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Criminal Appeal No. 768 of 1960, decided on 20th April 1961.
S. 411‑Ingredients‑Evidence Act (1 of 1872), ,S'. 114, illus. (a).
Under section 411, Pakistan Penal Code, 1860 the mere posses sion of stolen property is not sufficient. In addition it has got to be established that the person in possession of the stolen property had dishonestly received or retained the property know ing or having reason to believe the same to be stolen. The onus is on the prosecution to prove the essential elements of the offence. It is only under section 114 of the Evidence Act that the Court may presume having regard to Illustration (a), "that a man who is in possession of stolen goods soon after the theft is either a thief or has received the goods knowing them to be stolen, unless he can account for his possession". The presumption arises only when the accused is found in possession of the stolen property soon after the theft, and he is unable to give a satis factory account of his possession, But when the circumstance's do not ' raise the presumption, then in the absence of any other evidence to connect the accused with the offence, he cannot be held guilty under section 411, P. P. C.
S. 114 ‑Private persons, not entitled to raise inferences as to existence of facts specified in S. 114
Ss.5B‑When private person may arrest an offender:
In judging whether a cognizable and. non‑bailable offence is‑ being committed in his view, within the scope of section 59 of the Code of Criminal Procedure, a private person is not entitled to embark on a process of reasoning and then with the aid of presumption of law and of facts to reach the conclusion that such is the case. This is the function of a judicial tribunal and not of a private individual. A private person has to act on what lie sees, and if tie finds that such an offence is being committed in his view, then he is empowered to arrest the offender. But if he has merely reasonable suspicions about the commission of such an offence, then, in that case, he is not legally entitled to arrest the offender.
S. 54‑--When police officer may arrest without warrant.
A Police Officer can arrest a person without a warrant in the exercise of his powers under section 54 of the Code of Criminal Procedure, if a. reasonable suspicion exists that he is concerned in a cognizable offence, but a private person has no such powers.
Karam Elahi Chauhan for Appellants.
Zahir Abbas for Respondent.
Dates of hearing : 11th and 12th April 1961,
Khan aged 35 years; his cousin Painda son of Shera, aged 30 years, Ahmad Khan aged. 30 years, and his brother Painda aged 28 years, sons of Ghulam Harder were tried by the Additional Sessions Judge, Jhelum, under sections 302/34, ‑125/34 and 323/34, P. P. C. for having intentionally caused the death of. Raja deceased and for having caused grievous injuries to Muhammad Khan (P. W. 10) and Bahawala (P. W. 11) and simple injuries to Muhammad‑ Khan and Shera P. Ws. on the night between the 13th and 14th of February 1960 at about sehri time in the area of village Dhudhi Phaphra. The learned Additional Sessions Judge convicted Khan and Painda son of Shera accused under section 304, Part I, P. P. C. and sentenced them to five years' rigorous imprisonment each. He also convicted Painda son of Shera accused under section 323, P. P. C. and sentenced him to six months' rigorous imprisonment. He convicted Painda, son of Ghulam Haider accused under section 325 P. P. C. and sentenced him to two years' rigorous imprisonment. Ahmad accused was convicted under section 323, P. P. C. and was sentenced to six months' rigorous imprisonment. The sentences of Painda son of Shera accused were ordered to run concurrently. The convicts have appealed against their convic tions and sentences.
