the 13th September 1949 is of little value. It by no means proves that he was not absent for a, short period at the time he is alleged to have sold the,' clothes to Muhammad Hanif. I have heard learned counsel fox the petitioner as well as the Public Prosecutor and I have also perused the records of the case as well as the judgment in appeal by the Sessions Judge. The main ground for appeal, which I propose : to exa mine carefully, relates to the essential requirements of section 411, Pakistan Penal Code. It has been argued before me that this section has two ingredients, namely that the prosecution must prove dishonest receipt and retention of stolen property and must also prove that this was done with the knowledge that the property in question was stolen. I reproduce below the wording of section 411, Pakistan Penal Code:‑

"Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either des cription for a term which may extend to three years, or with fine, or with both." It would appear that the wording of this section is designed to cover the case of a dishonest receiver of stolen property. It cannot, or should not be used against persons in possession of stolen property, unless the possessor has guilty knowledge at the time he becomes the possessor, or eyen subsequently, that the property was stolen. Circumstances may be suspicious, but the onus of proving guilty knowledge cannot be taken away from the prosecution. Under this section, it has been frequently held that the word 'believe' appearing in this section is of very much 'stronger application than the word 'suspect'. However great the sus picions of a man may be that the property of which he has b3come the possessor may have been stolen property, this in itself would be insufficient to fulfil the two ingredients required under section 411, Pakistan Penal Code. The word 'believe' must be interpreted as meaning belief which would come to a man of reasonable mind. In support of his arguments, learned counsel for the petitioner has drawn my attention to A. I. R.. 1935 Oudh p. 327, in which it was held that .a reasonable man must have felt convinced in his mind that the property, with which he was dealing was stolen property and that it would not be sufficient in such a case to show that the accused person was careless or that he has' reason to suspect that the property was stolen or that he did not make sufficient inquiries to ascertain whether it had been dishonestly acquired. On the basis of the views held in this case, the appeal was allowed and the appellant acquitted. I am in full agreement with the views expressed and it is, therefore, necessary for me to see whether all the circumstances of this case would show whether a conviction under section 411, Pakistan Penal Code, is sustainable or not. Against this argument the learned Public Prosecutor has re lied mainly on the presumption permitted by section 114, Illus tration (a) of the Evidence Act which lays down that possession of stolen property recently after the theft raises a prima facie presumption that the possessor was either the thief, or was the re ceiver of the stolen property knowing it to be stolen, unless he can account for possession. In the case before me I am satisfied that there is proof of the fact that the property in question was stolen, for it has been identified by its previous owner. In reply to the argument adduced by the learned Public Prosecutor, counsel for the petitioner contends that the, presumption tinder the Evidence Act does not shift the onus of proving the ingre dients of an offence under section 411,. Pakistan Penal Code, from the prosecution to the accused and quotes in support of his arguments A. I. R. 1933 All. p. 893, A. I. R. 1935 Oudh p. 327 and A. I. R. 1935 Pat. p.

