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Criminal Revision No. 75 of 1949, decided on 10th Decem ber 1949 against the order of Sessions Judge, Mirpur, dated the 12th October, 1949.

Penal Code (XLV of 1860), S. 411‑Guilty knowledge of accused must be established by direct or indirect evidence.

A. I. R. 1923 Lab. 340 relied on.

Ashiq Hussain, for Petitioner.

Muhammad Sharif, Assistant Advocate‑General for Government.

.----‑This is a petition for revision of an order in an appeal by the Sessions Judge, Mirpur, upholding the conviction as well as the sentence bf the petitioner under section 411 A. P. C.

The finding of the Courts below are that a dacoity took place in the house of one Fazal Elahi of village Panniam and valuable property was stolen. A report was made to the police in due course but suspicion was not cast on the petitioner. In the course of the investigation which took place very late a wooden boa was recovered from the possession of the petitioner. This was identi fied by the complainant and his, wife. The petitioner wad accordingly challaned under section 411 A. P. C.

The petitioner admitted that the box in question had been recovered from his possession, but asserted that .he had removed it from Mirpur when the town was looted, and the property of non- Muslims was taken into possession by the' looters.

The trial Magistrate found that the box belonged to Fazal Elahi and it was removed when his house was broken into and that the petitioner's defence was wrong. The trial Magistrate accordingly convicted the petitioner under section 411 A. P. C. and sentenced him to one month's rigorous imprisonment and Rs. 5 fine. On appeal the learned Sessions Judge also was of the same view and the petitioner's conviction and sentence was accordingly upheld.

It is proved on the record by the evidence of complainant, his wife and a carpenter that the box belonged to the complainant and was removed from his house when it was burgled. The only question to be tackled in revision petition is whether there is any evidence direct, or indirect, of guilty knowledge. It has been contended that to retain valuable property which does not belong to a person does not in itself prove that a person's possession is dishonest A. I. R. 1923, Lah. 340, is relied upon in that respect. The principle enunciated in the afore‑mentioned autho rity is quite correct but in this case there is indirect evidence that the possession of the accused was dishonest. The accused himself admitted that he had removed the box from Mirpur when the town was looted. In other words, he admits that at the time he came into possession of the box he knew that it was a stolen property. This part of his statement attributes to him guilty knowledge. It is true that if it be regarded that the statement made by him was wholly true, then the box cannot possibly be taken as the proceeds of theft in the house of the complainant, but I am of opinion that the defence of the petitioner is not at all true one and it cannot be believed as a whole. The prosecution can, however, take advantage of it so far as the guilty knowledge of the accused is concerned.

For these reasons I uphold the conviction of the petitioner. Considering, however, that the value of the box is not great and that the petitioner is being convicted on the stren1th of the poor defence set up by him I am not inclined to send him back to the jail. I, therefore, order that he shall suffer only the imprisonment undergone and be liable for the payment of the fine imposed on him. The revision petition is accepted to this extent and order of the Courts below are modified accordingly.

Order announced.

K. M. A. Revision Partly accepted.

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