2. The case for the prosecution was that Shera (P. W. 6) had purchased some timber from one Mahbub Elahi of Bhera. The timber was lying at village Bhagowal. On the t 3th of February 1960 Shers P. W., accompanied by his son, Vluhammad Nawaz, Hayat.(P. W. 9) and three camelmen Sohnda. (P. W. 7), Abdul (P. W. 8) and one Painda, went to village Bhagowal and after loading the timber on three camels left Bhagowal at sotewela for his village Dhudhi Phaphra. When the party reached at a distance of about 100 karams from the abadi of village Dhudhi Phaphra, they were held up by the four accused and Allah Ditta. Dalli, Nazra, Jahana and Muhammad. They were all armed with dangs. Shera P. W. tried to assure the accused and their companions that the timber was not stolen property, but they refused to believe him and unloaded the timber. They also made Sliera and his companions sit at the spot. It appears that in those days timber had been drifting in the area of village Qamar which falls in between Bhagowal and Dhudhi and people used to remove the timber. The police and the forest officials had, therefore, proclaimed everywhere that in case anybody was found removing the drifted timber, he should be held up and information conveyed to the police at once. Presumably the accused held up Shera P. W. and his companions, thinking that the were transporting the drifted timber. After the timber had been unloaded, Allah Ditta, Dalli, Nazra, Jahana and Muhammad went away from the spot. At about sehri time, Raja deceased, maternal‑uncle of Shera P. Ws. Muhammad Khan (P. W. 10) and Bahawala (P. W. 11) came to the spot and assured the accused that Shera P. W. had purchased timber and that they should not infere in its removal to the village. The accused were; however, adamant. In the course of the talk Painda son of Shera accused abused Raja deceased and in return the deceased and Muhammad Khan abused the accused The four accused then attacked the deceased and his companions. Painda son of Ghulam Haider, and Ahmad Khan accused Attacked Muhammad Khan P. W. with their dangs. Painda son of Shera, and Khan accused gave one dang blow each on the head of Raja deceased, on the receipt of which he fell to the ground and Khan accused then gave another dang blow on his back while he was lying on the ground. When Shera P. W. tried to intervene, Painda son of Shera, accused gave him a dang blow on his left forearm, Painda son of Ghulam Haider, gave a dang blow on the left forearm of Muhammad Khan resulting in the fracture of both the bones under neath. Ahmad accused then gave a dang blow on his upper arm. He then fell down and Painda son of Ghulam Haider gave a dang blow on his back and Ahmad accused gave him two dang blows on his left thigh while he was lying on the ground. Whein Bahawala P. W. tried to rescue him, he was given a dang blow by Painda son of Ghulam Haider accused on his right hand, as a result of which his fifth metacarpal bone was fractured. In the meantime, the witnesses raised a hue and cry and the four accused, after inflicting injuries on the complainant party, went away in the direction of the village. After the accused had left the place, it was found that Raja had become unconscious. Mayat P. W. then brought a charpoy from the village and after placing Raja on the charpoy he was taken to his house. Shera P. W. then sent his son Muhammad Nawaz to Muhammad Ali Sarbrah Lambardar who on return informed Shera that the Lambardar had suggested that Raja should be taken to Civil Hospital, Pind Dadan Khan. Raja was then taken to the Civil Hospital, Pind Dadan Khan. In the meantime Shera P. W. returned to the spot.
3. On the night of the occurrence, Sub‑Inspector Shahzada Tabawar 2;aman (P. W. 13) was camping at Azampur at a distance of about four miles from village Dhudhi Phaphra. LAI Khan, uncle of Ahmad Khan and Painda sons of Ghulam Haider accused, contacted the Sub‑Inspector on the morning of the 14th of February 1960 at .6 a. m., and informed him that they held up a party carrying the drifted timber. The Sub‑Inspector deputed Mosahib Khan, Head Constable (P. W. 12) to the spot. On reaching the spot, the Head Constable recorded the statement, Exh. P. B., of Shera P. W. He prepared his injury statement and sent him for medical examination. On the same day, Bahawala P. W. appeared before him at 12 noon and after preparing his injury statement he sent him for medical examination. When the Head. Constable reached the spot he found the four accused pre sent there as also the timber and the camels. He took the limber into possession ride memo. Exh. P. N. a copy of which is Exh. P. N./1 (the original is on the file of the Criminal Case State v. Shera and others under section 411, P. P. C). He also took into possession the three camels. He did not find any marking on the timber. It appears that a case under section 411, P. P. C. was registered against Shera and his companions. On the basis of the statement, Exh. P. B. of Shera P. W., a case was registered against the accused under section 325/34, P. P. C. Raja deceased, who was admitted in the Civil Hospital, Pind Dadan Khan on the 14th of February 1960 at 11‑45 a.m., died at 8 p.m. that evening. The doctor sent the ruqqa Exh. P. D., to the police which was received by Muharrir Head Constable Sher Baz (P. W. 5). He went to the hospital and after preparing the injury statement and the inquest report sent the dead body to the mortuary for postmortem examination. On the receipt of the post‑mortem report, the offence was changed to one under section 304, Part I, read with section 34, P. P. C. The Sub -Inspector then arrested the four accused and after investigation sent them up for trial.