451. I am inclined to ac cept this argument, for it would not be in the interests of justice for the prosecution to make a presumption in its favour, unless it were able by other means to prove the essential ingre dients of the section under which an accused was being tried. As I have already stated, there are two separate and distinct ingredients of this section, but the evidence on record does not disclose anything to the effect that the petitioner either knew or had reason to believe that the property of which he became the possessor was stolen property. I have examined the statement of the accused (petitioner) in the Court of the trial Magistrate. He does not attempt to explain why he was in possession of the property which was ultimately found to be stolen. He merely denies that lie ever sold the clothes. I would emphasise that, as provided by section 342, Criminal Procedure Code, it is the duty of a Magistrate to put questions to an accused person in regard to all aspects of the case against him so that he will have full opportunity of offering an explanation of the evidence adduced against him. In this particular case the Magistrate merely asked two questions, firstly whether the accused (peti tioner) sold the clothes in question to Muhammad Hanif, P. W. 1, and secondly, whether he had any more to say. In answer to the first question the petitioner replied in the negative; while, in answer to the second question, he explained that he was on duty in the Railway. He was not, therefore, given sufficient oppor tunity to explain .in full detail about the charge against him. Had this been done, it might have been easier for the Magis trate to reach a more definite conclusion as to the truth of the case. There has been no attempt on behalf of the prosecution to prove that the petitioner was responsible for the theft in ques tion; and indeed, he was only charged with an offence under section 411, Pakistan Penal Code of which he was subsequently convicted. . In dealing, therefore, with this section alone, I find that there is a very grave element of doubt in this case because the prosecution have not only failed to lead evidence as to the guilty knowledge of the petitioner regarding the stolen property, but they have equally failed to prove what is an essential part of the offence falling under section 411, Pakistan Penal Code. While Illustration (a) to section 114, Evidence Act, may be of use in certain circumstances, the person accused must, I con sider be given full opportunity to account for his possession when he is examined in the trial Court. I agree with learned counsel for the petitioner that the onus of proof in a case of this nature cannot shift from the prosecu tion to the accused and that it is not necessary for art accused person to prove affirmatively that he came by the goods innocently. It has been held, that if he can give explanation which might raise doubt in the mind of the Court as to his guilt he will be entitled to the benefit of the doubt. In the case before me, the petitioner in' his examination has simply denied possession by stating that he never sold the goods to Muhammad Hanif. If I am to believe the prosecution evidence, this statement will not be the truth ; but I feel the Magistrate erred gravely in not questioning the petitioner further. It was essential that he should have been given every opportunity to explain after having heard the prosecution evidence against him. If, in answer to further questions as to possession, which might have been put to him, he still refused to furnish an explanation, a presumption as to his guilt might have been raised against him under section 114, Evidence Act. It has, however, been held that possession of stolen property, even if accompanied by a failure to give an account as to how such possession was acquired, or by a false account, or by accounts which are contradictory, would raise not a violent or strong presumption, but a probable presumption merely. The petitioners cursory examination clearly gave him no opportunity to 'explain and I feel that he‑may have been prejudiced in his trial. In hearing the appeal the Sessions judge does not appear to have taken into consideration, the very scanty examination of the accused (petitioner) or the fact that there is no proof about the petitioner's knowledge that the property was stolen. He has, however, made mention of the fact that the Magistrate, while convicting the petitioner, has mentioned that he was previously convicted in the year 1948, though acquitted on appeal. The Sessions judge has come to the conclusion, that the trial Magistrate was not prejudiced when sentencing the petitioner in the case before him but states that mention of a previous trial was irrelevant. I am inclined to think that a reference to a previous trial recorded in the judgment of the Magistrate, who sentenced the petitioner, must have had some effect in influencing him as otherwise there would be little object in making mention of this previous case. To sum up, therefore, I can come to only one conclusion in this case, that the prosecution have failed to establish the fact that the petitioner was in possession of the goods knowing them to be stolen property, or having reason to believe that they were stolen. Even if I were to hold that a presumption as to his guilt has been raised, it would amount to no more than a probability upon which a conviction could not be based in the absence of proof about guilty knowledge of possession. Secondly, there is a strong presumption that the Magistrate, by making mention on the previous trial of the petitioner though it ended in acquittal; was influenced in sentencing him. Finally, .the failure of the Magistrate to examine the accused (petitioner) fully as required by section 342, Criminal Procedure Code, though an irregularity curable by section 537, Criminal Procedure Code, has prejudices the case for the accused. It has been held that where the case against an accused person' is based on circumstantial evidence, his examination must be very thorough in order to afford him all possible opportunity to explain the charge and the circumstances of the case against him. The examination is also intended to assist the Court in arriving at the truth. Accordingly I accept the petition for revision and set aside the conviction and the sentence passed, and direct that the petitioner shall be set at liberty immediately. One other ground on which this petition has been lodged before me is that the evidence of the witnesses was not read out to them and that failure to do so would vitiate the proceedings. As has already been held by this Court non‑compliance with the provisions of section 360, Criminal Procedure Code is an irregularity which is curable under section 537, Criminal Procedure Code provided there has not been a failure of justice. In accept ing the present petition I do so for the reasons stated above, while once more holding that omission to follow the requirements of section 360, Criminal Procedure Code is an irregularity which would not attract the revisional powers of this Court, unless it is shown that the accused was prejudiced in his trial by the, omission on the part of the trial Magistrate. A. H. Petition accepted.