P L D 1966 Dacca 552 (PLP)

The learned Additional Sessions Judge expressed himself in the following terms: "The judgment of the learned Magistrate is burdened with a serious legal defect and it is this that there is no finding in the body of‑the judgment that the accused persons took away the paddy with dishonest intention." This statement of the learned Additional Sessions Judge is not borne out by the record. The learned Magistrate has, in fact, recorded a clear finding to the effect that the paddy was grown by the complainant in his land and the accused persons cut and took away the same with an intention of causing wrongful loss to the complainant and wrongful gain to themselves. This is certainly imputing what is called dishonest intention. While dealing with this question, the learned Magistrate clearly recorded a finding in the following terms: "It is clear from the discussion made above that P. W. 1 is in possession of the land. He grew the paddy and all the accused persons reaped away paddy from the land of P. W. 1 without the consent with intent to cause wrongful gain to themselves to the extent of Its. 200." The finding of the learned Magistrate quoted above will clearly show that it is not correct to say that the Magistrate did not record a finding of the requisite intention. The point made by the learned Additional Sessions Judge in this behalf has, therefore, no substance. Even if there would have been no clear finding of dishonest intention, there could be no ground for interfering with the impugned order of conviction, inasmuch as, the Magistrate has recorded a finding to the effect that the paddy was grown by the complainant, in his land and that the accused persons reaped away the same. In the presence of these two findings, the irresistible conclusion would be that the accused had dishonest intention in doing so. In a similar situation our Supreme Court in the case of Alep Khan v. Mastan Khan and others, in Criminal Appeal No. 2‑D of 1961, decided on February 5, 1962, observed as follows: "Now intention can only be judged by the circumstances of a case and no positive evidence is possible to prove what was passing in the minds of the accused persons at the time of the commission of the act in question. The word "dishonestly" is defined in section 24 of the Pakistan Penal Code as follows: "Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing `dishonestly' ." "Here, it is clear that the intention of the accused persons was to appropriate the paddy which belonged to the complainant who had sown the crop, and on the facts, therefore, the intention must be imputed to the respondents of causing wrongful gain to themselves and of wrongful loss to the complainant. The act was, consequently, clearly dishonest in nature and all the ingredients of the theft were, therefore, satisfied in this case. In the circumstances, in our opinion, the most appropriate order to be passed in this case would be to allow this appeal, set aside the orders passed by the Courts of appeal and revision and to restore that of the original Court. We order accordingly." In that case it appears that the trial Court recorded a finding to the effect that crop in question was grown by the complainant in the land in his possession and reaped away by the accused persons but there was no clear finding of dishonest intention. The learned Additional Sessions Judge who heard the appeal, set aside the order of the learned Magistrate for want of such a finding. The High Court refused to interfere with the order of acquittal made by the learned Additional Sessions Judge. The Supreme Court, however, reached the conclusion on the facts found that the dishonest intention must in those circumstances be imputed to the accused persons. In this case even if there would have been no finding of dishonest intention, the conviction would still be maintained on the authority of the Supreme Court in the case cited above. Next point raised in this reference is that there is no evidence to the effect that Bazlar Rahman one of the accused persons took part in the commission of offence of theft. This is again contrary to the record. It is in the evidence of P. W. 1 Surja Kumar Mali that accused Bazal has got land to the contiguous south of this land and he created trouble. "It is further in his evidence that the complainant obtained a permanent injunction against the accused Bazal and when a notice was served on him the paddy was taken away before the date of hearing". Further the witness has clearly stated that the other accused reaped away paddy under order of accused Bazal and they were his relations. It is indeed surprising that even then the learned Judge has stated that there was no evidence against Bazlar Rahman. P. W. 4 also said that all the accused were reaping the paddy P. W. 5 Gogendre Mali stated "all the accused person named and identified and accused Abdul Hoque and Kalam Bakshu represent ed by lawyer reaped away ripe paddy from 1 kani of complainant's land in spite of protest by P. W. 1:" Bazlar Rahman being accused in the case, P. Ws. 4 and 5 did not implicate him with the offence when they said that all the accused persons reaped away the paddy. This point is also of no substance. In the result, the reference is rejected. The convictions and sentences of the accused persons are maintained. S. Q. Reference rejected.