' MUHAMMAD HASHIM KHAN KAKAR, J.---The petitioners Altaf Hussain and Abdul Majeed have filed the present revision petition under section 435 read with section 439 of the Cr.P.C. For setting aside the respective judgments of the learned Sessions Judge, Lasbella at Hub dated 5th March, 2010 and Judicial Magistrate, Hub dated 28th January, 2010 and also seek acquittal. In terms of the judgment of the learned Judicial Magistrate, Hub, the accused/petitioners were convicted and sentenced to suffer rigorous imprisonment for three (3) months each with the benefit of section 382-B of the Cr.P.C. The accused/appellants preferred an appeal against the said judgment.
However, the learned Sessions Judge, Lasbella at Hub dismissed the appeal and upheld the conviction and sentence. The petitioners being aggrieved filed the present revision petition.
2. The facts explained by Ghulam Mehdi Bugti, SI/SHO before the Investigating Officer Khan Muhammad, SI, in his complaint Exh.P/1-A are as follows:-- On the fateful day i,e, 22nd March, 2009, after receiving spy information regarding stolen motorcycles being packed and transporting towards Bella, the complainant and other police officials in supervision of DSP along with other police officials raised blockade in front of police station, when at about 12-30 a.m., a Mazda bus bearing Registration No,PE-1159, coming from Karachi was stopped/intercepted, being driven by accused Imam Bakhsh, while the remaining accused; viz., Elahi Bakhsh, Ghulam Abbas, Niaz, Abdul Majeed and Altaf Hussain were also found sitting in the same and after carrying out search of the bus, five motorcycles in the shape of open parts packed in different packets were recovered. The said articles were taken into possession through recovery memo and thereafter Crime No,8 of 2009 dated 22nd March, 2009, under section 411 read with section 34 of the P.P.C. Was registered.
3. The defence setup by the accused/petitioners under section 342 of the Cr.P.C. Is that they were travelling in the said bus as passengers, having no knowledge about the presence of recovered stolen articles at the relevant time.
4. The prosecution, in order to prove the accusation, produced and examined seven witnesses.
5. I have heard the learned counsel for the parties. The arguments urged by the counsel for the revisionists have the following prongs:--
(i) the prosecution has badly failed to prove the actual and conscious possession of the revisionists;
(ii) the revisionists were travelling in. The said bus at the relevant time as passengers and they had no knowledge about the presence of parts of the motorcycles;
(iii) the prosecution evidence is suffering from glaring contradictions and was not sufficient to form conviction; and
(iv) the impugned judgments being perverse and contrary to law are not sustainable.
6. On the contrary, the learned Additional Prosecutor General, while controverting the contentions raised by the learned counsel for the petitioners, submitted that the prosecution has proved its case to the hilt, as such, in view of the concurrent findings of the Courts below, the revision petition is liable to be dismissed.
7. Before dilating upon the rival contentions raised on behalf of the parties, it would be appropriate and advantageous to reproduce the relevant provisions of section 411 of the P.P.C., which reads as under:-- "411. Dishonestly receiving stolen property. Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both."
' A bare perusal of the aforesaid provision of law clearly demonstrates that this section is directly not against the principal offender, such as, thief, robber or misappropriator, but against the class of persons, who trade in such stolen articles known as "receivers". A person, immediately, after theft found to be in possession of stolen property, presumption would be that either he is a thief or in possession of goods with knowledge that those are stolen. Admittedly, mere possession of the stolen property is not sufficient to constitute an offence under the aforementioned provision, rather in addition it has got to be established that the person in possession of the stolen property had dishonestly received or retained the property knowing or having reasons to believe the same to be stolen. The onus is always on the prosecution to prove the essential elements of the offence. In case of failure on the part of the prosecution to prove the basic ingredients i,e, receipt or retention of property belonging to someone else, the property being stolen one, existence of knowledge or belief on the part of the person found in possession and the receipt and retention is dishonest, no conviction can be awarded. The prosecution to establish an offence under section 411 of the P.P.C., must not only prove that the property is stolen, but it must also be established that the person charged with being in possession of stolen property either know the property to be stolen or has reasonable grounds for believing the same to be stolen. In order to constitute an offence under this section, the prosecution is not only required to prove the possession to be recent but also to establish exclusive possession of the property knowing it to be stolen. Stolen property recovered long after theft, possession cannot be said to be recent so as to ensure conviction under this section. In order to raise the presumption against the accused, he must be in exclusive possession of stolen property. Similarly, to constitute "possession" within the meaning of section 411 of the P.P.C., it must be interpreted in its broadest sense, and apart from physical possession, it must also mean the ownership of and control over the alleged recovered parts of motorcycles. The word "possession" is a word of wide import and is not. Free from ambiguity. This is because the meaning of possession must depend upon the context in which the word is used. The mental element is an essential element of possession in criminal statutes.
8. While considering the case of the petitioners on the touchstone of the aforementioned criterion, I am of the considered view that the prosecution has badly failed to prove the conscious possession of the petitioners, as the recovery has not been effected from their actual and conscious possession, rather it has been effected from a passenger bus, which was driven by co-convict Imam Bakhsh. The record also reveals that the alleged recovered motorcycles were snatched/stolen on 13th March, 2009, 14th March, 2009, 16th March, 2009 and 18th March, 2009 from different areas of Karachi. In such circumstances, if the case of the prosecution is taken to be a gospel truth, even then no case under section 411 of the P.P.C. Has been made out, as the possession is not a recent one, thus, no adverse presumption could be drawn against the petitioners. They cannot be presumed to be in possession of the bus in question. Neither the petitioners were drivers of the bus in question, nor its cleaners, wherefrom the alleged recovery of stolen articles has been effected.
9. I am conscious of the fact that two Courts have decided the case against the revisionists and it is trite saying that the scope of revision under the circumstances is very limited, however, where the finding. Of fact affecting the decision is not based on the evidence or it is result of misreading or non-reading of evidence on record, then revisional jurisdiction is very wide and is not a power, but a duty, which has to be exercised whenever facts calling for its exercise are brought to the notice of the Court. The revisional Court can interfere for correction of manifest illegality or prevention of gross miscarriage of justice.
' The cumulative effect of all above factors resulted into recording of acquittal of the revisionists/petitioners, which I had done by setting aside the impugned judgments and the conviction vide short order dated 23rd July, 2013 and these are the reasons thereof.