P L D 1953 Azad J (PLP)

The condition precedent for the application of Ill. (a) to section 114, Evidence Act is that the accused must be in possession of stolen goods. The production of property by itself would not necessarily prove his possession. It would at the most show that the accused had knowledge that the property was kept or con cealed. In the absence of any Incriminating statement made by the accused leading to the discovery of property, its production alone from a place which was accessible to the public would not be sufficient to establish his possession. The possession of the article must be clearly traced to him In order to justify the presumption under the illustration. Zain‑ul‑Abdin Shah for Petitioner. Muhammad Sharif, Government Advocate for Respondent. ABDUL MAJID, C. J.‑The appellant Jumma was tried along with two other persons for offences punishable under sections 395 and 342 of the Azad Penal Code in respect of the dacoity com mitted on the night between 9th and 10th April 1952 in the house of one Harder Sh h of village Tehdali, Police Station Gerhi Dopatta, District Muzaffarabad, by the Sessions Judge of Poonch and Muzaffarabad. The allegations of the prosecution were that the appellant and his two accused, Noor Din approver and Habibullah absconder forced their entry into the raided house and after beating and pinioning the Inmates, decamped with ornaments, clothes etc. The trial resulted in the acquittal of Ali Sher and Mir Hussain Shah accused. The appellant was convicted under section 411, A. P. C. and was sentenced to two years' rigorous imprisonment and Rs. 50 fine. The appellant was also ordered to suffer further rigorous imprisonment for three months in default of the payment of fine. Against the decision, the appellant has preferred the present appeal, In order to prove the guilt of the appellant, the prosecution depended upon two pieces of evidence. The first piece of evidence was the testimony of Noor‑ud Din approver bat it was rejected by the learned Sessions Judge. The second piece of evidence consisted of the statements of two witnesses, namely, Mst. Bia Jan (P. W. 3) the wife of Haider Shah and Gulaba (P. W. 5). Both these witnesses stated that stolen clothes were dug out from a place pointed out by the appellant in his field. The learned Sessions Judge considered that the evidence given by Mst. Bia Jan and Gulaba raised a presumption under section 114, illustration (a) of the Evidence Act as to the commission of an offence under section 411, A. P. C. by the appellant and the failure of the appellant to rebut 9t by any evidence made him guilty of the said offence. It is admitted by the Government Advocate that the statement of the approver was rightly rejected by the learned Sessions Judge because it was not corroborated by any evidence which indicated that the approver did take part in the crime and what to say of the fact that the appellant had been truthfully implicated. I need not, therefore, dwell upon the uncorroborated evidence of the approver which does not connect him and much less the appellant with the crime. So far as the evidence regarding the recovery of stolen clothes from a place in the field of the appellant on his pointing out is concerned, the learned counsel for the appellant has vehemently urged that it does not raise any presumption about the commission of an offence under section 411, A. P. C. by the appellant. I think that the contention of the learned counsel for the appellant is full of force. The two witnesses Mst. Bia Jan and Gulaba simply mentioned that when the police took the appellant and his co‑accused to the field of the appellant the place wherefrom the clothes were dug out by all the accused together, was pointed out by the appellant. These witnesses did not mention that any incriminating statement was made by the appellant to the Police before the stolen clothes were recovered. The condition precedent for the application of hl. (a) to section 114, Evidence Act is that the accused must be in possession of stolen goods. The production or property by itself would not necessarily prove his possession. It would at the most show that the accused had knowledge that the property was kept or concealed. In the absence of any incriminating statement made by the accused leading to the discovery of property, its production alone from a place which was accessible to the public would not be sufficient to establish his possession. The possession of the article must lie clearly traced to him in order to justify the presumption under the illustration. In order to convict In such circumstances, it is clearly necessary that there should be corroborating evidence as to the guilt of the accused either as the receiver of the stolen property or if such evidence is forthcoming of the fact that he was actually a thief. In the case before me, there is absolutely no corroborating evidence pertaining to the fact that the appellant was receiver of the property or that he was the actual thief. It is also doubtful whether it was the appellant who pointed out the place wherefrom the stolen clothes were dug out because of the absence of any statement of the appellant recorded by the police before the accused were taken to the place where the stolen clothes were found buried. I, therefore, hold that the testimony of Mst. Bia Jan and Gulaba is not sufficient to convict the appellant under section 411, A. P. C. I accordingly accept the appeal and setting aside the conviction and sentence of the appellant acquit him. The appellant who is on bail is discharged from the bail bond. The fine, it any paid by the appellant shall be refunded to him. A.H. Appeal accepted