4. Doctor Muhammad Saeed (P. W: 1) noted the following injuries on the person of Raja when he was admitted in the hospital at 11‑45 a. m. :‑
(1) A contused wound, 1 " x " x scalp deep, oblique, over left parietal region of the head, situated, over swelling. 4" x 3".
(2) A swelling 4" x 3", over the right temple just above the right ear.
(3) A contusion, 3" x 1 ", over the back of right temple arm‑pit oblique.
Raja was in a state of unconsciousness with stertorous breathing at the rate of 14 per minute. After his death the doctor perform ed the post‑mortem examination on the 15th of February 1960 at 10 a. m. He found the same injuries on his body which he had noted earlier. On dissection, he found extravasated clotted blood underneath the scalp, more so on the left and right side of the head under the two head injuries. He found fissured fracture of left occipital bone, 3" in length joining horizontally with another fissured fracture of left temporal and parietal bones extending up to the suture of parietal with frontal vertical, 5" in length. There was a depressed fracture of right occipital bone, '3" is length, just behind the tempro‑occipital suture which .was separated. Death in the opinion of the doctor was the result of shock and compression of the brain due to infra‑cranial haemorrhage and fracture of the skull bones. The doctor further expressed, the opinion that the head injuries were sufficient in the ordinary course of nature to cause death.
5. The same doctor examined Muhammad Khan P. W. on the 14th of February 1960, at 12‑15 noon, and found the following injuries on his person : ‑
(1) A contusion, 2 " x 1", transverse, over the back and lower‑third of left forearm, " above the left wrist‑joint. There was fracture of both the bones underneath.
(2) A contusion, 1" x ", oblique over the dorsum of left hand, 1" above the left wrist‑joint.
(3) A contusion, 9" x " over the outer aspect of left thigh, longitudinal.
(4) A contusion, 4" x ", oblique, over middle outer part of left thigh.
(5) A contusion, 5" x " oblique, across the back of chest.
Injury No. 1 was grievous, whereas the rest of the injuries were simple. All the injuries were caused with a blunt weapon.
6. The same day he examined Shera P. W. and found a contusion, 3" x " on the front of left wrist‑joint. The injury was simple and was caused with a blunt weapon.
7. He examined Bahawala P. W. on the 16th of February 1960, at 10‑15 a. m., and found a swelling, 3" x 3 " over the dorsum of right hand. There was a fracture of fifth metacarpal bone near the metacorpo‑phalangeal joint. The injury was grievous and was caused with a blunt weapon.
8. At the trial 13 witnesses were examined in support of the prosecution case. The accused denied having attacked the deceased or the injured P. Ws. They suggested that the raob which had collected at the place of occurrence had caused injuries to the deceased and the injured P. Ws. when they had tried to rescue Shara and his five companions and to remove the timber forcibly.
9. The learned Additional Sessions Judge accepted the prosecution case as true and convicted and sentenced the accused as mentioned above.
10. Learned counsel for the appellants has urged that it is not established beyond doubt that the accused had attacked the deceased and the injured P. Ws. Except for the statements of the accused that in fact the mob which had collected at the spot had attacked the deceased and the injured P. Ws. there is nothing on the record in support of this suggestion, and, in the, circumstances of the case, I am not prepared to accept it.
