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Criminal Appeal No. 909 of 1962, decided on 17th April 1963.

Ss. 392, 390 & 378‑Accused by force snatching away mare temporarily from its owner in order to obstruct him in lodging report of an offence of murder at police station‑Guilty under S. 392‑Sentence of 5 years' R. I. in circumstances of case, however, reduced to 2 years' R. I

Abdul Shah v. Afsaruddin Mollah P L D 1960 Dacca 64 ; Dayal and others v. Emperor A I R 1943 Oudh 380 ; Jagannath Misra v. Emperor A I R 1929 Pat. 429 ; Gulistan and others v. The State P L D 1963 Pesh. 6 and Queen‑Empress v. Sri Churn Chungi I L R 22 Cal. 1017 ref.

Ss. 378 & 392‑Taking of property even for a time for temporary purpose‑Theft.

Queen‑Empress v. Sri Churn Chungi I L R 22 Cal. 1017 rel.

Malik Muhammad Anwar for Appellant.

Muhammad Wahid Naik for A. G. for Respondent.

Dates of hearing : 21st and 22nd March 1963.

This is an appeal by Saidu who has been sentenced to five years' rigorous imprisonment under section 392 of the Pakistan Penal Code. Manzuri Kamir and Shahnu were also tried along with him, but were acquitted.

2. The facts of the case are that on the 23rd of September 1961, at about digarwela, Bashir, brother of Kamir (P. W. 2), was murdered in village Daffar Khokharan. Kamir (P. W. 2), left for the Police Station in the company of Anwar and Sada P. Ws., to make a report of the occurrence. Kamir was riding a mare. When they reached near a culvert, over a rajbah, in the vicinity of Daffar Khokhar, four persons emerged and caught hold of the reins of the mare. They were Saidu, Manzuri, Kamir and Shahnu. Anwar and Saidu were 3 or 4 Karams behind Kamir. It was a moonlit night. All the four accused gave fist blows to Kamir and brought him down. They took the mare away forcibly. This incident was witnessed by Anwar (P. W. 3) and Sada (P. W. 4). Kamir had, therefore, to go on foot to the Police Station Warburton, where he reached at about 9‑15 a.m. and made the report Exh. P. K., which has been exhibited in connected case. The report was recorded by Muhammad Sharif, A. S. I. (P. W. 6). Malik Asghar Ali, S. H. O. (P. W. 7), arrested Saidu appellant on the 24th of September 1962, and on interrogation he led the Sub‑Inspector to his haveli and caused the recovery of the mare which was taken into possession vide memo. Exh. P. A. The mare was identified by Kamir to be his. Manzur and Kamir were also arrested on the same day, while Shahnu was arrested on the next day. Saidu appellant denied the prosecution allegations, and pleaded innocence. No evidence was led in defence.

3. Kamir (P. W. 2), Anwar (P. W. 3) and Sada (P. W. 4) appeared as eye‑witnesses of the forcible taking of the mare by Saidu appellant and his companions. Anwar (P. W. 3), was, in those days, a tenant of Mukha, who is maternal uncle of Kamir P. W. They were jointly accused of having committed eight murders in Chak Nara, Police Station Churh Kahna. He is an interested witness. Sada (P. W. 4), is neither related to Kamir nor inimical to the appellant, but knew Kamir since two or three years and appears to be his friend. He and Dosa, younger brother of Anwar (P. W. 3), were challaned in a theft case together. The evidence of recovery of the mare at the instance of Saidu appellant is deposed to by Isa (P. W. 5) and Asghar Ali, A. S. I. (P. W. 6). Isa is sister's husband of Kamir (P. W. 2). His father is also maternal uncle of Kamir P. W. The Haveli from where the mare was recovered is about a Killa from the culvert where the mare was snatched.

4. The trial Judge believed the evidence of the three eye witnesses and of Isa and Asghar Ali S. H. O. with regard to the incident and the recovery of the mare at the instance of Saidu appellant and convicted him. He gave the benefit of doubt to Manzuri, Amir and Shahnu on the ground that they did not take any active part in forcing Kamir to get down from the mare or in snatching it. Though Kamir stated in his evidence that all the four accused gave him blows and made him get down and forcibly drove away the mare, Anwar and Sada P. Ws. stated that Saidu aloe caught hold of the reins of the mare, and his companions turned towards them (i.e. Anwar and Sada) and then they ran away. They do not mention that Kamir was beaten by Saidu's companions. This shows that Anwar and Saidu P. W. have not blindly toed the line of Kamir and repeated his story parrotwise. Their evidence inspires confidence. They have no particular reason to depose falsely against the appellant. A report of this incident was very promptly made. Therefore, I have no doubt on the evidence of the P. Ws. that Kamir was deprived of the mare by Saidu. The participation of the appellant in the occurrence is further supported by evidence of Isa (P. W. 5) and Asghar Ali, S. H. O., to the effect that Saidu produced the horse in the following morning from his Haveli. Isa is, no doubt, an interested witness, but there is hardly any reason to doubt the testimony of Asghar Ali, Sub‑Inspector. It is, therefore, established on the record that the mare which Kamir was riding was forcibly snatched from him by Saidu appellant.

