P L D 1966 Dacca 98 (PLP)

A. S. CHOWDHURY, J.‑The appellant Manjil Fakir was convicted under section 412 of the Pakistan Penal Code by Mr. A. F. S. Rahman, Assistant Sessions Judge, Kushtia and sentenced to undergo rigorous imprisonment for a period of five years. He was also charged along with five other persons under section 395 of the Pakistan Penal Code but all the accused persons including the appellant were acquitted of that charge. The trial was held with the aid of Assessors, all of whom found the appellant not guilty under both the sections. The other accused persons were also found not guilty under section 395 of the Penal Code. The learned Judge, however, disagreeing with the Assessors convicted and sentenced the appellant under section 412 of the Penal Code. The case for the prosecution is that on 2‑10‑1962, a dacoity took place in the house of one Md. Abul Hossain, Chairman of the Jagati Union Council. The appellant having been acquitted under section 395 of the Penal Code, we are concerned with the evidence against him in respect of the offence under section 412 of the Penal Code. The prosecution case is that the appellant Manjil Fakir brought out a gun which is alleged to have been stolen from the house of Md. Abul Hossain on the date on which dacoity took place. The weapon was brought out from a ditch. The defence case is that he is innocent and has been falsely implicated. On a review of the evidence, it appears that P. W. 15 Md. Sawkat Ali has deposed: "Then Manjil got down into the water of the nearby ditch and brought out a gun therefrom. He got without searching for it. Abul Kashem took this gun into his custody and seized it under a seizure list in which I signed. This is my signature. This gun Exh. IV was brought out by Manjil at that time." P. W. 15 Md. Sawkat Ali is corroborated by P. W. 16 Ismail Mondal in regard to the recovery of the gun from the ditch. P. W:. 17 Md. Abul Kashem is a Sub‑Inspector of Police attached to Kushtia Police Station. He has given the number of the gun and also stated that it was brought out by the appellant from the ditch. No other direct evidence relating to the recovery of the weapon by the appellant has been pointed to us. Only other witness who has spoken of the recovery of the gun is P. W. 23 Maktab Hossain, the Investigating Officer who merely deposes to the effect that he sent a phone message directing the arrest of the appellant and he subsequently learnt that a gun was recovered from him. It is, therefore, clear that the recovery of the gun has been deposed to directly by P. Ws. 15, 16 and

17. It has thus been satisfactorily established by the prosecution that the appellant has in fact brought out the gun from the ditch close to the road of the C & B Department. Mr. Shamsuddin Ahmed, the learned Advocate for the appellant submits that the facts proved by the prosecution are not sufficient to constitute an offence under section 412 of the Penal Code and as such the conviction and sentence of the appellant cannot be maintained. The learned Deputy Legal Remembrancer, on the other hand, contends that the appellant brought out the gun from a public place, which shows that the appellant had the exclusive knowledge as to where the gun was, and, therefore, the evidence is sufficient to warrant a conviction under section 412 of the Penal Code. Section 412 of the Penal Code is in the following terms:‑

"Whoever dishonestly receives or retains any stolen property, the possession `whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with transportation for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine." A bare reading of the section makes it clear that in order to warrant a conviction under this section it must be proved beyond all reasonable doubt that not only the accused was in possession' of the property but further that he knew or had reason to believe that the property had been transferred by the commission of the dacoity. The evidence as already set out in the judgment clearly shows that the prosecution has merely succeeded in proving beyond all reasonable doubt that the appellant Manjil Fakir brought out a gun from the water of a ditch near the road of the Communication and Building Department. This evidence by itself is not sufficient according to us, to hold that he received the gun with a dishonest intention or he retained it knowing that it was a stolen property. The evidence adduced by the prosecution fixes the appellant merely with the knowledge that the gun was at the place of recovery. It may be his direct knowledge or information received from someone. The prosecution has totally failed to prove the ingredients of the offence as required by law and we are not inclined to accept the argument of the learned Deputy Legal Remembrancer that the recovery of a gun from a public place by the appellant irresistibly indicates that the appellant himself concealed the gun in the ditch. He has not been able to point out any evidence to the effect that the appellant received the gun or concealed it at the place from where it was recovered. In support of his contention, Mr. Ahmed has placed his reliance on the decision of this Court in the case of Asmat Fakir alias Asmat Ali Fakir v. The State (P L D 1958 Dacca 419). In that case a Division Bench of this Court consisting of Rahman and Khan, JJ., held:

