The brief facts leading to the present revision petition are that the petitioner herein was intercepted, at the gate of the General Store, Moghalpura of the Pakistan Railways and on being searched, he was found to be in the possession of five pieces of Railway material, Exh.Pl/1-5 Engine parts and two nuts, Exh.P2/1-2 alleged to be stolen property and was arrested by Barkat Ali, P.W.1 (Constable) and Abdul Hmeed, P.W.2 (Constable), respectively. Therefore, F.I.R., Exh.PB/1 in pursuance to the complaint, Exh.PA, under Section 411, P.P.C. Was lodged against the accused- petitioper and after investigation he was sent up for trial before the Court of Ch. Altaf Hussain, Senior Special Magistrate, Railways, Lahore.
2. The learned trial Court, placing reliance upon the recovery memo, Exh.PB and the testimony of P.W.1 and P.W.2 who were also the recovery witnesses, and further placing reliance.Upon the testimony of P.W.3, Shuja-ud--Din, ACOS, General Store, Moghalpura of Pakistan Railways, who had identified the recovered property of the Railways and had furnished a certificate to that effect, Exh.PC, and after having examined P.W.4, who had investigated the case and P.W.5, who had lodged the formal F.I.R. And after taking into consideration the statement of the accused~petitioner under section 342, Cr.P.C. And the defence evidence produced through D.W.1, Qazi Faiz Muhammad and D.W.2, Nisar-ul-Haq, had convicted the petitioner under the provisions of section 411, P.P.C. And sentenced him to six months' R.I. Vide judgment dated 20-6-1989. The petitioner's appeal filed against the said judgment was dismissed by the Additional Sessions Judge, Lahore, vide judgment dated 6-4-1991 and the conviction and the sentence imposed by the trial Court was maintained.
Hence the present criminal revision petition.
3. The learned counsel for the petitioner argued that as the charge against the petitioner was under the provisions of Section 411, P.P.C. Therefore, it was incumbent upon the prosecution to first establish that the recovered property was stolen property, and that the petitionerhad retained the same in his possession, dishonestly, knowing it to be stolen property. In this respect, (Sahad Ahmed Sipra, J) he referred to the provisions of the said Section which are being reproduced herein for reference:-- Section 411. P.P.C. ,4 "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."
4. To support his contention, the learned counsel pointed out that there was not an iota of evidence to prove that the recovered material i.e. Exh.PI/1-5 Engine parts and Exh.P2/1-2 two nuts, had been stolen, and,that the said theft had been duly reported or that any evidence had been produced to prove that the petitioner had retained them knowing or having reason to believe the same to be stolen property. Therefore, contended that as the essential ingredients to prove the offence charged had not been established, as set up against the petitioner, therefore, the conviction and sentence under section 411, P.P.C. Was not sustainable in law.
To support his contentions, placed reliance upon:-- (i)Ghulam Farid v. The State 1989 PQr.1J 2285. Wherein the petitioner was acquitted* of the charge under section 411., P.P.C. As the recovered property had not been proved.To be the one stolen from the house of the complainant; (ii)Lai v. The State 19815 PCr.LJ 2009. Wherein, conviction and sentence under Section 411, P.P.C. Was set aside as it could not be stated with certainty that the recovered property was stolen property; and Khalil lqbal v TheState 1985 PCr.LJ. 525. Wherein, the appellant was acquitted by being given the benefit of doubt as the ornaments recovered were not proved to be stolen property.
5. On the other hand, the learned counsel for the State, opposed the present criminal revision and submitted that the petitioner was an employee of the Pakistan Railways and was intexcepted and searched on suspicion, and the recovery of the material in question cffected from his person while he was about to come out of the gate, and that it was proved beyond doubt that he had taken possession of the recovered property dishoneFtly but very reluctantly conceded that there was no evidence on the record to prove that any one had claimed the said recovered property to be stolen property or that the petitioner had dishonestly retained the same knowing or having reason to believe that it was stolen property.
We have given our anqious consideration to the submissions made by the learned counsel for the petitioner and the State, and perused the record minutely with their assistance.
7. We are constrained to observe that the prosecution 'had made no effort to establish that the recovered material vide recovery memo. Exb.PB was stolen property or that the petitioner was dishonestly in possession of the A same knowing or having reason to believe that it was stolen property, and as an essential ingredient to prove the charge under Section 411, P.P.C. Is that of dishonestly receiving stolen property, the offence as charged against the, accused-petitioner is not made out, as there is no evidence whatsoever on the record to prove the same. In this respect, it may be pointed out that the case against the petitioner was specifically lodged under section 411, P.P.C. As the P.W. 1 had categorically stated in his complaint, Exh.PA that the petitioner was found in possession of stolen goods, and that, therefore, the charge to be proved beyond reasonable doubt; the prosecution was legally bound to first establish that the goods recovered were stolen property and secondly to prove that the petitioner was in receipt of or in possession of the same dishonestly knowing it to be stolen property. But no evidence at all was produced to prove the aforesaid essential ingredients of the offence charged. In this respect, it may be further pointed out that no witness of the prosecution has uttered even one word in his deposition to that effect. In fact, P.W.3 and the certificate by the said witness, Exh.PC only states that the said property was that of the Pakistan Railways but at the same time had conceded that it was also available from the market after being auctioned; and even this P.W. Failed to say a word in his testimony to the effect that the said recovered property was stolen property. And otherwise too, no other documentary evidence was produced to prove that there was a complaint specifically about the theft of the recovered property. Therefore, in pursuance to the aforesaid, it is hereby held that the conviction and sentence impugned herein are not sustainable in law. In this respect, reliance is placed on'the precedents cited on behalf of the petitioner.
8. Further strength is sought in this respect from Muhammad Ali and another v. The State (PLD 1976 Lahore 28). Wherein it was held that the conviction for the offence under section 411, P.P.C. Will be bad if any of the ingredients are missing or not proved. As it was held that Section 411, P.P.C. Deals with two classes of offences; thoqc of dishonestly receiving stolen property and the other of retaining stolen property knowing it to be stolen. The prosecution, therefore, must prove that:-- (i)the accused was in possession- of stolen property; possession may be actual or constructive, (ii)he dishonestly received or retained it, (iii)he knows or had reasons to believe that it was stolen property, It was further held therein that if any of the ingredients are missing or not proved the conviction will be bad; and that according to Section 114, illustration (a) of Evidence Act the Court may presume that a man who was in possession of stolen goods soon after the theft, is either a thief or has received the goods knowing them to be stolen, unless he can account for his possession. Further reliance was placed herein on PLD 1901 Lahore 630. Wherein it was held as follows:-- "Under Section 411, Pakistan Penal Code, 1860 the mere possession of stolen property is not sufficient. 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 reason to believe the same to be stolen. The onus is on the prosecution to prove the essential elements of the offence. It is only under Section 114 of the Evidence Act that the Court may presume having regard to illustration (a), 'that a man who is in possession of stolen goods soon after the theft is either a thief or has received the goods knowing them to be stolen, unless he can account for his possession'.
The presumption arises only when the accused is found in possession of the~ stolen property soon after the theft, and he is unable to give a satisfactory account of his possession. But when the circumstances do not raise the presumption, then in the absence of any other evidence to connect the ,accused with the offence, he cannot be held guilty under Section 411, P.P.C."
9. In pursuance to what has been stated above, the present criminal revision petition is hereby allowed and the judgments impugned are set aside. Resultantly, the petitioner stands acquitted of the offence charged. He is on bail, his bail bonds stand discharged accordingly.
N.H.Q./M-370/L