P L D 1957 Lahore 261 (PLP)

ORTCHESON, J.

This order will dispose of two connected Criminal Revisions, Nos. 469 and 564 of 1956 respectively filed through jail. The Petitioner, Wali Muhammad, has been convicted of two separate offences. In the case (No. 55/2 in the trial Court) out of which Revision No. 469 arises he was sentenced to three years' rigorous imprisonment under section 411, P. P. C., and in the other case (No. 54/2 in the trial Court) under section 412, P. P. C. to four years' rigorous imprisonment. Both orders were passed on the same date, the 28th of October 1953, by Mr. A. M. Saeed, Additional District Magistrate, Gujranwala. Two separate dacoities were committed, one in the house of Hidayat Ullah P. W. on the night of the 7th of December 1951, and the other on the night between the 21st and 22nd of November 1951, in the house of Labh Din P. W. It was subsequently discovered that the petitioner had disposed of part of the stolen property to Muhammad Akbar P. W., that belonging to Hidayat Ullah being sold on the 15th of December 1951 and that of Labh Din on the 23rd of November 1951. The petitioner unsuccessfully appealed to the learned Sessions Judge, Gujranwala, and has now come up in revision to this Court. The fact that the petitioner sold the stolen property to Muhammad Akbar P. W. is abundantly proved from the evidence led by the prosecution, and the only point calling for consideration in these petitions is the nature of the offence committed and the propriety of the punishment. In the case out of which Criminal Revision No. 469 arises, the petitioner was rightly convicted under section 411, P. P. C. but as no previous conviction has been proved against him, he should not in the circumstances, have been awarded the maximum term of imprisonment provided by the section. I accordingly reduce his sentence to two years' rigorous imprisonment. In the other case the petitioner was wrongly convicted under section 412, P. P. C. Both the learned Magistrate and the learned Sessions judge are apparently under the impression that if an accused is found with property the possession of which was transferred by the offence of dacoity, he may be presumed to have known or had reason to believe that the property in question is the subject-matter of a dacoity, but this is an erroneous view. The Courts below appear to have acted on the presumption forming Illustration (a) to section 114 of the Evidence Act, but as pointed out in Dhalu Mirdha v. Emperor (I L R (1946) 2 Cal. 619), a charge under section 412 of the Penal Code will not be proved by merely proving knowledge or belief that the articles were stolen articles, it being further incumbent on the prosecution to establish that the accused had knowledge or belief that the possession of the articles had been transferred by the commission of a dacoity. In the same ruling the learned judges emphasized that the above requirement cannot be proved by the presumption under section 114, Illustration (a) of the Evidence Act. The same view was taken by the Nagpur High Court in Narayan v. King Emperor (47 Cr. L J 822), the learned Judge remarking "In Dwarika Lohar v. Emperor (A I R 1941 Pat. 223) a Division Bench was of the view that when a person is found in possession of property taken in dacoity and is unable to give any reasonable explana?tion for its being with him, it may be presumed that he knew the property to have been stolen, but not that he knew or had reason to believe that it was the proceeds of a dacoity rather, than of a burglary or a theft. In order to justify his conviction on the more serious charge, there must be evidence, circum?stantial or oral, to show that he knew or had reason to believe that a dacoity had been committed and the property had been taken in it or that the person from whom he obtained it belonged to a gang of dacoits and the property was stolen property." Again in Chavadappa Pujari v. Emperor (A I R 1945 Bom. 292) it was held that no general principle can be laid down that if the offence was dacoity, the receiver of the property taken in dacoity must always be guilty under section 412 of the Penal Code, and that in most cases of mere possession of such property, the presumption would be of the lower offence under section

411. I respectfully agree with the view expressed above and hold that as in the present case the prosecution have made no attempt to prove the essential ingredient that the petitioner knew or had reason to believe that the possession of the property in dispute had been transferred by a dacoity, he can only be convicted under section 411 and not under section 412 P. P. C. I alter his conviction accordingly and sentence him to two years rigorous imprisonment, to run consecutively with the sentence passed in the other case. K.B.A./A.H.??????????????????????????????????????????????????????????????????????????????????????? Sentence altered.