P L D 1965 Dacca 315 (PLP)

The case of the opposite‑party No. 1 is that he was never appointed a contractor by Messrs Allen Berry & Co. Ltd. for excavating the pipes between Darsana‑Mogalhat via Parbatipur, but that he was the owner of these pipes by virtue of his purchase from Messrs Allen Berry & Co. (India) Ltd. in 1959. He admitted that he described himself as authorised agent of Messrs Allen Berry & Co. Ltd. in the agreement that he made with the sub contractors; but has given an explanation for it as to why he had to describe himself as agent of Messrs Allen Berry & Co. Ltd. His case is that although he purchased these pipes from A. C. Abdur Rahim he could not excavate those unless he described himself as agent of Messrs Allen Berry & Co. Ltd. because the pipes run through the railway hands and the railway authorities would not allow anybody other than an agent of Messrs Allen Berry & Co. Ltd. (of India), the original purchasers of the pipes, to excavate the same. He has quoted in his affidavit‑in‑opposition, a letter addressed "To whom it may concern" said to have been signed by A. C. Abdur Rahim, Director of Allen Berry & Co. (Private) Ltd., dated 30th October 1959, in support of his contention that he had to describe himself as agent of Messrs Allen Berry & Co. (Private) Ltd. for excavating the pipes within the railway lands. This letter is in the following terms: "'To whom it may concern. We have sold entire balance of unexcavated pipeline (6n) between Rajbari to Bhawanipur in the Broad‑Gauge Railway line and from Kolahati to Sonahat via Mogulhat in the Meter- Gauge Railway line to Moulvi Nooruddin Mia and he or his agent also (is) empowered to excavate the said pipeline as authorised Agent of Messrs Allen Berry & Co. Ltd., Dacca, if he gets any difficulty to get permission from the authority concerned m his own name. for Allen Berry & Co. (Private) Ltd. Sd. A. C. A. Rahim. Director." The opposite‑party No. 1 further denied to have stolen any pipe belonging to the petitioner or his firm and claimed that he was the owner of these pipes. He described the G. D. Entry made by the petitioner's men as false and also stated that no action under the G. D. Entry was taken by the Police. He denied the existence of any letter appointing him as contractor by Messrs Allen Berry & Co. Ltd. and described existence of any such letter as fraudulent and fictitious. With regard to the civil suit, it was stated by the opposite‑party No. 1 that it was not a title suit nor does it cover the pipes involved in the criminal cases and this has therefore no bearing on the two criminal cases filed against the petitioner. He further stated that A. C. A. Rahim who is the Resident Director of Messrs Allen Berry & Co. Ltd. in collusion with Messrs Ahmed Abdul Gani and the petitioner executed a sale‑deed in favour of Messrs Ahmed Abdul Gani for the unexcavated pipes after Allen Berry & Co.' Ltd. had already sold the said pipes to the complainant‑opposite‑party No.

