1968 SC MR 281 (PLP)

FAZLE-AKBAR, J.-This appeal, by special leave, is directed against the judgment and order of a learned Single Judge of the High Court of East Pakistan, refusing to interfere in revision with the conviction of the appellants under section 379 of the Pakistan Penal Code. The appellants were tried and convicted under section 379, P. P. C. and sentenced to suffer rigorous imprisonment for three months each, by a Magistrate, 2nd Class, upon the allegation that they had, removed by force from the house of complainant Abdul Ali Mia, a cow and a calf, which he claimed to have purchased from his neighbour Abdur Rahman appellant. Their convictions and sentences were upheld, on appeal by the Additional Sessions Judge, Faridpur, and a revision petition filed by them in the High Court was also dismissed. The case of the complainant Abdul Ali Mia was that on 28-5-63, he purchased a cow and a calf from appellant Abdur Rahman for Rs. 130 and that on 1-6-63, at about 10 a. m., the four appellants along with two others forcibly took away the said cow and calf from the halot attached to his house in spite of his protests. The defence of the appellants was that appellant Abdur Rahman lodged an information at the Police Station Nagarkanda 4t 5 p. in. on 1-6-63 that Habibur Rahman, a brother-in-law of the complainant Abdul Ali Mia, had stolen his cow and calf and the Police on the same day at 6 p. m. recovered them from the gura of the complainant. As both the parties claimed the cow and the calf, the Officer-in-Charge of Nagarkanda Police Station kept the same in the custody of one, Abdul Motaleb. Hence, it was contended that this case was a counterblast to their case. The complainant, in support of his case, examined besides himself, five other witnesses, namely, Rokonuddin (P. W. 2), his uncle-in-law, his cousin Naser Mollah (P. W. 3), Abdur Razzaque, his younger brother (P. W. 4), Shaikh Awal (P. W. 5), brother of 1 appellant Abdur Rahman and Basher Shaikh (P. W. 6), uncle of the said appellant. It may be mentioned that the alleged sale of the cow and calf by Abdur Rahman, was not evidenced by any receipt. The prosecution witnesses substantially supported the complainant's story. The defence examined S. C. Dev. Roy, D. W. 1, A. S. I. of Police attached to Kagarkanda Police Station. He proved G. D. entries, to show that theft of a cow and a calf was reported by Abdur Rahman appellant at 5 p. m. on 1-6-63 and that he and two Constables Nurul Haq and Karamat, were deputed by the Officer-in-Charge of the Police Station to search for the said cattle. He further stated that they recovered the cattle from the gura of Abdul Ali Mia of Junagardi and then took them to the Officer-in-Charge at about 6 p.m. and the latter gave them in custody of Abdul Motaleb Mia of Junagardi. Chand Ullah Chaukidar, D. W. 2 has substantially corroborated the evidence of the A. S. I. The Magistrate, however, relying on the evidence of the prosecution witnesses, convicted and sentenced all the accused as stated above. The convicts then appealed to the Sessions Judge. The Additional Sessions Judge who heard the appeal examined the Officer-in-Charge of Nagarkanda Police Station as a Court witness. He also supported the defence version. Curiously enough, the A dditional Sessions Judge without giving any reason discarded the evidence of the Court witness as well as of the defence witnesses. He, therefore, relying on the evidence of the prosecution witnesses maintained the convictions and sentences of the appellants. The learned Single Judge of the High Court in a very summary manner disposed of the revision petition. There is nothing to show that he applied his mind to the evidence, facts and circumstances of the case. He also did not consider whether the case as presented in details and the supporting evidence, had been fully and fairly appreciated by the Courts below or that their conclusions bad been reached in accordance with the basic A principles governing the formation of a verdict against the accused persons. It was contended before him that the Courts below had arrived at their conclusions without considering the evidence of the Court and defence witnesses. Hence, in order to do full and complete justice it was his duty to weigh the facts as disclosed in the evidence with great care. Unfortunately, this was not done. We have, therefore, found it necessary to re examine the evidence. In this case, the evidence of the prosecution witnesses is at variance with the evidence of A. S. I. and Officer-in-Charge of the Police Station on the crucial point, namely, as to the time and place of recovery of the stolen cattle. According to the proseeution, the stolen cow and calf were recovered from the house cf the appellant Abdur Rahman and they were then given in the custody of the complainant's khalu Altaf. On the other hand, the dfence version is that on. Abdur Rahman's lodging a report at the Police Station the Police recovered the cow and the calf from the complainant's house at about 6 p.m. on 1-6-63 and then they were kept in custody of Abdul Motaleb Mia. This defence version finds support from the evidence of S. C. Dcv. Roy, A. S. I. of Police and Muhammad Ali, Officer-in-Charge of the Police Station. The Officer-in-Charge has further stated that in the search warrant issued by the Court there was a direction to seize the cow and the calf from the house of Abdul Motaleb. Hence, under his direction Abdul Motaleb produced them at the Police Station and he then gave them "in the jimma of Altaf.' It may be mentioned that the search warrant Exit. D. dated 5-6-63 clearly directs the Police to search the house of Motaleb and to seize the stolen cattle. This totally belies the story of recovery of the cattle from the house of Abdur R ahman. On the contrary, it supports, to some extent, the defence version. Furthermore, no good reasons have been suggested for discarding the evidence of the Police Officers. Their evidence of recovery of the cow and the calf from the complainant's house at about 6 p.m. on 1-6-63 totally demolishes the complainant's story of theft of the said cow and calf at 10 a.m. on 1-6-63. Another reason for strong suspicion as regards story of the alleged theft is furnished by the fact that though the alleged theft took place at 10 a.m. it was not reported to the Police Station which was only half a mile from the complainant's house. He filed his petition of complaint on 4-6-63 at Faridpur and thereafter search warrant was issued on 5-6-63. In view of the above facts and circumstances, the conclusion reached by the Courts below regarding the credibility of the evidence led by the prosecution cannot be sustained. We are, therefore, of the opinion that the prosecution has failed to bring home the charge to the appellants beyond reasonable doubt. We accordingly allow this appeal, set aside the convictions and sentences of the appellant and direct that they may be discharged from their bail bonds. Appeal accepted.