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Criminal Appeal No. 344 of 1964, decided on 8th March 1967.

‑Burden to establish case in respect of a charge by substantial and independent evidence and beyond reasonable doubt‑Lies always on prosecution.

, S. 412‑Stolen property‑. Mashirs of recovery, only witnesses in case, not supporting prosecution story‑Charge under S. 412, held, cannot be established on mere word of Investigating Officer‑Conviction and sentence set aside.

Azizullah Shaikh for Appellants.

Nooruddin Sarki, A. P. P. for the State.

Date of hearing : 8th March 1967.

The two appellants, who are brothers, are aggrieved by their conviction by the learned Additional Sessions Judge, Jacobabad under section 412, P. P. C. sentencing each one of them to seven years R. I. and to a fine of Rs. 200 in default further R. I. for one year. These two appellants with four others, were charged with offences punishable under sections 394, 397, 342, 148 and 149, P. P. C. In addition, they two with Beero accused, were also charged under section 412, P. P. C. and appellant Muhammad Ali alone for an offence under section 19-E of the Arms Act. The other co‑accused with these appellants were acquitted of all the charges.

2. On the night between the 29th and the 30th of September 1963, in the early hours of the morning, an armed dacoity was committed in the P: W. D. bungalow of Jehan Shah, which was occupied by several Darogahs and Beldars, of whom Lal Muhammad the first informant, P. W. 7 was one. A friend of Lal Muhammad, Nazar Muhammad also lived with them and the prosecution case is that the two appellants accompanied by four others armed with guns, lathis and hatchets, came to the scene and looted a room in the bungalow of the complainant, containing the belongings of the occupants, caused hurt in the course of committing dacoity to the first informant Lal Muhammad and confined him and others in a room of the bungalow. Appellant Muhammad Ali was alleged at the time to be armed with an unlicenced gun. The prosecution case further is that some of the complainant's party were sleeping on the ground floor of the bungalow, and some upstairs. When the party of the accused armed with weapons raided the bungalow, some of them kept guard over the persons sleeping on the ground floor, whilst the others went upstairs, that it was a moonlit night and the faces of the dacoits were visible, that the complainant's party were tied and handed into a room which was bolted from outside. Entrance by the dacoits into the room was made by breaking open the glass panes of the doors and windows, and it is also stated that the golden wallis or ear‑rings which andal and Dadlo of the complainant's party were wearing, were removed by the accused. The looted property also consisted of a radio. After the dacoits had left, one of the complainant's party managed to free himself and inform his S. D. O. Later a first report was lodged with the Mouladad P. S. 12 miles from the scene. In the course of the investigation, most of the stolen property is said to have been recovered from the possession of some of the accused.

3. The defence was that the accused had been involved due to enmity, that they were shown to the prosecution witnesses before the identification tests were held, that some of them were known to the prosecution witnesses before the tests and that the recovery of the stolen property from some of the accused was a false allegation.

4. The learned Additional Sessions Judge framed five points for determination and ultimately concluded that only the present appellants were guilty of being in possession of stolen property, and accordingly convicted them under section 412, P. P. C.

5. There is no doubt that an armed dacoity was committed in Jehan Shah's bungalow at the time and place stated by the prosecution, in the course of which Lal Muhammad received six injuries which have been testified to by Dr. Fazal Ahmad P. W. 2. This read with the evidence of Nazir Hussain P. W. 3 (Exh: 8) who is the mashir of the scene that glass panes of the doors of the bungalow had been broken, and a lock was found in a broken condition after the dacoity with footprints of six persons supports the contention. of the plaintiff's. as to the fact of the dacoity being committed.

6. The prosecution evidence against these two appellants and the other four accused consisted of the ocular evidence of the prosecution witnesses and the recovery of some of the stolen property from the possession of these two appellants.