1. He has generally denied the other allegations made by the petitioner, to which we need not advert in details. The petitioner in reply to opposite‑party No. 1's affidavits‑in‑opposition has filed an affidavit in which he has reiterated the statements made in his petitions and denied some of the allegations that have been brought in by opposite- party No. 1 in his affidavits‑in‑opposition. Upon the facts stated above, the question that has been raised before us for our consideration by the learned Advocates for the contending parties is as to whether the petitioner can be said to have committed an offence under section 378 of the Pakistan Penal Code if he has removed the pipes from Santahar and Parbatipur Railway Stations to Tejgaon in Dacca without the consent or knowledge of opposite‑party No. 1 who also claims to be the owner of the pipes. Mr. Hamid ul Haq Chaudhry, the learned Advocate for the petitioner, contended that upon the evidence disclosed in the affidavits it is clear that the petitioner is the owner of the pipes in question in regard to which the criminal cases have been brought against his client (petitioner) by opposite‑party No. 1 under section 379 of the Pakistan Penal Code. He also submitted that opposite‑party No. 1 was none but a contractor under Messrs Allen Berry & Co., Ltd. who were the agents of Messrs Ahmed Abdul Gani for excavating the pipes and that the said opposite‑party No. 1 having described himself as agent of Messrs Allen Berry & Co. Ltd. in the agreement that he entered into with his sub‑contractors, a fact which the opposite‑party No. 1 does not deny but wants to explain away by futile explanations, has not been able to establish his ownership to the pipes in question. Above all, Mr. Chaudhry submitted that in a case under section 379 of the Pakistan Penal Code the paramount question that is to be considered is the question of dishonest intention. In the present case, the petitioner, who claims to be owner of the pipes by purchase from A. C. Abdur Rahim, had a bona fide right to the pipes and if he has at all removed the pipes from Santahar and Parbatipur he has not certainly committed any offence under section 379 of the Pakistan Penal Code. Mr. Chaudhry then contended that if even the opposite‑party No. 1 puts up a false claim of ownership, it is nothing but a rival claim of ownership of the goods as against the claim of the petitioner and as such there cannot be any question of commission of theft by the petitioner in those circumstances. Mr. Chaudhry's further contention is that the claim of the petitioner is not colourable one but is based on materials which have been disclosed by the affidavits in this case. Mr. Chaudhry has attacked the claim of opposite‑party No. 1 of ownership of the pipes by purchase from Messrs Allen Berry & Co. (Private) Ltd. to be no purchase at all since, according to Mr. Chaudhry, Messrs Allen Berry & Co. (Private) Ltd. which is an Indian concern ceased to function in Pakistan from the 31st of December 1958, and Messrs Allen Berry & to. Ltd. was incorporated as a Pakistani Company afresh on the 18th of May 1959, with all the assets of Messrs Allen Berry & Co. (Private) Ltd. which the Pakistani Company purchased, there could not be any sale on the 30th of October 1959, of any asset of Messrs Allen Berry & Co. (Private) Ltd. by any one to any other person. Mr. Pal, the learned Advocate for opposite‑party No. 1, on the other hand, contended that the letter disclosed in the affidavit‑in‑opposition of his client said to have been signed by A. C. Abdur Rahim on behalf of Messrs Allen Berry & Co. (Private) Ltd. goes to show that his client, opposite party No. 1 K. M. Ashraf was a bona fide title holder of the pipes by virtue of his purchase on the 7th of August 1959, and 9th of October 1959, and therefore the removal of the pipes without the consent of his client from his possession would constitute the offence of theft and the petitioner having so removed the pipes from the possession of opposite‑party No. 1 without his consent and with dishonest intention, committed the said offence of theft. Mr. Pal has produced before us a photostat copy of a certified copy of statement of transhipment of 6" diameter pipes from Santahar and Parbatipur to Tejgaon to show that the petitioner did, in fact, remove the pipes which belonged to his client, the opposite -party No.

1. From this photostat copy of the certified copy of the statement on which Mr. Pal relies, although he did not annex it with the affidavit‑in‑opposition, but (which we have put on record) it is found that nowhere the name of the opposite‑party No. 1 is shown as either consignor of the goods. Name of the consignor is shown to be different at different times but the name of the consignee is the same, Sattar Ahmed. But the goods were, in fact, received by person authorised by Sattar Ahmed, the consignee. The name of the petitioner before us is Abdul Aziz Sattar, alias Abdul Aziz Abdul Sattar and this document on which Mr. Pal relies upon to show removal of the goods by the petitioner does not connect him in any way with the removal of the goods as far as this document is concerned. Mr. Pal argued his case more or less abstractly with regard to the elements of theft and the interpretation of section 378 of the Pakistan Penal Code. He, for the purpose relied on a Full Bench decision of the Calcutta High Court in the case of Queen Empress v. Sri Churn Chungo (I L R 22 Cal. 1017). Facts of that case were that one K borrowed a sum of Rs. 5 from H and the debt increased with interest to Rs. 11‑8‑

