Applicants were arraigned on the charge that on 13.06.2016, at main Superhighway , Scheme No. 33, Karachi, they received robbed property viz. 145 Carton cosmetic, two HS hozri five bell, 46 carto n of nail remover , HB Brazier 15 bell, 110 carton of ladies purse, 10 carton of 11-surgical, 17 carton 28 car speakers, 18 carton one lamination, Inn brazier two bell, 24 carton battery , three bell lady scarf, 10 carton manyari makeup kit, 20 carton jewelry , knowingly that the transfer of possession was knowing to be in respect of stolen property .
2. At the outset, learned counsel for the appellants contends that no separate case was registered; Sections 395 and 412, PPC are mentioned but none is sent up or charged under Section 395, PPC. He added that prosecution, in all, examined seven (07) private and official witnesses but prosecution never succeeded in proving the charge against the appellants. While referring to evidences, he stated that P.W Rehmatullah in his cross-examination contends that "it is fact that we ourselves were searching troller with container from Superhighway Burraq Patrol Pump, which was brought at police station. It is fact that the troller was found on the fourth day of incident. It is fact that time and date of recovery of troller is not mentioned in FIR. It is fact that sizes of each cartoon (carton) which were loaded from international goods transport are not mentioned in the FIR. It is fact that I have not informed 15 Police. It is fact that weight of loaded articles is also not mentioned in the FIR. It is fact that I have not produced the builty of loaded articles before the Court. It is fact that I have also not produced the invoices of loaded articles. It is fact that I have also not produced delivery letter voluntarily say that documents lying the troller which was robbed.
Further in his cross-examination he contends that police prepared mashirnama of every container . It is fact that articles produced before the Court were not produced in my presence voluntarily says that P. W-Dawood is known to such facts who produced the same." P.W-Rizwan Asif in his cross-examination contended that "awe checked two cartons out of loaded cartons. It is fact that cartons were owned by defendants' party . It is fact that I have not produced tied articles." P.W-Muhammad Dawood contended that "it is fact that names of the company of allegedly dacoited articles are not mentioned in FIR. It is fact that articles produced befor e the Court are available in the market. It is fact that I have not produced any documentary proof of ownership of Pak International Company in my name. The other witnesses though have deposed in the light of FIR but it is a matter of record that despite specific claim of commission of dacoity no charge was ever framed; prosecution also failed in establishing the ownership of recovered articles which were allegedly robbed away from the of troller . The prosecution was bound to prove that appellants received or retained possession of articles knowing the same to be robbed/looted property . He continued while arguing that whole property that was released under Superdari with condition that the same would be produced before the Court as and when directed but only some reproductive parts were produced before the Court. Owners of such articles were also not examined. Learned counsel for the appellant has relied upon 2011 MLD 1 131 & 2001 MLD 1281 .
3. Learned Additional Prosecutor General has vehemently argued that the recovery is not disputed; hence, they have also failed to prove that they received their property with bonafide intention.
4. Heard the respective sides and have also carefully examined the available material with able assistance of respective counsels.
5. Since, the learned counsel for the appellants has seriously attacked upon the ingredients of Section 412, P.P.C. while referring to case of prosecution and material brought by it (prosecution) hence it would be conducive to first .refer the Section 412, PPC which reads as:- Dishonestly receiving stolen property in the commission of a dacoity: 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 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 imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine.
Here,. I should add that legally purchasing articles from persons or market is neither prohibited nor is a crime hence one, having purchased such articles, can validly retain the same. This is the reason because of which attracting of provision of Section 412, PPC has been subject to:-- i) dishonestly receiving or retaining property / articles with knowledge of same being consequence of commission of dacoity; ii) dishonestly receives from person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits; iii) property which he knows or has reason to believe to have been stolen I find no reluctance in adding that simple dishonest receiving property alone would not constitute the offence within meaning of this section unless the transfer of possession is obtained from the person, known to be belonging to dacoits or be a dacoit or same (property ) is known to be stolen. Thus before insisting a conviction for the offence; the prosecution would be required to positively prove two facts i.e:-- i) the property is stolen / robbed; and ii) transfer of possession is with active knowledge of said fact; In absence whereof mere recovery of even stolen property alone would neither be sufficient nor safe to record the conviction. Here, it would be relevant to reproduce Paragraphs No. 9 & 10 of case of Abdul Wahab (Supra) are as under:-- "9. I have perused the evidence on record and gone through the case-law cited by the learned counsel. It appears that the learned trial Court while framing the points for determination has erred in combining the two essential points, in Point No. 1 alone. The fact of recovery of the vehicle should have been considered for determination under a district point. Then the fact that it was stolen property and was dishonestly received/retaine d by the appellant knowing or having reason to believe that possession thereof was transferred by the commission of dacoity was to be considered under a separate point. As for as the second portion of Section 412, PPC, it could be considered, if the fact so warranted, as an alternative point. This would facilitate the trial Court in dilating upon each essential ingredient of the offence under 412, PPC in the light of thereon. Howeve r, it is significant to mention that an irregularity arising in consequences of an error in formulating points for determination shall not by itself vitiate the trial if all the ingredients of the offence are otherwise thoroughly taken into account and evidence discussed and appraised considering dif ferent aspects.
