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Criminal Revision No. 238 of 1964, decided on 15th June 1964

S. 215‑Expression "unless h uses all means . . . . . to cause the offender to be apprehended"------ Benefit of exception‑Burden on accused to prove that he used all means to apprehend offender.

The expression "unless he uses all means in his power to cause the offender to be apprehended" clearly indicates the intention of the Legislature that the accused will have to shop that he used all means in his power to apprehend the offender It is not possible for prosecution to prove that he has done so. The only reasonable interpretation will be that the burden of proof in this peculiar circumstance is on the accused because it is within his knowledge as to what he did or did not do for apprehending the offender.

Once elements constituting an offence under section 215 of the Pakistan Penal Code are established by evidence, the on proving that the person charged is entitled to the benefit c exception lies on the defence. In a prosecution under section 215 of the Code it is not for the prosecution to prove the negative that the accused did not use all means in his power to cause the offender to be apprehended. It is for the defence to establish the positive fact that they did all in their power to cause the offender to be apprehended.

Arman Ullah and others v. King Emperor 37 C W N 360; Yusuf Miah v. Emperor A I R 1938 All. 440; Ramanand Teli and another v. Emperor A I R 1938 Pat. 590 and Deosuchit Rai and another v. Emperor A I R 1947 All. 225 ref.

A. K. M. Kamrul Islam for Petitioner.

Nemo for the State.

In this case a rule was issued on the Deputy Commissioner of Bogra to show cause why the conviction and sentence of the petitioner Eusuf Haji alias Haji Eusufuddin Shahana under section 215 of the Pakistan Penal Code should not be set aside.

The case for the prosecution is that the three heads of cattle were stolen away from the cow‑shed of P. W. 1 Mumtaz Ali Mondal and he became aware of the theft on the following morning and informed his neighbours. Of the stolen cattle, one bullock and one cow belonged to his domestic servant P. W. 2 Abbas Ali Sardar. It is further stated that Abbas Ali met the accused‑petitioner Eusufuddin who agreed to give indication about the stolen cattle on payment of a sum of Rs. 5. P. W. Abbas Ali informed his master P. W. 1. Both of them went to the accused and paid Rs. 5. Then the accused, in order to create belief in the minds of the P. Ws. 1 and 2 that he was actually aware about whereabouts of the cattle, gave them description of the same which tallied with the stolen cattle. The accused‑petitioner agreed to return the cattle on payment of a sum of Rs. 115. The amount was paid and the heads of cattle were recovered subsequently as settled by them. The com plainant did not disclose this to anyone as he was threatened with dire consequence is case of disclosure. The matter, however, came to the knowledge of an Assistant Sub‑Inspector of Police who visited the locality several months after the date of occurrence.

The defence case is that the petitioner is a Tuberculosis patient and was bed‑ridden. Therefore, the question of his contacting him for the purpose did not arise and that the prosecu tion case was false.

On a review of the evidence led in the case the learned Magistrate reached the following conclusion:

"From the evidence on record it is well proved that the cattle in question were stolen away from the cow‑shed of P. W. 1 and that the accused took a gratification of Rs. 115 from P. W. 1 on plea to recover the same to P. Ws. 1 and 2 without making any attempt to cause their apprehension." The learned Magistrate also believed the story of recovery as given by the prosecution. He accordingly convicted the petitioner under section 215 of the Code and sentenced him to suffer rigorous imprisonment for 9 moths.

On appeal, the learned Sessions Judge maintained the order of conviction and sentence. Mr. Qamar ul Islam, appearing for the petitioner submits that the order of conviction under section 215 of the Pakistan Penal Code is not maintainable inasmuch as the prosecution has not proved that the petitioner did not use all means in his power to apprehend the offender in the case. Section 215 of the Code is in the following terms:‑

"Whoever takes or agrees or consents to take any gratifica tion under pretence or on account of helping any person to recover any movable property of which he shall have been deprived by any offence punishable under this Code, shall, unless he uses all means in his power to cause the offender to be apprehended and convicted to the offence, be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both."

The expression "unless he uses all means in his power to cause the offender to be apprehended" clearly indicates the intention o the Legislature that the accused will have to show that he used all means in his power to apprehend the offender. It is not possible for prosecution to prove that he has done so. The only reasonable interpretation will be that the burden of proof in this peculiar circumstance is on the accused because it is within his knowledge as to what he did or did not do for apprehending the offender. That being so Mr. Islam cannot find fault with the prosecution for not proving that the accused did not try to apprehend the offender. Moreover, the Courts below have found that the accused did not make any effort to apprehend the offender. In the case of Arman Ullah and others v. King Emperor (37 C W N 360), a Division Bench of the Calcutta High Court consisting of Panckridge and Patterson, JJ. held:‑

"Once the elements of an offence under section 215 have been established by evidence, the onus of proving that the person charged is entitled to the benefit of the exception referred to above is on the defence and in the present case no such defence was sought to be raised or established."

In the case before me the petitioner did not raise any defence to the effect that he made all efforts to apprehend and to bring the offender to the book.

To the same effect is the decision in the case of Yusuf Miah v. Emperor (A I R 1938 All. 440). In that case it was held that in a charge under section 215, the burden of proving that the accused had used all the means in his power to bring about the apprehension of the offenders is upon him. In the case of Ramanand Teli and another v. Emperor (A I R 1938 Pat. 590), it was held that once elements constitution an offence under section 215 had been established by evidence, the onus of proving that the person charged was entitled to the B benefit of the exception was on the defence. In the case of Deosuchit Rai and another. v. Emperor (A I R 1947 All. 225), it was held that in a prosecution under section 215 of the Code it was not for the prosecution to prove the negative that the accused did not use all means in his power to cause the offender to be apprehended. It was for the defence to establish the positive fact that they did all in their power to cause the offender to been apprehended.

I am, therefore, of opinion that this contention of the learned Advocate is of no substance.

The only other point pressed by the learned Advocate is that the prosecution was instituted after the delay of several months. The learned Magistrate in considering the question of delay observed as follows:

"P. Ws. 1 and 2 have stated that the accused threatened them with evil consequences if they ever disclosed this fact to any one else. That is why they did not report the matter to the police. This is quite a reasonable explanation for delay in reporting the occurrence to the police."

I find no reason to dissent from the view taken by the trial Court in this behalf. In the facts and circumstances of the case, I am, however, of opinion that the ends of justice will be met if the sentence of the petitioner is reduced from rigorous imprisonment for 9 months to 6 months and I order accordingly. No other point having been pressed before me, the Rule is discharged with the modification of sentence as indicated above.

K. B. A. Rule discharged with certain modifications.

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