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Criminal. Revision No. 860 of 1967, decided on 24th April 1968.
Absence of previous motive for false charge s---Mere relationship of witnesses inter se--‑Cannot be equated with interestedness of witnesses
S. 412 read with S. 411‑--Prosecution Jailing to prove that accused knew or had reason to believe property recovered from them to be proceeds of dacoity Conviction under S. 412 altered to that of S. 411.
Wali Muhammad v. The Stale P L D 1957 Lah. 261 fol.
Aamer Raza for Petitioners.
Mian Aslam Riaz Hussain, A. A. G. for the State.
The petitioners, namely, Pir Bakhsh, Muhammad Hussain, Ali Muhammad, Hassan Din and Muhammad Siddiq were tried along with Bashir for offences under section 395/398, P. P. C. by his order dated 4‑3‑67, the learned S. D. M. Shuja Abad convicted the petitioners under section 412, P. P. C. and sentenced them to R. 1. for three years, each. However, Bashir their co‑accused was acquitted. Their appeal (except Hassan Din) was dismissed by the Additional Sessions Judge, Multan. Hassan Din did not file appeal. They have come up in revision.
2. The prosecution case at the trial was that 'on the 'night between 20th and 21st July 1963, Ghulam Qadir and his brothers Ghulam Khan and Ahmad Khan were sleeping with their female members in the courtyard of the house situate in village Turki, Police Station Mithru. At about midnight they were awakened by the commotion inside the room and saw a torch lit there. Ghulam Qadir called out his brothers, however, he was silenced by threats by one of the dacoits, who emerged from the Kotha. One other dacoit opened fireshot in the air and three of his accomplices carried out a box containing clothes, cash and jewellery. It is said that two other dacoits went on firing, in the meanwhile. The following morning that is 21‑7‑63 the report of the incident was made at 3‑30 p.m. in Police Station Mithru, wherein the list of the stolen property was given to Muhammad Aslam S. I. (P. W. 29). On 28‑7‑63 a raiding party led by Muhammad Aslam S. I. accompanied by Ghulam Qadir (P. W. 1) arrested Ali Muhammad in Chak No. 151. From his house search the articles Exhs. P: 17 to P. 30 were recovered vide memo. Exh. P. E. witnessed by Ghulam Qadir (P. W. 1) and Sikandar Lambardar a cousin of Ghulam Qadir (P. W. 2), Allah Ditta (P. W. 13) declared hostile, Ghulam Farid (P. W. 9), and Ahmad Khan (P. W. 24), brother of Ghulam, Qadir. On 2‑8‑63 Pir Bakhsh was arrested in Chak No. 145 and the articles Exhs. P. 4 to P. 16 detailed in Exh. P. L. witnessed by Sikandar (P. W. 2), Khan Muhammad (P. W. 14), Fateh Muhammad (P. W. 15), Bahadur Khan (not produced) and the S. I,. were recovered.
Khan Muhammad is not related to the complainant. , The argu ment against him is that he is a stock witness. The same day the arrest of Muhammad Hussain, was effected and .the articles Exhs. P. 31 to P. 48, witnessed by Sikandar Muhammad. Nawai (declared hostile) Khan Muhammad, Fateh Muhammad and Inayat Ali (P. W. 16) were recovered. Against Khan Muhammad and Fateh Muhammad the argument is that they are stock witnesses, and that. Inayat Ali admitted having quarrelled with Muhammad Hussain appellant two months prior to the occur rence. Muhammad Siddiq was also arrested on Wahari Road, at about 12 noon. The articles recovered from him are P. 49 to P. 59, detailed in Exh. P. K. witnessed by Sikandar, and Shah Muhammad (P. W. 12). Hassan Din led the police to the shop of Shah Muhammad (P. W. 12). The latter produced' Exhs. 74 to 76 which were taken into possession vide memo. Exh. P. M.
3. In their statements from the dock, the petitioners denied every circumstance appearing in the evidence against them. They denied the, recovery of the stolen property from their possession and pleaded false implication due to enmity.