7. In discussing the ocular evidence the learned Addi tional Sessions Judge expressed himself in the following terms:

"In view of these facts and circumstances the identification of the accused Muhammad AM, Azim, Beero and Habibullah has no sanctity left to be given any credence. Therefore, my conclusion is that in so far as the identification of the accused by the witnesses is concerned, it being of worthless nature; cannot link any of the accused with the offence of dacoity and, therefore, my finding is in the negative o[' all points, ie. on issues 2, 4 anti 7;"

8. Point No. 6 refers to what stolen property was recovered from any of the accused and if so what offence they had com mitted. In discussing this evidence the learned Additional Sessions Judge observed that the various articles of stolen property were recovered from the house search of the present two appellants. It was the prosecution case that this house was jointly occupied by both the appellants, that only Azim was present at the time of the recovery, that Muhammad Ali came after the search had been completed, but on a search of his person, four golden. Wall is belonging to P. Ws. Andal and Dadlo and a wrist watch of Lal Muhammad complainant were recovered. These recoveries from the appellants were witnessed by two mashirs Jan Muhammad and Raza Muhammad. Jan Muhammad P. W. 5 (p. 27) turned hostile to the prosecution and denied being a mashir of the search of the joint house of these two appellants, further stating that he had only thumb marked a blank piece of paper at Amirabad, that he did so in his house at the request of the Police and in cross examination to the learned A. P. P. who sought permission after declaring this witness to be hostile, stated that no search had been made of the house of the appellants, nor was it a fact that one of the accused Sarang had pointed out this house, and Raza Muhammad the other mashir who was a friend of his who also lives in Amirabad, that he did not know the accused and that he and Raza Muhammad were chowkidars at a bungalow of a common Zamindar, where the Police party had encamped for 4 or 5 days during the course of the investigation.

9. The mashirnama Exh. 15, which has not been supported by this witness, gives a detailed list of the property alleged to have been secured from these two appellants. P. Ws. Jan Muhammad and Raza Muhammad were also witnesses to Exh. 33, which is a mashirnama of the securing of a rolled gold Roamer watch and gold wall' from the person of appellant Muhammad Ali alleged to have been hidden in the folds of his loin cloth. Considering that Jan Muhammad had not supported the prosecution case on this sole aspect against the two appellants, it will be seen that there was no other evidence supporting the prosecution as to the securing of the stolen property from them, the other mashir Raza Muhammad having been given up by the learned A.P.P. by his statement which was made on the same day, namely, the 25th of June 1964 on which date Jan Muhammad was examined, and did not support the prosecution case. In these circumstances, the learned counsel for the State; Mr. Noordin Sarki, does not support the conviction of the appellants, as this is a case of no evidence against them and there being no independent evidence to support the prosecution circumstance that any stolen property was recovered from the possession of, these two appellants. The‑learned Additional Sessions Judge had signed‑a blank piece of paper without inquiring why it was sought of him to do so. The place where the mashirnama was prepared is situated in the village of Amirabad, and it has not been shown that it was difficult for the investigating Officer to find other s mashirs in the village. On the sole statement of the S.H.O. Barkhurdar, the Investigating Officer, the trial Court concluded that the recovery of the stolen articles from these two appellants had been established. The learned Additional Sessions Judge

on this aspect went on to state thus

Although I concede that these recoveries are not supported by the mashir P.W. Jan Muhammad I cannot imagine that such " huge property was foisted by the police on the accused without any reason or rhyme. In my view, therefore, it is proved that the stolen property was found from the possession of both Azim and Muhammad Ali accused. They of course denied the recovery. The property bad been properly identified by the prosecution witnesses to be the same property belonging to them which had been looted in the dacoity, which was not challenged. Mere denial by the accused of the recovery of the said property would not and could not explain their possession of it.

I regret I cannot agree with these observations of the learned Additional Sessions Judge. The burden always lies on the prosecution to establish their case in respect of a charge by substantial and independent evidence and beyond reasonable doubt. The only two witnesses, independent as they should be considered to be, were the two mashirs of the recovery of the stolen articles from these two appellants. They did not support the prosecution and on the mere word of the Investigating Officer E it can hardly be said that the charge under section 412, P. P. C. has been established against the appellant. The State does not support the conviction quite rightly.

I, therefore, allow the appeal, and set aside their conviction and sentences. The appellants are on bail. Their bail bonds are cancelled:

Appeal allowed.

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