1. The applicant was convicted by the Resident Magistrate, Moro, for an offence under sections 457 and 380, P. P. C. and sen tenced to undergo R. 1. for 12 months and pay a fine of Rs. 300 or in default to undergo R.I. for 3 months under each count, ordering the sentences to run concurrently. Against this conviction an appeal was filed and the learned Sessions Judge, Nawabshah altered the conviction to one under section 411, P. P. C. and sentenced the applicant to undergo R. I. for 6 months and pay a fine of Rs. 50 or in default to undergo R. I. for 15 days.
2. On 22-6-67 Abdul Aziz lodged a first report that about 6 months ago he had gone to irrigate his land leaving behind his brother Hidayat Ullah in the house. In the early morning his brother called him and informed him that theft had been committed in the house. He went to the house and found the lock of the room broken and household articles stolen. He reported the matter to his nekmard Haji Ditto who advised him to make private inquiries. Subsequently he was informed by Suleman Karimbux and Ashiqali that the applicant bad confessed before them that he had committed the theft and had demanded bhung for the restoration of the stolen property. The comp lainant agreed to pay the bhung but later he was informed that the applicant had told them that one Mooso had refused to return the property. Consequently report was lodged.
3. Investigation was resumed and the applicant was arrested. He took the police to his own house and produced three stolen articles i. e. (1) one old shirt blue colour, (2) 20 silver bangles, and (3) one bansri gold bulo. Mooso was also arrested. After usual investigation both were challaned. They proclaimed their innocence. The applicant denied having produced the stolen property.
4. The learned Magistrate, on the assessment of the evidence acquitted Mooso while convicted the applicant. He based the conviction on the extra-judicial confession and the production of the property by the applicant. However, the learned Sessions Judge in appeal, rejected the extra- judicial confession and accepted the production of the stolen property.
5. The only point which has been argued before me is that the house from where the stolen property was recovered was occupied by the applicant as well as his father and brother and, therefore, it could not be said that the applicant was in exclusive possession of the stolen property and so no presumption under section 114 of the Evidence Act could arise much less conviction could be recorded on the basis of that evidence. On the other hand it was pointed out by the learned counsel for the State that since the property was produced by the applicant himself from the house he must be deemed to be in possession of tne property.
6. I have considered the arguments advanced before me and I am of the view that the exclusive possession was not established. Admittedly the father and the brother were living with the applicant in the same house. There is no evidence to show that the property was lying concealed when it was produced, so that it may be said that the applicant had the exclusive knowledge of the presence of the property in the house. The possibility that either his father or brother had kept the property there and he had the knowledge of it cannot be excluded. Mere knowledge that some stolen property was lying in the house is not enough The law requires that he must be in exclusive possession of the property and this has not been established in the present case. Moreover, the property was recovered six months after the theft and, therefore, it could hardly be said to be a recent possession In that case also presumption under section 114, Evidence Act does not arise. Law requires that not only the person should be in possession of the property but the possession must be recent. Both these ingredients are lacking in the present case. At any rate the case is not free from doubt and the applicant is entitled to receive its benefit.
7. In the circumstances I allow the revision application and set aside the coviction and sentence passed against the applicant and acquit him. .