5. The main contention raised by the learned counsel for the appellant is that he committed no offence even if he took away the mare, because he did not have any dishonest intention in taking it, as the motive, as held by the learned Additional Sessions Judge, was no more than a desire to obstruct Kamir P. W. in going to the police station, so as to cause delay in the lodging of the F. I. R. In the circumstances of the case, was the taking of the mare by the appellant dishonest

6. The offence under section 392, P. P. C. is an aggravated form of theft, which is defined in section 378 P. P. C. as follows :‑

"Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft."

"Dishonestly" is defined in section 24 of the Pakistan Penal Code as :‑

"Whoever does anything with the intention of causing wrongful gain' to one person or 'wrongful loss' to another person' is said to do that thing dishonestly' ".

"Wrongful gain" and "Wrongful loss" are defined in section 23 of the Pakistan Penal Code. It provides:

" Wrongful gain' is gain by unlawful means of property to which the person gaining is not legally entitled.

Wrongful loss, is the loss by unlawful means of property to which the person losing it is legally entitled."

A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully, when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.

7. Learned counsel for the appellant, to support his con tention, relied on Abdul Shah v. Afsaruddin Mollah (P L D 1960 Dacca 64) and Dayal and others .v. Emperor (A I R 1943 Oudh 380). In first case the accused, who numbered 25, physically removed the materials of a primary school, which was under the control of a managing committee. Five of the accused persons were members of the managing committee. The complainant was its secretary. Party‑factions sprang inside the managing committee of the school, culminating in a body of men, including the petitioners, physically removing the school with all its belongings from its original site, and re‑raising it at a site close‑by. The learned Judge if the Dacca High Court came to the conclusion that the facts of the case may well attract the plea of bona fide claim of right, for it could not be denied that the school which originally started as a personal achieve ment of Walimuddin Mollah, father of the complainant, gradually took a public aspect ; and that the plots on which it stood were later gifted to the school board, which was under the control of a big managing committee of which some of the accused were members. The school vested in the public, and though it techni cally vested in the possession of the secretary, who was one of the members of the committee, mere taking out of his posses sion without his consent was not sufficient to bring the case within the definition of section 379 of the Pakistan Penal Code as "intending to take dishonestly". The learned Judge concluded that there was very little doubt left as to the bona fides of the accused party and it was .not a case of mere pretence, and that under the circumstances of the case the charge of theft must fail. The decision of this case rests on the bona fide assertion of a right or claim of the accused to the school‑building.

8. In the second case Dayal and others v. Emperor, the facts were that some cows of the Chamars of Ichhra were found by certain Thakurs of Sainapur grazing in their fields. They took them to the cattle‑pound, and the cattle were got released by the Chamars on the following morning. The Chamars were incensed at the impouding of their cattle and took away 25 she‑buffaloes belonging to the Thakurs from the village pond, in the evening, towards the cattle‑pound although they were resisted by the cow‑herd. The news reached the Thakurs and they followed the Chamars and asked them to release the cattle, but the Chamars refused to do so. Certain other Chamars also came to the spot, and there was a fight between the parties resulting in injuries to both sides. It was argued in this case that the Chamars were guilty of an offence of theft, but the learned Judge did not agree with the contention and held that the essential element of taking the property dishonestly, as contemplated by section 378, P. P. C. was lacking, because there was no wrongful gain to the Chamars in driving the cattle to the pound, nor could it be said that any wrongful loss was caused to the owners of the cattle, even though they would have had to incur expenses to get the cattle released.

9. The learned counsel for the State relies, on the other hand on Jagannath Misra v. Emperor (A I R 1929 Pat. 429) and Gulistan and others v. The State (P L D 1963 Pesh. 6). In the first case the Hindus of a village came to know that a Muhammadan had sacrificed a cow, and appre hending that a she‑calf in his house would also be sacrificed, gathered near his house. The police intervened and a compromise was arrived at. The owner of the she‑calf agreed that it should be kept tied in the courtyard of a neighbour, who was a Hindu. After it was tied there, Jagannath Misra arrived there, and removed the she‑calf elsewhere. He was convicted under section 379, I. P. C., and it was urged on his behalf that he had no dishonest intention, because the removal by him of the she -calf was with the intention of saving it from sacrifice, and not to deprive the owner of the benefit arising from its possession. The learned Judge came to the conclusion that there was no doubt that the owner underwent mental anxiety and lost face among the community, that the petitioner's real motive was not the safety of the calf but to do down the owner and other Muhammadans, and he thereby acquired the plaudits of his co‑religionists, which he coveted, and that there was nothing to show that the calf would ever have been returned to its owner. On these facts, therefore, the learned Judge held that the case fell definitely within sections 23 and 24, I. P. C. Reference was made to the Full Bench case, Queen‑Empress v. Sri Churn Chungi (I L R 22 Cal. 1017) in which it was held that it was not necessary that the taking should be permanent or with an intention to appropriate the thing taken.

