2014 P Cr. L J 88
[Balochistan]
Before Muhammad Hashim Khan Kakar, J
ALTAF HUSSAIN and another ---Petitioners
Versus
The STATE---Respondent
Criminal Revision No.31 of 2010, decided on 31st July, 2013.
(a) Penal Code (XLV of 1860) ---
----S. 411---Qanun- e-Shahadat (10 of 1984), Arts. 117 & 120---Dishonestly receiving stolen
property ---Onus to prove ---Appreciation of evidence ---Accused persons were convicted by Trial
Court and sentenced to imprisonment, as stolen property was recovered from the m---Validity ---
Mere possession of stolen property was not sufficient to constitute an offence under S.411,
P.P.C., rather in addition it had to be established that person in possession of stolen property
dishonestly received or retained the property knowing or having reasons to believe the same to
be stolen ---Onus was always on prosecution to prove essential elements of offence ---In case of
failure on the part of prosecution to prove basic ingredients i.e. receipt or retention of property
belonging to someone else, the property being stolen one, existence of knowledge or belief on
the part of person found in possession and receipt and retention was dishonest, no conviction
could be awarded ---Prosecution, to establish offence under S. 411, P.P.C., must not only prove
that property was stolen but it must also be established that person charged with being in
possession of stolen property either knew the property to be stolen or had reasonable grounds for
believing the same to be stolen ---Prosecution failed to pr ove conscious possession of accused as
recovery had not been effected from their actual and conscious possession, rather it had been
effected from a passenger bus, which was driven by co- convict ---High Court, in exercise of
revisional jurisdiction set asid e conviction and imprisonment awarded by two Courts below and
accused were acquitted of the charge---Revision was allowed in circumstances.
(b) Criminal Procedure Code (V of 1898) ---
----S. 439---Revisional jurisdiction of High Court ---Concurrent findings of fact by two Courts
below ---Principle ---Scope of revision is very limited, where finding of fact affecting decision is
not based on evidence or it is result of misreading or non -reading of evidence on record, then
revisional jurisdiction is very wid e and is not a power but duty, which has to be exercised
whenever facts calling for its exercise are brought to the notice of Court ---Revisional Court can
interfere for correction manifest illegally or prevention of gross miscarriage of justice.
Muhamm ad Riaz Ahmed for Petitioners.
Miss Sarwat Hina, Additional P. -G. for the State.
Date of hearing: 23rd July, 2013.
ORDER
MUHAMMAD HASHIM KHAN KAKAR, J. ---The petitioners Altaf Hussain and
Abdul Majeed have filed the present revision petition under section 435 read with section 439 of
the Cr.P.C. for setting aside the respective judgments of the learned Sessions Judge, Lasbella at
Hub dated 5th March, 2010 and Judicial Magistrat e, Hub dated 28th January, 2010 and also seek
acquittal. In terms of the judgment of the learned Judicial Magistrate, Hub, the
accused/petitioners were convicted and sentenced to suffer rigorous imprisonment for three (3)
months each with the benefit of se ction 382- B of the Cr.P.C. The accused/appellants preferred an
appeal against the said judgment. However, the learned Sessions Judge, Lasbella at Hub
dismissed the appeal and upheld the conviction and sentence. The petitioners being aggrieved
filed the pre sent revision petition.
2. The facts explained by Ghulam Mehdi Bugti, SI/SHO before the Investigating Officer
Khan Muhammad, SI, in his complaint Exh.P/1- A are as follows: --
On the fateful day i.e. 22nd March, 2009, after receiving spy information reg arding stolen
motorcycles being packed and transporting towards Bella, the complainant and other police
officials in supervision of DSP along with other police officials raised blockade in front of police
station, when at about 12- 30 a.m., a Mazda bus bear ing Registration No.PE -1159, coming from
Karachi was stopped/intercepted, being driven by accused Imam Bakhsh, while the remaining
accused; viz., Elahi Bakhsh, Ghulam Abbas, Niaz, Abdul Majeed and Altaf Hussain were also
found sitting in the same and after carrying out search of the bus, five motorcycles in the shape
of open parts packed in different packets were recovered. The said articles were taken into
possession through recovery memo and thereafter Crime No.8 of 2009 dated 22nd March, 2009,
under sect ion 411 read with section 34 of the P.P.C. was registered.
3. The defence setup by the accused/petitioners under section 342 of the Cr.P.C. is that they
were travelling in the said bus as passengers, having no knowledge about the presence of
recovered st olen articles at the relevant time.
4. The prosecution, in order to prove the accusation, produced and examined seven
witnesses.
