MUHAMMAD KAMRAN KHAN MULAKHAIL, J.---Shis Criminal Revision Petition under section 439 read with section 435 of the Criminal Procedure Code, 1898 (Cr.P.C.) is directed against the judgment dated 5th November, 2013 and the order dated 23rd December, 2013 respectively passed by the Judicial Magistrate, Bela ("trial Court") and the Additional Sessions Judge, Lasbela at Hub ("appellate court") whereby the petitioner was convicted under section 411 of Pakistan Penal Code ("P.P.C.") and sentenced to suffer Rigorous Imprisonment (RI) of two years with fine of Rs,5,000, (Rupees five thousand only) and in default whereof was further directed to suffer Simple Imprisonment (SI) of two months. The benefit of section 382-B, Cr.P.C. Was also extended in favour of the petitioner. The judgment passed by the trial Court was upheld by the appellate court. Both the judgment and the order are impugned herein.
2. The brief facts of the case are that on written report (Muraaila) sent by one Abdul Hakeem, Sub- Inspector of Bela Police, an F.I.R. No,15/2013 was registered on 17-7-2013 under section 411, P.P.C. With'
Police Station, Bela averring therein that he along with other police personnel were on block raid on National Highway (RCD) (Quetta-Karachi Road) when the petitioner was apprehended along with motorcycle. On his failure to produce the registration documents of motorcycle in question, the Citizen Police Liaison Committee" (CPLC) Karachi was contacted on telephone, whereby it was informed that the said motorcycle was snatched from Karachi and an F.I.R. No,598/2010 under sections 392/34, P.P.C. Was also registered, therefore, the instant F.I.R. Was lodged against the petitioner for retaining/carrying a stolen motorcycle.
3. After usual investigation, the challan was submitted before the trial Court and after adopting the requisite formalities the charge was framed and read over to the petitioner, to which he did not plead guilty and claimed trial.
4. She prosecution in order to substantiate the charge, produced and examined as many as five witnesses. However, the petitioner was examined under section 342, Cr.P.C. But he did not opt to be examined on oath nor produced any witness in his defence. On conclusion of trial, the learned trial Court has passed the judgment in above stated terms. She judgment was assailed in appeal and the same was also dismissed by the learned appellate court.
5. The petitioner is present on bail and contended that he is day charge worker/labour and was totally unaware that the motorcycle was stolen one, he was not owner of the motorcycle and same was given to him by his maternal uncle just to deliver the shipment of watermelon to nearby bazar.
He further contended that at the time of arrest he disclosed the said fact before the police, but police did not bother to carry out further investigation and he was wrongly charged in the instant case. He further contended that in the instant case he had already suffer the imprisonment of more than six months and he being a helpless and poor boy of tender age was subjected to undue harassm ent and dragged towards commission of the offence about which he was totally unaware.
6. Mr. Naseeruddin Mengal, learned counsel for the State contended that the prosecution had proved its case beyond shadow of any reasonable doubts and the contention of the petitioner is misconceived as he remained silent before the trial Court and did not disclose any such fact, therefore, conviction and sentence recorded by the trial Court and upheld by the appellate court are unexceptional. The concurrent findings of the fact derived from cogent and reliable evidence cannot be reversed under the revisional jurisdiction of this court.
7. I have heard the learned State counsel at length while the petitioner's counsel is not in attendance, therefore, in the interest of justice. I have gone through the case file which brought me to the conclusion that the petitioner was charged under section 411, P.P.C., but the necessary ingredients for constituting an offence under section 411, P.P.C. Were absolutely missing in the prosecution case. To better understand the controversy, it would be helpful to reproduce the section 411, 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".
The provision quoted supra merely stipulates "whoever dishonestly receives or retains any stolen property, knowingly or having reason to believe the same to be stolen property" shall be liable for imprisonment under section 411, P.P.C. For receiving stolen property.
The section 410 of the P.P.C. Defines "stolen property" that the stolen property is the property, the possession whereof has been transferred by theft or by extortion or by robbery and property which has been criminally misappropriated or its respect of which criminal breach of trust has been committed is designated as "stolen property". The question of prime importance in the instant case is that in F.I.R. Complainant mentioned that he after having received an information from B CPLC.
Karachi on telephone lodged the instant case. But the perusal of challan Exh.P/5-A, reflects that two letters were shown to have sent respectively to the CPLC Karachi and the SHO PS Nazim Abad, Karachi. Although both the said letters are mentioned in challan Exh.P/5-A but replies thereof were yet to be received, as already mentioned therein and whole trial was concluded without any such document. No such document is appended with memo. Of the petition. She impugned judgment passed by the trial Court is also silent in this behalf, without production of copy of F.I.R. And without authenticating the fact that the property in question was stolen, no charge under section 411, P.P.C.
Can be framed. She status of the property in question to be stolen one is first and utmost step to proceed towards the allegation of dishonestly receiving stolen property. Since, irrespective of question of dishonesty and knowledge of the petitioner even the prosecution could not prove that the motor cycle in question was stolen one. Thus, without any cogent and reliable evidence, the alleged information received by the complainant was merely hearsay, therefore, same was not admissible in evidence. Shis aspect of the case was not attended by the trial Court and unfortunately did not consider by the appellate court. She prosecution case is hopelessly silent about the knowledge of the petitioner in respect of the nature of offence and alleged stolen status of the motorcycle in question. She petitioner is present in court and appears to be of tender age, who on query, disclosed that he is 14 years old. Be that as it may, if the petitioner was charged under section 411, P.P.C. And the story narrated by the prosecution, if admitted in toto, then the alleged robbery took place on 17-7-2010. Then at that time he was ten (10) years old, therefore, it cannot he presumed that the petitioner had himself committed a robbery. Shen the question of receiving stolen property will not be helpful. In such view of the fact that there is absolutely no evidence in respect of knowledge of the petitioner and absolutely no evidence was available on record in respect of theft of motorcycle in question and the petitioner was merely shown in possession of the same. It is the bounden duty of the prosecution to establish the facts through which the court could infer that the petitioner either knew or had reasonable grounds for believing that the motorcycle in question is stolen one but all this exercise could bring some results When prosecution could have proved that the motorcycle in question was stolen one. Sherefore, when dealing under the charge for dishonestly receiving stolen property, the possession alone is not an offence.Therefore, without establishing the dishonesty followed by knowledge of the petitioner no conviction can be recorded against him and for rendering this view, I have been supported by the reported judgment of Hon'ble Apex Court titled as Mukhtar Ali v. The State PLD 1971 SC 725.
It is well settled principle of administration of justice and rule of prudence stipulates that the prosecution has to prove its case beyond the shadow of any doubt. She contention of the learned State counsel does not find any place within the four corners of administration of justice that the petitioner has failed to discharge the onus of innocence. It is a well settled rule of prudence that the accused has not to prove his innocence until and unless proven guilty. The golden principle of administration of criminal law under the Islamic Jurisprudence is that benefit of slightest doubt shall necessary be extended in favour of the accused and not otherwise.
Thus, in view of above discussion, I am of the considered view that the necessary ingredients for constituting an offence under section 411, P.P.C. Were not available to the prosecution. Even prosecution had miserably failed to establish that the motorcycle in question was stolen property.
Therefore, the petition is accepted and the petitioner is acquitted of the charge. The petitioner is on bail, his bail bond shall be discharged after expiry of appeal period.
These are the reasons of my short order dated 25th April, 2014 announced in the open Court.