11. The case for the prosecution rests on the evidence of Shera (P. V . 6), Sohnda (P. W. 7), Abdul (P. W. 8), Hayat (P. W. 9), Muhammad Khan (P. W. 10) and Bahawala (P. W. 11). They have stated that the four accused had attacked the deceased and Muhammad Khan, Bahawala and Shera P. Ws. Out of these witnesses. Sohnda (P. W. 7), Abdul (P. W. 8) and Muhammad Khan (P. W. 10) are completely independent and disinterested witnesses. In fact, Muhammad Khan P. W. is a near relation of the accused. There is nothing on the record to show that he bore any ill‑will against any of the accused. It is no doubt true that Sohnda P. W. has stated that Painda son of Ghulam Haidor was one of the assailants of Raja deceased. This of course is not consistent with the prosecution case, according to which Painda son of Shera had attacked him. But it may be that Sohnda P.W. was standing at some distance when the attack was going on and in the confusion of the moment he may not have noticed as to who out of the two Paindas had attacked Raja deceased. The evidence of the other eye‑witnesses is, however, unanimous that it was Khan and Painda son of Shera accused who had attacked Raja deceased. Similarly, they are unanimous that Ahmad Khan and Painda son of Ghulam Haider, had caused injuries to Muhammad Khan and Bahawala P. Ws. They are also unanimous that Painda son of Shera had given a dang blow to Shera P. W. Shera, Hayat and Bahawala P. Ws. are related to each other and there was some dispute between the parties more than fifteen years ago, but 1 do not think that these P. Ws. could have falsely implicated the four accused on that account. I have already pointed out that the camelmen, and Muhammad Khan P. W. have also supported the prosecution case. I am, therefore, satisfied that the four accused had attacked Raja deceased and Muhammad Khan, Shera, and Bahawala P. Ws. in the manner as is alleged by Shera, Abdul, Hayat, Muhammad Khan and Bahawala P. Ws.
12. Learned counsel for the appellants has next contended that Shera P. W. and his companions had committed an offence under section 411, P. P. C. in the view of the accused, and conse quently having regard to the provisions of section 59 of the Code of Criminal Procedure they were within their rights to arrest Shera P. W. and his companions and to seize the timber. Section 59 of the Code of Criminal Procedure provides that "any private person may arrest any person who in his view commits a non‑bailable and cognizable offence, or any proclaimed offender, and without, unnecessary delay, shall make over any person so arrested to a police officer, or, in the absence of a police officer, take such person or cause him to be taken in custody to the nearest police, station". The question arises whether in the circumstances of the present case Shera P.W. and his companions had committed any non‑bailable and cognizable offence within the view of the accused. Learned counsel for the appellants has argued that there' was no marking on the timber and there is no reliable evidence on the record to show that Shera P. W. had in fact purchased the timber from Mahbub Elahi off' Bhera. Therefore, he maintains that the timber which Shera P. W. and his companions were taking was stolen property. He has placed on this record a copy of the judgment whereby Shera and his companions were convicted by Sh. Abdur Rahman, Magistrate 2nd Class, Pind Dadan Khan, under section 411, P. P. C. and sentenced to two months' rigorous imprisonment each. After the arguments had been concluded in this appeal, the learned counsel for the appellants, however informed me that on appeal Shera and his companions have been acquitted. In my opinion, the conviction of Shera P. W and his companions under section 411, P. P. C., has no bearing on the decision of this case. Assuming for the sake of argument) that Shera P. W. had not purchased the timber from Mahbub Elahi of Bhera, and could not satisfy the accused that he had[ acquired possession of it in a bona fide manner, the question which requires consideration is whether Shera P. W. and his companions had committed any offence under section 411, P. P. C. in the view of the accused. Section 411, P. P. C. provides that "whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the same to be stolen property, shall be punished with imprisonment of either description for a term which IA may extend to three years, or with fine, or with both". Surely' Shera P. W. and his companions had not received the timber in the presence of the accused. They were undoubtedly in possession of the timber when the accused had caught hold of them. Under section 411, P. P. C. the mere possession of the stolen property is not sufficient. In addition to it, it has got to be established that the person in possession of the stolen property had dishonestly received or retained the property knowing or having reason to believe the same to be stolen property. The onus is on the prosecution to prove the essential elements of the offence. It is only under section 114 of the Evidence Act that the Court may presume having regard to Illustration (a), "that a man who is e to possession of stolen goods soon after the theft is either a thief' or has received the goods knowing them to be stolen, unless he can account for his possession". The presumption arises only when the accused is found in possession of the stolen property soon after the theft, and is unable to give a statisfactory account of his possession. But when the circumstances do not raise the presump tion, then in the absence of any other evidence to connect the accused with the offence, he cannot be held guilty under section .411 P.P.C.