5. I have heard the learned counsel for the parties. The arguments urged by the counsel for
the revisionists have the following prongs: --
(i) the prosecution has badly failed to prove the actual and conscious possession of the
revisionists;
(ii) the revisionists were travelling in the said bus at the relevant time as passengers and they
had no knowledge about the presence of parts of the motorcycles;
(iii) the prosecution evidence is suffering from glaring contradictions and was not sufficient to
form conviction; and
(iv) the impugned judgments being perverse and contrary to law are not sustainable.
6. On the contrary , the learned Additional Prosecutor General, while controverting the
contentions raised by the learned counsel for the petitioners, submitted that the prosecution has
proved its case to the hilt, as such, in view of the concurrent findings of the Courts be low, the
revision petition is liable to be dismissed.
7. Before dilating upon the rival contentions raised on behalf of the parties, it would be
appropriate and advantageous to reproduce the relevant provisions of section 411 of the P.P.C.,
which reads as under: --
"411. Dishonestly receiving stolen property. 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 ter m which may extend to three years, or
with fine, or with both."
A bare perusal of the aforesaid provision of law clearly demonstrates that this section is directly
not against the principal offender, such as, thief, robber or misappropriator, but against the class
of persons, who trade in such stolen articles known as "receivers". A person, immediately, after
theft found to be in possession of stolen property, presumption would be that either he is a thief
or in possession of goods with knowledge that those are stolen. Admittedly, mere possession of
the stolen property is not sufficient to constitute an offence under the aforementioned provision,
rather in addition 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 reasons to believe the same
to be stolen. The onus is always on the prosecution to prove the essential elements of the offence.
In case of failure on the part of the prosecution to prove the basic i ngredients i.e. receipt or
retention of property belonging to someone else, the property being stolen one, existence of
knowledge or belief on the part of the person found in possession and the receipt and retention is
dishonest, no conviction can be awarded. The prosecution to establish an offence under section
411 of the P.P.C., must not only prove that the property is stolen, but it must also be established
that the person charged with being in possession of stolen property either know the property to
be stolen or has reasonable grounds for believing the same to be stolen. In order to constitute an
offence under this section, the prosecution is not only required to prove the possession to be
recent but also to establish exclusive possession of the propert y knowing it to be stolen. Stolen
property recovered long after theft, possession cannot be said to be recent so as to ensure
conviction under this section. In order to raise the presumption against the accused, he must be in
exclusive possession of stolen property. Similarly, to constitute "possession" within the meaning
of section 411 of the P.P.C., it must be interpreted in its broadest sense, and apart from physical
possession, it must also mean the ownership of and control over the alleged recovered pa rts of
motorcycles. The word "possession" is a word of wide import and is not free from ambiguity.
This is because the meaning of possession must depend upon the context in which the word is
used. The mental element is an essential element of possession in criminal statutes.
8. While considering the case of the petitioners on the touchstone of the aforementioned
criterion, I am of the considered view that the prosecution has badly failed to prove the conscious
possession of the petitioners, as the recover y has not been effected from their actual and
conscious possession, rather it has been effected from a passenger bus, which was driven by co -
convict Imam Bakhsh. The record also reveals that the alleged recovered motorcycles were
snatched/stolen on 13th Ma rch, 2009, 14th March, 2009, 16th March, 2009 and 18th March,
2009 from different areas of Karachi. In such circumstances, if the case of the prosecution is
taken to be a gospel truth, even then no case under section 411 of the P.P.C. has been made out,
as the possession is not a recent one, thus, no adverse presumption could be drawn against the
petitioners. They cannot be presumed to be in possession of the bus in question. Neither the
petitioners were drivers of the bus in question, nor its cleaners, whe refrom the alleged recovery
of stolen articles has been effected.
9. I am conscious of the fact that two Courts have decided the case against the revisionists
and it is trite saying that the scope of revision under the circumstances is very limited, howe ver,
where the finding of fact affecting the decision is not based on the evidence or it is result of
misreading or non- reading of evidence on record, then revisional jurisdiction is very wide and is
not a power, but a duty, which has to be exercised whene ver facts calling for its exercise are
brought to the notice of the Court. The revisional Court can interfere for correction of manifest
illegality or prevention of gross miscarriage of justice.
The cumulative effect of all above factors resulted into r ecording of acquittal of the
revisionists/petitioners, which I had done by setting aside the impugned judgments and the
conviction vide short order dated 23rd July, 2013 and these are the reasons thereof.
MH/84/Bal. Revision allowed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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