2017 PLP 557 (MLD)

MALIK HAQ NAWAZ, J.

This criminal revision is directed against the judgment of the learned Sessions Judge Astore, whereby the conviction of petitioner/accused recorded by Judicial Magistrate under section 381-A has been maintained. The petitioner/accused was awarded 3 years R.I. under section 381-A by the trial Court.

2. According to the prosecution one Muhamad Sadiq son of Niamat Khan lodged FIR No. 01/2013 dated 25.7.13 with police station Rattu that on the night of 22.7.13 his tractor bearing Registration No. DMR-842 was stolen and after making hectic efforts to trace the whereabouts of tractor, he came to know that accused Abdur Rasheed son of Siffat Khan has stolen the said tractor. He further stated that he purchased the said tractor from the accused in consideration of Rs. 350,000/- and paid Rs.300,000/- while only the balance of Rs. 50,000/- was outstanding. The accused promised to hand over the registration book after payment of remaining amount. The transaction was witnessed by Shaban son of Dayem and Murtaza.

3. After registration of FIR, the local police arrested the accused and effected recovery of the tractor on 26.7.2013 and also prepared site plan of recovery and after completion of investigation, the challan of the case was submitted in the Court of learned Judicial Magistrate Astore.

4. On 28.4.14 the charge was framed and P.Ws. were called for evidence, which concluded on 16.9.15 and the case was posted for recording of statement of accused under section 342, Cr.P.C. and the statement of accused was recorded on 1.12.15 and the case was fixed for arguments on 7.3.16 and after hearing the arguments the learned Judicial Magistrate adjudged him guilty and awarded him 3 years R.I. and a fine of Rs. 10,000/- (rupees ten thousand only). The benefit of Section 382-B was also extended to the accused.

5. The accused filed an appeal under section 408, Cr.P.C. in the Court of learned Sessions Judge Astore, which met with the same fate, hence this revision petition under section 439, Cr.P.C. read with Section 561-A, Cr.P.C.

6. The learned counsel for the petitioner/accused submitted that FIR has been lodged with a considerable delay and a case of civil nature has been tuned into criminal litigation by the complainant with active connivance of the local police. The learned counsel further submitted that the statement of the accused under section 342, Cr.P.C., has not been properly recorded, which is sufficient to vitiate the whole proceedings. He further submitted that as per registration book, the said tractor bearing Registration No. DMR-842 is registered in the name of one Amirullah Khan son of Dilawar Khan, resident of Gorikot, who has not been examined by the Court nor he has been cited as prosecution witness and his evidence was essential for just decision of the case to ascertain the factual controversy.

7. On the other hand the learned Dy.A.G, supported the impugned judgment.

8. I have gone through the record that besides going into the other merits of the case, and the contentions raised at bar by both the parties, I am of the view that contention of the learned counsel for the petitioner/accused has force. The certification required to be made must be in accordance with subsection (2) of Section 364, Cr.P.C. In the case in hand, there is no certification and the learned trial Court as well as the first appellate Court did not bother to go through the mandatory provisions of Section 364(2), as non-compliance of the mandatory provisions is not a curable irregularity rather it is illegality not curable under section 537, Cr.P.C., vitiating the whole trial. The statement of the accused recorded under section 342, Cr.P.C., manifestly show that, there, exists not a single word as required under Section-364(2), Cr.P.C. This difficulty has been felt by the learned State counsel, who was unable to defend it on legal parameters. As evident from the evidence that the FIR was lodged on 25.7.13 and on 29.8.13 the complainant filed a civil suit in the Court of Civil Judge 1st class Rattu under Order XXXIX Rules 1 and 2 read with section 151, C.P.C., praying that accused/ petitioner be restrained to sale, pledge or use the tractor and a counter suit has also been filed against the present complainant for specific performance in the same Court, which are subjudice and awaiting fate. Now the question arises as to whether the retaking of possession by the accused/petitioner will constitute the offence of theft or not. In my humble view any property taken by mistake of facts or mistake of law does not constitute the offence of theft. Theft is defined in Section 378, P.P.C., which is reproduced as under:-- S.378..... Theft... Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking is said to commit theft.

9. The perusal of the judgments of both the Courts below shows that while rendering judgment and affirming the same, this aspect of the case went un-noticed, as held in ILR-52 CAL. 1015. "The accused thinking that certain property is his and he has the right to take the same until the payment of some balance or money due on him from the vendee, removes such property from the vendee, held, the accused is not guilty of theft."

10. The matter of title and specific performance are pending before the Court of competent jurisdiction and it would not be appropriate to comment on the same, I am only concerned with the present case and hold that removal of property on a bona fide claim of right, though unfounded in law and fact, does not constitute theft and whether the claim is bona fide or otherwise, will be based on the peculiar circumstances and facts, for which both the parties are at liberty to seek their remedy, if any before the Courts of law.

11. Before parting with judgment, I must observe that trial Courts are not conducting the trial with due care and caution. The manner of conducting the trial at times shows the casual manner of dealing with cases which is definitely unbecoming of a judicial officer and at the same time not conducive for effective dispensation of justice. The proceedings of trial Court, thus stood vitiated due to the non-compliance of mandatory provisions of law as mandated under section 364(2), Cr.P.C.

12. The remand of the case will further not only add to the agony of accused but also a source of accumulation of the case in trial Court. Therefore, keeping in view some other material contradiction, which have surface as record, I, acquit the accused from the charge by setting aside the judgments of both the Courts below. The accused be released forthwith if not required to be detained in any other case.

13. Under section 439(5), Cr.P.C., revision is barred, when an appeal is provided under, the code. The learned counsel has filed a revision petition instead of an appeal. The revision petition is converted into appeal and allowed, for the reasons mentioned in the judgment. HBT/42/GB Petition allowed.