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(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 8th January 1970, in Criminal Revision No. 743 of 1968).

Evidence Act (I of 1872),

S. 114, illus. (a)‑Burden of proof‑Petition for leave to appeal time‑barred and explanation for delay not convincing‑Petitioner charged for being in possession of stolen article, immediately after commission of offence not discharging onus of accounting for his possession of stolen article‑Peti tioner's conviction, held, rightly maintained by Courts below Petition for leave to appeal dismissed‑Penal Code (XLV of 1860), S. 379.

Dr.Aleem‑ul‑Razee, Advocate Supreme Court instructed by Abdur Rab II, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 17th June 1970.

HAMOODUR RAHMAN, C. J.‑

The petitioner was tried and convicted under section 379 of the Pakistan Penal Code for the theft of a bicycle and sentenced to suffer rigorous imprisonment for two years.

The prosecution case against him was that he was caught red‑handed riding away on the bicycle of the complainant. He was chased for a distance by the complainant and two others on bicycles but they could not overtake him. Then they got into a jeep, followed him, caught hold of him along with the bicycle and took him to the police station.

His defence was that he had taken the bicycle under a genuine mistake believing it to be his own Raleigh cycle. The cycle which he was caught riding, however, was a BECO cycle.

Since he was caught red‑handed in possession of the stolen cycle immediately after the theft, the onus was upon him to account for the possession of the cycle under section 114, illustration a' of the Evidence Act. The trial Court was, therefore, right in placing this onus upon him.

His conviction has been upheld on appeal by the Additional Sessions Judge of Mymensingh and the High Court has refused to interfere in revision.

The petition for special leave is also barred by 15 days and the only explanation for the delay is that a letter written by the clerk of the petitioner's counsel on 10th March 1970, asking him to come to Dacca immediately with necessary funds for filing the petition for special leave did not reach him till the 16th March 1970. But even so, he could not collect the necessary funds till the 24th of March 1970, and then he was prevented from coming to Dacca by reason of the transport strike on the Dacca‑Tangail route until the 31st March 1970. The petition was filed on the 2nd of April 1970.

We are not at all satisfied with this explanation, for, there is no evidence on the record to show that the letter was actually received by him on the 16th March 1970 or that there was any transport strike on this particular route from the 10th of March 1970 to the 30th of March 1970.

On merits also, there is no substance in this petition. The only point argued by the learned counsel, appearing in support of the petition is that the onus was wrongly placed upon him. As already pointed out, the onus to account for his possession was rightly placed upon him according to law. He cannot make any grievance of that.

In the circumstances, the petition is dismissed both on merits as also on the ground that it is barred by limitation.

Petition dismissed.

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