"In on view also, the mere proof of the recovery of an article from a house in the possession of several persons, not being members of a Hindu joint family, would not by itself be sufficient to establish that any of the persons so jointly occupy ing that house are guilty under section 412 of the Pakistan Penal Code. In the present case, furthermore, we may mention that according to P. W. 11 the articles were in fact recovered from an open trunk inside that room and the prosecution led no evidence whatsoever to show to whom that particular trunk belonged. In the circumstances, it cannot be said that it had been established that the appellant was in any way in possession of the trunk from which the incriminating articles had been recovered." In that case it was found that the possession of the trunk from which the stolen article was recovered was also necessary to be proved and it was also noticed that the trunk did not belong to the accused. In the case before us also the ditch admittedly did not belong to the appellant nor was he in possession of it, nor is there any evidence that he concealed it in the ditch. The learned Deputy Legal Remembrancer' has, however, argued that the case referred to above is distinguishable because in that case the article was recovered from a house; whereas in the case before us the article had been recovered from a ditch which could not be in the knowledge of anyone else. His insurmountable difficulty, however, is that there is total absence of evidence of concealment of the gun by the appellant himself. That the contention of the learned Deputy Legal Remembrancer is of no substance will be I borne out by a Division Bench decision of the Allahabad High Court consisting of Sir John Edge, C. J. and Banerji, J. in the case of Queen‑Empress v. Goburda and another (I L R 17 All. 576). In that case one Gobinda was charged under section 411 of the Indian Penal Code along with a co -accused Dhankua. The conviction of Dhankua under section 411 of the Penal Code was maintained because the stolen articles were recovered from his house and the field belonging to him. In the case of Gobinda the conviction was set aside as the stolen property was brought out by him from a public place. The learned Judges observed as follows: "There must, to support a conviction in such a case, be some evidence which suggests that the accused himself concealed the article in the place where it was found. It is not sufficient for a conviction that the accused pointed out the stolen article, if it is left doubtful whether the accused or some other person concealed the stolen article, or that the accused obtained in some other way information that the stolen property was in the place where it was found. In Gobinda's case we allow his appeal, and, setting aside his conviction and sentence, we acquit him of the charge of which he has been convicted and direct that he be at once released." In this case, therefore, 'it is clearly laid down that merely pointing out a stolen article in a public place is not sufficient to hold that the person who pointed it out was also the person who concealed it therein. In the case before us also there is absolutely no such evidence. The same view has also been expressed in a Division Bench decision of the Calcutta High Court in the case of Paimullah and others v. The King‑Emperor (16 C W N 238). In that case the learned Judges observed as follows:‑

"Indeed it could not be sufficient to convict them under section 411, for as was held by the Allahabad Court in the case of Queen‑Empress v. Gobinda I L R 17 All. 576, where the sole evidence against the person charged with an offence under sec tion 411 consisted of the fact that the accused had pointed out the place where some of the stolen properties were concealed in the field of another person, this was not in itself sufficient evi dence to support a conviction under section 411, I. P. , C. with that ruling we are in entire agreement . . . . ... . . . . . . ." To the same effect is the decision in the case of Indar Singh v. Emperor (A I R 1921 Lah. 385). In that case it was held by Scoot‑Smith, J.; as follows:‑

"Now, it has been held frequently that the mere pointing out by an accused person of the place where stolen property is concealed which place is not in his possession is not of itself sufficient evidence to maintain a conviction for theft or for dishonestly receiving stolen property." In the case of Public Prosecutor v. Pakkiriswami and another (A I R 1929 Mad. 846) the stolen article was recovered from a tank. It was held by Curgenven, J., to be insufficient to convict the accused in the absence of any evidence that he concealed the stolen article in the tank. In that case also the learned Judge agreed with the view expressed in the case of Queen‑Empress v. Gobinda referred to above. The same view is also expressed in the case of Mata Prasad v. Emperor (A I R 1943 Oudh 298). In that case it was held that the fact that the accused pointed out the place outside his house which did not belong to him and where some of the stolen property was concealed and that he actually dug out the property and handed it over to the police is not sufficient to justify his conviction under section 411 of the Penal Code in the absence of evidence to suggest that the accused himself concealed the articles in the place where they were found. The learned Deputy Legal Remembrancer frankly concedes that this case applies to the facts of the case before us. We are satisfied that mere pointing out of a stolen article in a public place is not sufficient further to hold that he himself concealed the article in the place where it was found. Some evidence to that effect is necessary. Prosecution has in this case totally failed to adduce any evidence in that behalf to relieve us of our doubt as to whether the appellant or some one else concealed the gun in the ditch. In the result, the appeal is allowed the conviction and sentences of the appellant are set aside and he is acquitted of the charge under section 412 of the Code. He is directed to be set at liberty forthwith if not wanted in any other connection. ABDULLA, J.‑I agree. K. B. A Appeal accepted.