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Criminal Appeal No. 503 of 1961, decided on 20th February 1962.

S. 517‑Accused tried under S. 411, Penal Code (XLV of 1860) and convicted but let off in appeal on benefit of doubt‑Seized articles delivered to accused Articles, however, for which complainant or accused unable to establish ownership‑To remain in custody of Court till right thereto established in Civil Court.

Joharilal Debisahai Agarwal v. Emperor (1949) 50 Cr. L J 104 rel.

Abdul Aziz for Appellant.

A. H. Mirza for the Complainant.

Ahmadur Rahman Khan for the State.

This is an appeal under section 520 of the Code of Criminal Procedure against the order of Mr. K. Rahman Khan, Sessions Judge, Rajshahi, dated the 26th August 1961 directing that the articles seized from the house of accused‑appellant be returned to the complainant.

2. The facts appear to be that one Md. Azahar Hussain of Huzrapur, a dealer in wool, lodged an information at Nawabganj Police Station on 15‑11‑59 that some unknown thieves broke into his dwelling but and stole away articles mostly wool of his shop and 4 other pieces of articles, namely, a gaberdine serge of 3 yards one old wrapper, one old serge shirt and a leather suit‑case. The police on 17‑11‑1959 searched the house of Mst. Khaleda Khanam, wife of appellant and seized as many as 17 pieces of articles including wool meant for sale.

3. On those facts the appellant was put on trial under section 411 of the Pakistan Penal Code for dishonestly retaining the stolen properties, namely, wool, clothing s etc. belonging to the complainant Azahar Hussain and his partner Rakib, knowing or having reason to believe the same to be stolen property and he was convicted under section 411 of the Pakistan Penal Code by the learned Magistrate and sentenced to rigorous imprisonment for two months.

4. On appeal, the learned Sessions Judge Mr. K. Rahman Khan allowed the same, set aside the order of conviction and sentence, and acquitted the appellant of the offence under section 411 of the Penal Code and at the same time passing the impugned order that the articles seized from the house of the appellant per seizure list be returned to the complainant Azahar Hussain,

5. Mr. Abdul Aziz, the learned Advocate appearing for the appellant has urged grounds 1 and 2 of the application which are as follows:‑

"For that the articles seized from the house of the appellant have not been proved to be belonging to the complainant since the complainant had no special mark of identification of the articles and that the complainant did not identify the articles in Test Identification Parade held by an impartial authority."

"For that there is admittedly no special mark of identification of the complainant with respect to wool which is the major item of the stolen properties. As a matter of fact, it is the defence case from the very inception that appellant is also a wool dealer and that P. Ws. admitted this fact. In view of the above the order for return of the wool to the complainant is illegal, improper and unjust."

6. The wool recovered bore no special identification mark. The gaberdine serge recovered also could not be ascertained conclusively as being the stolen one. The serge shirt seized does not bear the dobi mark. There was neither any identification of the articles. There is evidence‑ that appellant also deals in wool, the major item of the recovered properties.

7. Therefore, there seems to be some substance in these two grounds. Mr. Aziz has next urged ground No. 3 as under :‑

"For that the learned Sessions Judge was wrong in finding that the appellant disclaimed his ownership of the articles and did not challenge the complainant's case. As a matter of fact, the positive defence case in the trial Court, as would be evident from the judgment, was that all the articles seized by the Police bore no special mark of identification and that they belonged to the accused appellant."

8. It appear that the learned Sessions Judge has observed as under :‑

"There is absolutely no evidence that the accused had any knowledge of those articles. The accused adduced two D. Ws. The learned Magistrate did not at all consider their evidence nor has he uttered a single word in his entire lengthy judgment regarding the D. Ws. As such, there is no evidence, beyond reasonable doubt, that the accused had any knowledge of retention of those articles in his ghar which were recovered in his absence and in presence of his wife. This being the position, I am inclined to give the accused the benefit of doubt. The articles seized from the ghar of the accused, must be returned to the complainant, as the accused disclaimed his ownership of the articles and also does not challenge the complainant's claim. The point is decided accordingly."