0. K died leaving behind his wife, a bullock and a buffalo. The widow of K went to live with her brother KP and this brother KP used to cultivate others land as he was a very poor man with the aid of the bullock and buffalo that belonged to his sister, widow of K. One day when KP went out to plough the land of M on hire, the servants of H, the creditor, came and forcibly took away the buffalo and bullock to the kutchery of H. H detained the bullock and said that he would not release it until the debt due from K was paid. The learned Sessions Judge of Nadia referred the case to the High Court on the point that in terms of the decision of the Calcutta High Court id the case of Prosonno Kumar Datta v. Udoy Sant, the accused claimed that there could not be any theft on the part of H for having detained the bullock in view of the fact that he was a creditor of K and against whose debt he had detained the bullock. The matter was heard by a Full Bench of 5 Judges, and the Court upon a consideration of sections 23, 24 and 378 of the Penal Code, which are the same as ours, came to the conclusion that H was guilty of theft as he had no bona fide claim of right to the bullock. One of the learned Judges, Banerjee, analysed the constituting elements of section 378 of the Penal Code to be as follows: "(1) There must be an intention to take some movable property, (2) The intended taking must be dishonest, (3) It must be from the possession of another person without his consent, and (4) There must be a moving of the property in order to such taking." The 3rd and 4th requirements being satisfied, the learned Judge went on considering the 1st and 2nd requirement as laid down by him. In doing so, he observed as follows: "It remains now to consider whether the taking in this case was a dishonest taking according to the definition of `dishonestly' in section 24, that is to say, whether the taking was `with the intention of causing wrongful gain to one person or wrongful loss to another.' I think the question must be answered in the affirmative, as the creditor in taking and detaining the animals intended to cause both wrongful gain to himself and wrongful loss to the debtor within the meaning of section 23; for he retained, by unlawful means, property to which he was not legally entitled, and he unlawfully kept his debtor, who was legally entitled to the property, out of possession and enjoyment of the same." In this case, therefore, the learned Judges defined what constitutes theft under section 378 of the Penal Code. The facts in that case are not similar or same with the facts of the cases before us. In that case H had no bona fide claim of right either to the bullock or to the buffalo. But in the present case, the petitioner had a bona fide claim of right to the pipes and this claim of the petitioner was not a colourable one. We therefore, although do not differ with the principles as laid down in the Calcutta case with regard to the elements of theft, cannot persuade ourselves to agree that this decision covers a case of the nature as is under our consideration at the present moment. In the present case, the petitioner claims a bona fide title to the pipes, whereas the opposite- party No. 1 has raised a rival claim to those. We shall not go into the question of title nor the criminal Court before whom the criminal cases are pending shall have the right to go into the question of title of the goods, but we shall decide the case only to the extent as to whether, in the facts and circumstances of the case, it can be said to be a case to be tried under section 379 of the Pakistan Penal Code as far as the petitioner before us is concerned. It is a settled law now that removal of property on a bona fide claim of right, though] unfounded in law and fact, does not constitute theft, but such a claim must not be a colourable one. Whether the claim is a', bona fide one or not has to be determined upon the facts and circumstances of each case. In the present case, as we haves already seen, upon the affidavits of the parties it is clear that the petitioner raised a bona fide claim of right which cannot, in the facts and circumstances of the case, be said to be a colourable one. If any authority is needed on the point, we may presently cite a Division Bench decision of the Calcutta High Court in the case of Arfan Ali v. Emperor (I L R 44 Cal. 66). The opposite‑party No. 1 has no doubt raised a claim of title to the pipes in question; but as we have said that the criminal Court is not to go into the question of rival claim of the parties in regard to the properties in question but has to restrict itself to the question as to whether the person charged with the offence of theft can be said to have had the dishonest intention to remove it without any semblance of bona fide claim of right. Judged in this context, we feel that in the present case in which the petitioner has been charged with the offence of theft and abetment of theft in the two criminal cases in respect of dishonest intention of removing the goods and dishonest intention being the paramount factor in construing the offence of theft under section 378 of the Code and which is absent in the present case to allow the prosecution of the petitioner by the opposite‑party No. 1 would amount to nothing but harassment of the petitioner. It is alleged by opposite‑party No. 1 that the theft was committed between December 1961 and March 1962, when he was lying ill at Dacca. He admits his knowledge of the theft to be sometime in May 1962, but he did not lodge any complaint against the petitioner for theft until the 8th and 10th of January 1963, respectively, in the two Courts at Bogra and Dinajpur. Explanation for this unusual delay by the learned Advocate for the opposite‑party No. 1 has been that in the meantime he approached the father of the petitioner for the price of the goods and having ultimately been denied of any settlement sometime in December 1962, he was forced to go to the criminal Court in January 1963. This is an explanation which, in our opinion, seems to be a futile one. In the ultimate analysis, therefore, we, upon a consideration of all the facts and circumstances of the case and the arguments placed before us by the learned Advocates of the contending parties, have come to the conclusion that the elements of section 378 of the Pakistan Penal Code, specially one of dishonest intention and wrongful gain and wrongful loss, is not to be C found in the actions of the petitioner if at all he has removed the goods from Santahar and Parbatipur Railway Stations and, as such, he cannot be allowed to be prosecuted. Above all, we feel that in the facts and circumstances of the case the dispute is entirely of civil nature and this should be decided in a civil Court and does not call for a criminal proceeding. In the result, therefore, the Rules issued in Criminal Revision Cases Nos. 10 and 63 of 1964, are made absolute, the proceedings pending against the petitioner in Criminal Case No. 29‑C in the Court of Mr. K. S. Islam, Magistrate, 1st Class of Dinajpur and in Criminal Case No. 37/C of 1963, in the Court of Mr. M. K. Ali, Magistrate, 1st Class of Bogra are hereby quashed, and we direct that the processes issued against the petitioner be re‑called forthwith and he be discharged from the bail bond, if any. Rules issued in Miscellaneous Cases Nos. 72 of 1963 and 14 of 1964, are hereby discharged as the question of transferring the cases after quashing the proceedings does not arise. SALAHUDDIN AHMAD, J.‑

I agree. S. Q. Rules made absolute.