13. It now remains to be considered whether private persons are entitled to raise such presumption. Section 114 of the Evidence Act empowers only the Courts to raise inferences as to the existence of facts specified therein. There is no provision of law under which a private person is entitled to raise such interference.
If this view is correct, which as at present advised, I see no reason to, doubt, then the accused in the instant case were not entitled to reach the conclusion that the timber belonged to the Forest Department ; 'that it was drifted timber ; that it was acquired dishonestly ; and that the persons in possession of it knew or had reason to believe that it was stolen property. In judging whether a cognizable and non‑bailable offence is being committed in his view, within the scope of section 59 of the Code of Criminal Procedure, a private person is not entitled to embark on a process of reasoning and then with the aid of presumption of law and of facts to reach the conclusion that such is the case. This is the function of a judicial tribunal and not of a private individual: A private person has to act on what he sees, and if he finds that such an offence is being committed in his view, then he is empowered to arrest the offender. But if he has merely reasonable suspicions about the commission of such an offence, then, in that case, he is not legally entitled to arrest the offender. A police officer can of course arrest a person without a warrant in the exercise of his powers under section 54 of the Code of Criminal Procedure, if a reasonable suspicion exists that he is concerned in a cognizable offence, but a private person has no such powers.
It is true that as admitted by Sub‑Inspector Shahzada Tahawar Zaman, the police and the forest officials had proclaimed that private persons could arrest a person removing drifted timber. But no, such order has been placed on the file, and it is not clear under what circumstances such a proclamation was made. In any case, I think that what was really meant was that if anybody was found removing timber from the bank of the river, he could be arrested, and not that if a person was found in possession of timber miles away from the river bank, then also he could be arrested by a private person.
After a careful consideration of the facts of the case, I have reached the conclusion that the accused had no right to arrest Shera P. W. and his companions or to seize the timber.
14. It is also contended that Shera P. W. and his companions were liable under Martial Law Regulations Nos. 8 and 15 and consequently the accused could. have arrested them. These Regulations read as follows :‑
Regulation. No. 8 :
"No person shall wilfully damage public property or property which is employed for the maintenance of public services or of supplies to Pakistan Forces or to the civil popula tion. Maximum penalty death."
Regulation No. 15
"No person shall damage, tamper with or interfere with the working of roads, railways, canals, aerodromes, telegraph, telephone, wireless installations or with any other Government property. Maximum punishment death."
It will be seen that these Regulations have no application to the facts of the present case. From the language used in these Regulations it is obvious that they apply to different sets of circumstances. Besines, I think that these offences do not fall within the ambit of section 59 of the Code of Criminal Procedure.
15. On the facts of the present case, the question whether the accused were entitled to arrest Shera P. W. and his companions or to seize the timber is only of academic interest, because the accused had detained Shera P. W. and his companions and had seized the timber at about midnight and the occurrence had taken place a few hours later in entirely different circumstances. Raja deceased and Muhammad han and Bahawala P. Ws. had come There at about sarghiwela. They merely tried to convict the accused that Shera P. W. had honestly acquired the timber and in the course of the talk the accused flared up and one of them abused Raja deceased, and he and Muhammad Khan P. W. then returned the abuse, upon which the attack was launched by the four accused. The suggestion that they wanted to rescue Shera and his companions and to remove the timber forcibly is not borne out by any evidence on the record. If the deceased and his companions wanted to rescue Shera and his companions and to take away the timber forcibly they would have certainly come heavily armed and would have attacked the accused party. But it is important to note that they are not alleged to have caused any injury to anyone. It is not even alleged that they were armed. It is, therefore, obvious that they had not come to rescue Shera P. W. and his companions and to remove the timber forcibly. They had merely come to plead with the accused and to request them to release the timber and Shera P. W. and his companions.
16. For the reasons stated above, I am satisfied that the accused have been rightly convicted for the offences of which they have been found guilty by the learned Additional Sessions Judge. The sentences awarded to the accused in the circum stances of the case are not severe and I accordingly dismiss this, appeal. Ahmad Khan accused, who is on bail, should be re arrested and required to undergo the unexpired portion of his sentence.
K.M.A. Appeal dismissed
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