9. It is difficult to understand as to how in the face of the suggestions to P. W. 1 and P. W. 4 to be quoted later the learned Judge could state that the accused disclaimed ownership of the articles and did not challenge complainant's claim.

10. The trial Court has stated the defence case as under:

"The defence case is that all the articles seized by the police bore no special mark of identification, and that they belong to the accused."

Cross‑examination of P. W. I and P. W. 4 as under also shows that the complainant's claim was challenged. P. W. 1 in cross: --‑"I do not know if accused carried on wool business from 2 years before occurrence. It is not a fact that the properties do not belong to me and I was claiming them falsely." P. W. 4 in cross:

"It is not a fact that the goods do not belong to us." Further D. Ws. 1 and 2 have stated that accused was a dealer in wool himself.

11. In examination under section 342 of the Code of Criminal Procedure also the accused stated in reply to question Have you anything more to say Answer :‑Yes, I deal with wool no stolen article was found in my house."

12. This shows that the accused at any rate claimed the wool to be his as a dealer in wool. Under those circumstances, there is no justification for the order of the learned Sessions Judge and the learned Judge's observation, "Complainant's case was not challenged" is found to be incorrect.

13. As to the principle applicable to the present case, some decisions as under have been cited at the Bar in the cases of Sattar Ali v. Afaal Muhammad ((1927) 28 C I. J 546), of which the facts and decision are as under:

"The petitioner was accused of abetment of theft of an elephant and the elephant was recovered from his possession by the Police. He was acquitted on the ground that he had acquired a share in the ownership of the elephant but the Magistrate made an order handing over the elephant to the complainant until the Civil Court should adjudge to the contrary :‑

Held, that the order handing over the elephant to the .complainant was illegal and that the animal should be handed back to the accused."

The next decision V. K. Vaiyapuri Chetti v. Sinnlah Chetty ((1931) 32 C L J 355), is as under :‑

"Under section 517, Criminal Procedure Code, if no crime is made out the Magistrate has a discretion to decide the question of possession, but as a rule, the article seized should be returned to the person from whom it was seized unless there are special circumstances which would render such a course unjustifiable.

The mere fact that two parties are quarrelling about possession is not one of the special circumstance which take a case oLt of the general rule.

It is advisable to keep these civil disputes out of Criminal Courts."

The next decision cited is that of Johardal Debisahal Agarwal v. Emperor (50 Cr. L J 104), in which it was held as under:

"When an accused is acquitted of a charge of theft and the property found with him is not found to be the subject of theft he is entitled to recover that property; but where the property is found to be the subject of theft and the acquittal is due to incomplete evidence and upon benefit of doubt and the accused is not lawfully in possession of the entire property, the property will not be delivered to him."

The decision in the case of Ramphal Tatwa v. Josodia Malain, (40 C W N 862) was also cited. This decision is as follows :‑‑

"Under section 517 of the Criminal Procedure Code a Magistrate or the Court revising his order under section 520, is proved to have been committed in respect of the property and the accused is acquitted, to restore the property to the person from whom it was last taken. When there are conflict ing claims to the property, it may properly be ordered to remain in the custody of the trial Court, pending decision by a Civil Court of competent jurisdiction."

14. In the light of the decision in 50 Criminal Law Journal, 104 the accused is not entitled to the articles other than wool. He having been let off on benefit of doubt only and because the D. Ws. were not considered, so far as the wool goes it appears that those are his. The other articles will be in the custody of the Court till right thereto has been established in the Civil Court. In the light of the rulings as above, my decision is that the order of the learned Sessions Judge directing return of the wool to the complainant must be set aside and it is ordered that the wool be delivered to the accused from whom it was A seized under the seizure list. So far as the other articles go, those will be in the custody of the Court the respective owners have established their claims in the Civil Court. On the state of evidence as above and in the light of the grounds 1 and 2, the complainant has not been able to substantiate his claim so far as the other articles go, nor has the accused himself set up any successful claim to those. Those articles will, therefore, remain in the custody of the Court.

15. The appeal is thus allowed and the order of the learned Sessions Judge is set aside. The appeal is disposed of in the terms as above.

S. B./A. H.

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