"10. Incidentally , in this case, the evidence on record had confined to the point of recovery of vehicle from the appellant. As already mentioned, learned counsel for appellant while commenting upon the genuineness of the recovery argued that the prerequisite that the vehicle was dishonestly received and retained as stolen property and the appellant knew or had reason to believe that the possession thereof had been transferred by commission of dacoity is absolutely lacking. In such a case, I agree with the learned counsel that the prosecuation was prelimarily bound to furnish positive evidence to show that the property was stolen or that its possession was transferrd by commission of dacoity etc. The FIR in the instant case indicates that the appellant had disclosed that he had snatched the car at Tariq Road. Initially , the FIR of that case was to be proved in accordance with rule of evidence and then evidence was to be led to show that as a result of dacoity that car was snatched from a particular person or that in any manner it was stolen property . Evidence on the point is wholly lacking . The version of accused before police was not enough in this behalf. The appellant has denied all the allegations. The Investigating Officer Aftab Ahmed has stated that he had contacted Bahadurabad Police Station on telephone and the car was handed over to Bahadurabad Police alongwith the accused. No such entry was produced at the trial to substantiate the above fact.
In this regard the authority cited by the learned counsel for the appellant Muhammad Shafi v. The State (1993 PCr.LJ 142) supports his contention that basically the prosecution failed to adduce direct evidence to prove the fact t0hat the car was stolen or snatched." As well as relevant paragraph in the case of Syed Rizwan Ali (2011 MLD 1 131) is as under:- "Learned Deputy Prosecutor-General frankly concede to the extent that it was incumbent upon the Investigating Officer to have produced anything to show that the vehicle, in question was stolen and by not producing the FIR of Crime No. 258 of 2008 which reported the, theft of subject vehicle has badly damaged the case of the prosecution.
He therefore states that he is not in a position to legally support the sentence under Section 412, PPC. It is next contended that even otherwise the accus ed should have been charged in Crime No. 258 of 2008. He further by referring to Section 403(4), Cr .P.C contends that even after acquittal, the accused can be charged in that crime.
I have heard the learned counsel for the respective parties and have perused the record and the case law cited at bar.
Perusal of the record reflects that the prosecution in order to prove its case has examined three witnesses i.e. Muhammad Pariyal Incharge ACLC, Hyderabad who produced mashirnama of arrest and recovery , roznamcha entry for patrolling; arrival entry and FIR of crime No. 20 of 2009, Muhammad Irfan and Sajjad Ali Khan the other two witnesses far the prosecution though supported the case of prosecution but did not produce any document.
The prosecution has miserably failed to produce any documentary evidence in support of their case that vehicle No. AKJ-868 was involved in crime No. 258 of 2008, under Section 392, PPC of police station Gulshan-e-Iqbal, Karachi, nor examined the complainant of said case consequently there is nothing on record except the mere statement of the prosecution witnesses that the said vehicle was required in crime No. 258 of 2008.
In the circumstances, the contention of the learned counsel for the appellant that there is nothing on record to demonstrate that the vehicle was stolen by commission of a dacoity or received from such person as stolen property appears to be correct and the concession given by the A.P.G, Sindh appears to be just and legal.
In the case of Muhammad Ali Supra relied upon by Mr. Bukhari, it was held that the burden to establish case in respect of a charge by substantial and independent evidence and beyond reasonable doubt lies upon the prosecution and in the instant case the prosecution has failed to discharge such burden.
The appeal, consequently , is allowed, the conviction and sentence awarded to the appellant by the learned trial Court, is set aside and the appellant is acquitted. He shall be released forthwith, if not required in any other case.
However , it will be open for the Investigat ing Officer in crime No. 258 of 2008 to investigate the matter and in case, anything appears positive to charge the appellant in accordance with law ."
6. In the instant case, it is not a matter of dispute that the prosecution never proved the factum of property allegedly recovered, to be stolen / robbed and even it was, never safely established that appellants had come into possession thereof with active knowledge of same being robbed / looted one. On the other hand, the witness admitted that articles, claimed as looted property , were easily available in market. Even the factum of ownership such property was not safely proved nor it was established that it was the stolen property . Thus, prosecution never succeeded in proving the required ingredients of the offence for which the appellants have been convicted. Even, the prosecution did not prove the case property as admittedly the whole property , released on superdari, was not produced during trial. I would further add that it is undeniable settled law that in criminal administration of justice prosecution is bound to prove the case beyond reasonable shadow of doubt and any single dent in the prosecution's case is sufficient to extend the benefit of doubt. Such principle is fully attracted in such like offence too least initial burden shall be upon prosecution and only then accused could be asked to prove his bona fide possession. Since, evidently the prosecution never succeeded in discharging initial burden in proving requi red ingredients hence in absence thereof the conviction, legally cannot sustain. Accordingly , it is not the case in which can be said that prosecution has proved its case; thus, the impugned judgment is set-aside. Appeal is allowed.
Appellants shall be released forthwith, if not required in other custody case.