4. The learned trial Magistrate did not believe the identifica tion part of the evidence and acquitted all the accused perssno under the charges 395 and 398, C. P. C. The recovery of the stolen articles from Bashir co‑accused of the petitioners was also disbelieved and he was acquitted. The revision petition was admitted on a law point to which I shall advert later. The learned counsel tried to show that the evidence with regard to the recovery‑has been misread and has wrongly been relied upon by the Courts below. The learned trial Magistrate in paras. 23 to 28 has quite in detail for well‑considered reasons believed the evidence relating to the articles recovered from the respective possession of the petitioners. The ownership of the recovered property is not disputed. The question thus boils down to this, that according to the learned counsel these articles should be held to have been foisted upon the petitioners. The basis for the argument is two fold. Firstly, that the complainant is inimical to the petitioners on account of the last Elections. It is to be noted that the parties to this case were camp followers of the rival candidates, who do not figure in the case. This will be carrying the impact of that election too for to come to the conclusion that the case under disposal is the outcome of that election. In sequence to this argument the very incident must be held sham one. In coming to that conclusion it must, therefore, be assumed that there has been no dacoity and the complainant in conspiracy with police cooked up basically an incorrect story for implicating the petitioners. If it were so what stopped the complainant from naming the petitioners, in the F. I. R. and what prevented the Investigating Agency from creating a confirmatory circumstance for connecting the petitioners with the crime. One would hardly believe that the success or defeat of the party leaders should have impelled the followers to wreak vengeance on one another of the ground of election. Apart from this motive, there is nothing else on the record dovetailing into one another and pointing in the direction suggested by the learned counsel: Another improbable aspect of the matter is that the petitioners are not co‑villagers of the complainant so as to give an impression that the so‑called election differences precipitated into regular enmity. The evidence is that the petitioners inter se also belong to different places.
5. The other argument addressed in the context was that the witnesses of the recoveries are interested against the petitioners. The preceding para is a complete answer to this contention. In the absence of previous motive for a false charge mere relationship of the witnesses inter se cannot be equated with an interested witness. The fact of the matter is that an enemy off the complainant would seldom have offered to join investigation and in the event of such an offer his services for the crucial matter of recovery would have been accepted with the obvious consequence to have let down the complainant at the crucial moment. I examined evidence of recovery with great care. There are contradictions and lapses of insignificant character which are bound to be there in an exemplary genuine case keeping in view the failing of human memory and variant observation of different persons. In my view, these lapses do not cast doubt on the factum of recoveries. The inconsistencies in this regard in immaterial details, therefore, are not consequential. On the concurrent finding of fact with regard to the recoveries by the Courts below. I do not find grounds for disagreement.
6. This brings us to the law point on which the matter turns. The evidence in respect of the petitioner's complicity in the offence of dacoity was not believed. The evidence against them is of having been found in possession of tile booty of dacoity of recent occurrence. The question that falls to be determined is whether their conviction under section 412, P. P. C. can legally be upheld. A similar question arose in the case of Wali Muhammad v. The State (P L D 1957 Lah. 261) before a learned Judge of this Bench. The Darned Judge after quoting the case‑law on the point came to the conclusion:
A charge under section 41 2 of the Penal Code will not be proved by merely proving knowledge or belief that the article were stolen articles. It is incumbent on the prosecution to establish further that the accused had knowledge or belief that the possession of the articles had been transferred by the commission of a dacoity.
The above requirement of section 412 of the Penal Code cannot be proved by the presumption under section 114, illustration (a) of the Evidence Act.
When a person is found in possession of property taken in dacoity and is unable to give any reasonable (explanation for its being with him, it may be presumed that he knew the property to be stolen, but not that he knew or had reason to believe that it was the proceeds of a dacoity. In most cases of mere possession of such property, the presumption would be of the lower offence under section 411 of the Penal Code."
7. With respect I agree with the view taken in the above‑cited case and that it has not been proved by the prosecution that the petitioners knew or had reason to believe that the property recovered from their possession was the proceeds of the dacoity. Under the circumstances, their conviction is altered from sec tion 4 12, P. P. C. to one under section 411. P. P. C. and are sentenced to two years' R. I. each. The revision petition is accord ingly disposed of.
Order accordingly.
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