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Criminal Appeal No. 13.D of 1967, decided on 23rd November 1967.

(On appeal from the judgment and order of the High Court of East Pakistan, Dacca. dated the 4th February 1966,in Criminal Revision No. 616 of 1965).

, S. 448-Acquittal by High Court of person accused and convicted under section-Special leave to appeal granted 6v Supreme Court to consider whether acquittal was justified.

S. 448-Absence of natural conduct i.e. physical resistance to crime by large number of person and (ii) failure to lodge report at thana close by---Complainant's version of criminal trespass, in circumstance, held unworthy of belief.

Shaukat Ali Khan, Advocate Supreme Court instructed by Abu Backkar, Attorney for Appellant.

Respondents Nos. I and 2 : In person.

A. T. Saadi, Advocate Supreme Court instructed by Daliluddin

Date of hearing : 23rd November 1967.

--Leave was granted in this case to consider whether the respondents Majibullah and Sanaullah had been rightly acquitted by the High Court, in a revision proceeding from an order of a Sessions Judge, confirming their conviction under section 448, P. P. C., by a Magistrate. The case had been instituted on complaint of offences of criminal trespass into a but used as a tailoring-cum-sweetmeat shop, and of theft of a sewing machine, shop equipment, 200 maunds of fuel-wood, etc., of the total value of Rs 2,000. Charges were framed accordingly, and the Magistrate, while holding that criminal trespass at mid night into the shop was proved, held on the same evidence that theft was not proved, for reasons such as:-

(1) two of the eye-witnesses did not see things being removed ;

(2) one eye-witness was inimical to the accused ;

(3) four e; e-witnesses could not name the persons who had removed the goods ; and

(4) one witness could not give the number of the sewing machine he claimed to own.

The learned Single Judge in the High Court set aside the conviction for criminal trespass on the ground that intention to intimidate or annoy could not be found because "at the time of the so-called unlawful occupation, admittedly the but was vacant." The prosecution complaint was that the owners of the but and shop had in the late evening, gone home after closing the shop, when it was entered by the two named accused "and 3-4 others," by breaking open the door, and the contents were removed, with light from hurricane lanterns, in the presence of seven eye-witnesses and as many as 25 others, none of whom moved a finger to stop the crime, What is more, the police station being only 100 yards away, no one went to get police aid, although the quantity of goods allegedly taken would naturally have required considerable time-halt an hour would probably be the minimum time for their removal. No attempt was made to trace the goods, and no steps were taken for their recovery. It was said, in the complaint, filed on the 19th September 1963, the occurrence being of the night between the 16th and the 17th September that the Police, on being approached, had referred the complainant to a Court. It appears the' Thana was not visited until the following morning. It was admitted that the accused persons claimed that the shop was theirs, by transfer from a relation of the complainant. .

The defence plea was that the case was false, and three defend witnesses said the accused persons had been in the shop for 4-5 years.

It clearly appears that the acquittal is justified, not because of any defect of law, but because the whole story told by theft complainant and his witness is patently unworthy of belief. Apart from the absence of natural conduct, i.e., (1) physical resistance to the crime by the large number of persons sympathetic to the complainant who had gathered on the spot, (2) failure of recourse to the Thana close by for aid, the inability to name any of the culprits except the two accused who are admittedly in possession of the shop at least since the occurrence, indicates that the matter was really of a civil nature. If indeed property worth Rs. 2,000 had been stolen, the complainant, a Hindu shopkeeper, was not the kind of man who would make no effort whatsoever to recover it.

We accordingly dismiss the appeal.

Appeal dismissed.

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