10. In Gulistan and others v. The State the facts are that the complainant received a sum of Rs. 286 as his share of the mortgage money. He along with other persons, including the accused, left for their village. When they reached near a graveyard, Gulistan and Sultan accused asked the complainant to hand over the sum of Rs. 286 to Sultan, as the sum was due to him on the basis of a compromise deed executed between the parties. The complainant declined to part with the money, which led to an altercation between Sultan accused and the complainant. Then the accused beat him, and Umar accused removed the sum from his pocket. The defence was that the removal of the money from the shirt of the complainant did not amount to theft as it was taken under a bona fide belief that it did not belong to Ghulam Sarwar, but actually belonged to Sultan. In support of this contention a compromise deed was relied on. The learned Judges of the Peshawar Bench repelled the contention and held that though Sultan was entitled to receive the money, he had no right to take it by force, i.e. by taking the law into his own hands, and thus recover it by unlawful means. As contemplated by section 23, P. P. C. forcibly snatching amounted to wrongful loss within the meaning of section 24, P. P. C. In coming to this conclusion the learned Judges also relied on the Full Bench case cited above.

11. The argument of the learned counsel for the appellant that the taking was not dishonest is founded on the fact that the mare was not taken away to any distant place but was found on the following morning at a distance of only one killa from the place of occurrence and the motive for the taking was merely to cause delay in reporting the incident of murder to the police. The contention, in substance, amounts to this that there was no intention to permanently deprive the owner of the mare, but that it was a temporary taking, which neither caused any wrongful gain to the appellant nor wrongful loss to its owner. The contention cannot be accepted. In the Full Bench case, Queen Empress v. Shri Churn Chungi, it was held that it was not neces sary to constitute the offence of theft, that there should be shown on the part of the accused an intention to gain the thing moved for the use of the gainer; but that it is enough to show an inten tion to gain possession of it for a time for a temporary purpose. It is sufficient it is shown intention to take dishonestly the property out of any person's possession without his consent, and that it is moved for that purpose. If the dishonest intention, the absence of consent, and the moving are established, the offence is complete, however temporary may have been the proposed retention. Bannerjee J. observed that in considering whether the taking was dishonest, i.e. with intention of causing wrongful gain to one person or wrongful loss to another creditor in taking and retaining the animals intended to cause both wrongful gain to himself and wrongful loss to the debtor within the meaning of section 23 ; for he retained, by unlawful means, property to which he was not legally entitled, and he unlawfully kept his debtor, who was legally entitled to his property, out of possession and enjoyment of the same. "Wrongful loss" is caused not only by wrongful deprivation of the property but also by being wrongfully kept out of the same.

12. The explanation to section 23, P. P. C. leaves no room for doubt that there was wrongful gain and wrongful loss as defined in section 23 of the Penal Code. The appellant caused wrongful gain to himself as he wrongfully acquired the mare by use of force, and there was wrongful loss to the owner, because he was wrongfully deprived of the mare and was kept out of it. Even if the taking was temporary, it was wrongful, and it cannot even be said that the mare was intended to be restored. If it was not intended to be kept, why was it not left at the house of Kamir during the night The appellant also took the property, by force, which was unlawful, from the immediate possession of Kamir and its owner was deprived of its use, and kept out of it. In this case it is established that‑

(1) there was an intention to take the mare ;

(2) that the taking was dishonest ;

(3) that it was taken from the possession of another person without his consent; and

(4) that there was a moving of the property for such taking.

The necessary ingredients of section 378, P. P. C. are all satisfied. As the offence of taking was accompanied by causing of hurt or fear of instant hurt, the offence of the appellant falls under section 392 P. P. C.

13. It was lastly contended that the sentence of five years, is, in the circumstances of the case, excessive, as no damage in body was caused to Kamir. The contention is not devoid of force. Taking all the circumstances of the case into consideration, I consider that a sentence of two years' rigorous imprisonment will meet the ends of justice, and I order accordingly.

K. B. A./A. Appeal partly accepted.

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