JUDGMENT '
1. This Rule was obtained by the petitioners against, an order of conviction under section 379, P. P. C.
2. Passed by Mr.' B. Rahman, Magistrate, 1st Class, Tangail. The accused-petitioner. No. 1 was convicted under section 379/109, P. P. C. And the petitioners Nos. 2 to 1 l were convicted under section 379, P. P. C. And sentenced to pay a fine of Rs. 50 each, in default to suffer rigorous imprisonment for one month each.
3. The allegations against the accused are that they committed theft of 10 gazari posts worth about 250 by removing them out of possession of P. W. 1, Salehuddin Ahmed, the forester of Dewpara Beat Office. On 16-12-67 P. W. 1, Salehuddin Ahmed along with P. Ws. 2, 3, 4 and 5 went on patrol duty .In the forest and when they returned to head quarter at 11-30 to 12 p.m. They found the petitioners Nos. 2 to 11 to carry 10 logs of gazari posts from the office compound and the petitioner No. 1 Hyder Ali guard--ing the gang from behind. The patrol party wanted to apprehend the accused but they fled away leaving the gazari posts at some distance, P. W. 1 and others recognised the accused persons with the flash of torch light. On these allegations, a first information report having been lodged, the local police investigated into the case and submitted charge-sheet against the accused persons. Thus they were put on trial before the learned Magistrate to meet charges under sections 379, 379/109, P. P. C.
4. The plea of the accused was one of innocence. They asserted that the prosec6tion case was absolutely false.
5. Seven witnesses for the prosecution and none for the defence were examined in the case. The learned Magistrate on appraisal of the evidence convicted and sentenced the accused petitioners as mentioned above. The accused challenged the propriety of the order of conviction before the Sessions Judge, Mymensingh under section 438 of the Code of Criminal Procedure but the learned Additional Sessions Judge, 2nd Court Mymensingh reject--ed the motion. Hence the present petition before this Court.
6. P. W. 1 Salehuddin Ahmed, the Forester of Dewapara Forest Office is the informant in the case. He has narrated the prosecu--tion case in detail. He has stated in his deposition that on 16-12-67 he along with P. W. 2 Obidur Rahman, P. W. 3 Abdul Karim, P. W. 4 Arfan Ali and P. W. 5 Chand Mahmud, went on patrol -party in the forest and when they returned to the office compound at about 11-30 to 12 p.m., they found the petitioners Nos. 2 to 11 to carry ten logs of gazari posts from the office compound and the petitioner No. 1 and some others were following them. The patrol party wanted to apprehend the accused persons but they fled away throwing the logs at some distance. They, however, recognised the accused persons whore they knew from before. The story narrated by P.
7. W. 1 has been corroborated by P. Ws. 2, 3, 4 and 5 on material particulars. The uniform evidence of the witnesses show that the accused petitioners Nos. 2 to 11 were each carrying one log of gazari posts and the petitioner No. 1 Haider Ali was following them from behind. The evidence of the eye- witnesses on the question of removal of gazari logs from the office compound and recognition of the accused are all through consistent. There is no reason to disbelieve them in this respect.
8. The learned Magistrate has discussed the evidence of the witnesses elaborately in his judgment and recorded clear findings on facts. The defence plea has also been duly considered by him. The findings of facts recorded by the learned Magistrate cannot be called unreasonable. I, therefore find no reason to interfere with the findings of it recorded therein.
9. The charge against the accused-petitioner Nos. 2 to 11 has thus been well established and they have been rightly convicted in the case under section 379, P. P. C.
10. Now coming to the case of petitioner No. 1 Haider Ali it appears that he was just following the other accused from behind. The prosecution witnesses have admitted that Haider Ali was not carrying any log of gazari post. A theft is an individual liability. There being no evidence on record to show that accused Haider Ali carried any log and there being nothing to indicate that accused Haider Ali was actively aiding or helping the other accused to complete the removal of the gazari posts, it seems risky to hold that he was also one of the participators in the theft. The case of petitioner No. 1 Haider Ali thus stands on a different footing. From his mere presence there, it cannot be safely held that Haider Ali committed any theft or actively aided or helped the other accused to commit the theft. In this view of the matter, I, think the conviction of Haider Ali under section 379/109, P. P. C. Is liable to be set aside.
11. In result the order of conviction and sentence in respect of the petitioner No. 1 Haider Ali is set aside and the order of conviction and sentence in respect of the petitioners Nos. 2 to 11 is affirmed.
12. The sentence passed on the petitioners Nos. 2 to 11 is nominal.
13. The Rule is accordingly disposed of.