1968 P Cr (PLP)

This revisional application is directed against an order of conviction of the accused‑petitioner under section 414 of the Pakistan Penal Code and sentence to suffer rigorous imprisonment for one year. The facts of the case, in short, are that a pair of bullocks belonging to the complainant Kasimuddin Fakir were stolen away and shortly after the theft sold at Panchbibi Hat. The bullocks were subsequently recovered from the house of accused Naimuddin who claimed to have purchased the same from accused Jalal and Wazid against a receipt. Prosecution case against this accused‑petitioner is that he wrote the sale receipt Exh. 2 in the Hat in favour of the purchaser and voluntarily assisted in concealing or disposing of or making away with the bullocks belonging to the complainant. The defence is a plea of innocence. The specific case of the accused‑petitioner is that lie is a scribe tinder the Ijaradar in the said Panchbibi Hat and that lie issued the sale receipt Exh. 2 against the sale of the bullocks in the Hat in good faith without any knowledge that the bullocks in question were stolen pro perties. Prosecution examined as many as tell witnesses in the ease and also produced a number of documents. The trial Court, on appraisal or the evidence, found the accused petitioner guilty under section 414 of the Pakistan Penal Code and accordingly convicted and sentenced him as stated above. By the self‑same judgment the trial Court also convicted and sentenced the co -accused under section 411 or the Pakistan Penal Code. Tile accused petitioner and the co‑accused preferred appeals against their respective convictions and sentences before the Sessions Judge, Bogra, but the learned Sessions Judge, after hearing the parties, dismissed the same. The petitioner there after moved the High Court under section 439 of the Code or Criminal Procedure and obtained the present Rule. The co -accused did not, however, prefer any revisional application before this Court. Mr. A. T. M. Kamrul Islam, learned Advocate appearing for tile petitioner has contended that there being no evidence on record as to tile guilty knowledge and dishonest intention of the accused‑petitioner and there being no finding to the effect that tile accused knew or had reason to believe tire bullocks to be stolen properties, the offence under section 414 of the Penal Code has not been proved and as such the order of conviction and sentence is not maintainable in law. The Rule is not opposed by the State. The offence under section 414 of tile Pakistan Penal Code comes seldom in Court for consideration. The essence of this section is the concealment of stolen property which the accused knew or had reason to believe to be stolen property. The main ingredients of tile section are that the property in question must be stolen property and the accused must voluntarily assist in concealing or disposing of or making away with such property with full knowledge or belief that the property iii question was stolen property. The intention of the section is to punish persons who subsequent to the commission of the offence either conceal the alleged property or make away with it by destroying or otherwise disposing of it. The words "knows or has reason to believe to be stolen property" mentioned in the section indicate that the person voluntarily assisting in concealing or disposing of or making away with property must have a definite knowledge that such property seas a stolen property. The word "believe" found here, is a very much stronger word than "suspect" and it involves the necessity of showing that the circumstances were such that a reasonable man must have felt convinced in his mind that the property with which he was dealing must be stolen property. It is not sufficient to show that the accused was careless on that he had reason to suspect that the property was stolen or that he did not make sufficient enquiry to ascertain whether it had been honestly acquired. The fact that the property dealt with is stolen property may in some instances be inferred indirectly from circumstantial evidence as from the way in which it is deal with by the party dealing with it, but the circumstances‑must be such as would justify the conclusion that the property is actually stolen property. The cases reported in 25 Cr. L J 790 and 27 Cr. L J 1144 which support the above principles may be referred to here. In a criminal case the onus of proof is always with the prosecution. To bring a case within the ambit of section 414 of the Penal Code, the prosecution must prove the above ingredients of the offence and the Court must come to clear findings on those points. Without clear findings on those elements of the section, a conviction under section 414 of the Pakistan Penal Code can not be maintained. In the instant case, it appears, the Courts below did not apply their minds properly to the various elements of the section and disposed of the matter in a slip shod manner. The evidence of P. Ws. 4 and 5 and the Exh. 2 are the only evidence in the case so far the accused petitioner Neki Miah Fakir is concerned. The evidence of P. Ws. 4 and 5 only prove that accused Naimuddin purchased the stolen bullocks from accused Jalal and Wazid at Panchibi Hat against a sale receipt and that the present accused‑petitioner wrote the said receipt Exh.

2. The accused‑petitioner does not dispute the writing of the sale receipt Exh.2. His case is that lie is a scribe under the Ijaradar at the Panchbibi Hat and that he issued the sale receipt in favour of the purchaser in connection with the sale of the bullocks in good faith without any knowledge that the bullocks were stolen properties. The Ijaradar of ‑the market has not been examined in the case. Evidence of P. Ws. 4‑and 5 referred to above, do not disclose that the accused‑petitioner knew or had reason to believe the bullocks to be stolen properties. Exh. 2 also does not show that the present accused had any knowledge that the bullocks in question were stolen properties. The description of the bullocks given in the sale receipt Exh. 2, though does not tally with the description given in the certificate Exh. 7 issued by P. W. 1, a member of the Union Council, it does not help the prosecution, because this discrepancy does not show the circumstances from which it can be inferred that the accused‑petitioner knew or had reason to believe the bullocks to be stolen properties.' Save and except the sale receipt Exh. 2 there is nothing else to directly connect the petitioner with this case. There is no evidence to show that he voluntarily assisted in concealing or disposing of or making away with the bullocks belonging to the complainant, P. W.

1. The materials or records do not indicate that the accused‑petitioner had any guilty knowledge and dishonest intention. He issued the receipt Exh. 2 in good faith without any knowledge that the bullocks were stolen properties. Thus the main ingredients of the offence being absent, the charge against the accused‑petitioner cannot be said to have been established in the case and as such the order of conviction and sentence cannot stand. It is unfortunate to note that the lower appellate Court in disposing of the appeal did not discuss the evidence at all in his judgment nor come to any independent finding on any of the points involved in the case. This petition must, therefore, succeed. The order of conviction and sentence is accordingly set aside. The accused -petitioner is discharged from his bail bond. The Rule is thus made absolute. Rule made absolute.