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Criminal Revision No. 142 of 1967, decided on 19^th December 1967.

S. 379‑Theft‑Non- consideration of evidence in support of possession‑Accused alleged to have cut and removed bamboo plants from land of complainant‑Accused pleading joint possession of disputed land Trial Court convicting accused under S.379 without properly considering question of possession‑Lower appellate Court also summarily rejecting oral evidence and documents in support of joint possession of accused stating "the question of accused being co‑sharers is not to be looked into within the scope of this case" Non‑consideration of such evidence, held, seriously prejudiced defence‑Conviction under S. 379, in circumstances, set aside.

Md. Habib Ahmed for Petitioner.

Nemo for the State.

This application challenges the legality and propriety of the conviction of the petitioners under section 379, Pakistan Penal Code and the sentence of rigorous imprisonment for three months each passed on them by the learned Magistrate and upheld by the learned Additional Sessions Judge, Sylhet in appeal.

2. The prosecution alleged that on 18th Aswin, 1371 B. S. the petitioners cut and removed about 4 bunches of plantain, 50 bamboos and 4 planks belonging to the complainant from the latter's possession. The defence was that the disputed land was in joint possession of both the parties.

3. Mr. Md. Habib Ahmed, learned Advocate for the petitioners urges in the first place that the Courts below did not at all consider the bona fide claim of right of the petitioners in the subject of dispute and that they misread the evidence of D. Ws. 1 and 2 leading to wrong conclusion. He further argues that the trial Court and the Court of appeal below did not take into consideration the documentary evidence consisting of Exhs. A and B.

4. There is substance in all the points canvassed on behalf of the petitioners. It is manifest from a perusal of the judgments of both the Courts below that the petitioners raised a question of bona fide claim of right contending that the disputed property is joint property of both parties in their joint possession. This aspect of the case has not been considered in proper perspective.

5. The learned Additional Sessions Judge summarily rejected the evidence of D. Ws. 1 and 2 in the following words :‑

"The defence version has been attempted to be proved by the two witnesses, vii. D. Ws. 1 and 2. They do not prove that the accused persons had possession in the disputed land. The question if the accused persons were co‑sharers is not to be looked into, within the scope of this case."

6. It is rather unfortunate that the learned Additional Sessions Judge did not discuss the evidence of D. Ws. 1 and 2. I have looked into their evidence and find that D. W. 1 who is a cousin of the petitioners, as well as the complainant stated in his evidence that Ahmed Ali has been living in the vacant land, i.e. the disputed land for the last 15 years and he grows vegetables on the disputed land and P. W. 1. constructed a but thereabout two years back. Similarly D. W. 2 deposed that the disputed land is in joint possession of the petitioners and the complainant. A mere look at the evidence by the Court of appeal below would have shown that D. Ws. 1 and 2 have testified to the petitioners' possession of the land in question. It is a gross misreading of evidence on his part to come to a summary finding that D. Ws. 1 and 2 have not proved possession of the petitioners.

7. The judgment of the lower appellate Court is itself of summary nature and does not discuss any evidence. It is correct to say that Exhs. A and B have not all been considered by that Court. Exh. A is a kabala showing purchase of the disputed land by the predecessors of the complainant and the petitioners while Exh. B is a rent receipt showing payment of rent by petitioner No. 1. These are documents of vital importance and non‑consideration of such documents cannot but be held to have seriously prejudiced the defence.

I accept all the grounds pressed by the learned Advocate for the petitioners and make the rule absolute. The conviction and sentences of the petitioners are hereby set aside.

Rule made absolute.

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