2015 P Cr. L J 382
[Balochistan]
Before Muhammad Kamran Khan Mulakhail, J
SANAULLAH---Petitioner
Versus
The STATE through Prosecutor-General---Respondent
Criminal Revision No. 6 of 2014, decided on 25th April, 2014.
Penal Code (XLV of 1860)---
----S. 411---Dishonestly receiving stolen property (Motor-cycle)---Appreci ation of evidence---
Benefit of doubt---Accused was charged under S.411, P.P.C., but th e necessary ingredients for
constituting the offence under S.411, P.P.C., were missing in the prosecution case---Complainant
in F.I.R. had mentioned that he, after havi ng received an information on telephone lodged the
present report---Without any cogent and reliable evidence, alleged information received by the
complainant, being hearsay, same was not admissibl e in evidence---Such as pect of the case, was
neither attended by the Trial Court, nor was co nsidered by Appellate Court below---Irrespective
of question of dishonesty and knowledge of accuse d, prosecution, even could not prove that the
motor-cycle in question was stol en property---Accused at the tim e, when alleged robbery took
place, was only 10 years old and it could not be presumed that accused had himself committed
robbery---Question of receiving stolen prope rty, would not be helpful in circumstances---
Prosecution was bound to establish the facts thr ough which the court could infer that accused,
either knew or had reasonable gr ounds for believing that motor-cyc le in question was stolen one,
but prosecution failed to do so---Without establ ishing the dishonesty, followed by knowledge of
accused, no conviction could be recorded agains t accused---Rule of pruden ce, stipulated that
prosecution had to prove its case beyond the shadow of any doubt-- -Accused had not to prove his
innocence, until and unless prove d guilty---Benefit of slightes t doubt would necessarily be
extended in favour of accused an d not otherwise---Prosecution ha ving failed to establish that
motor-cycle in question was stolen property, accused was acquitted of the charge---Accused
being on bail, his bail bond was discharg ed after expiry of appeal period.
Mukhtar Ali v. The St ate PLD 1971 SC 725 ref.
Petitioner in person.
Naseeruddin Mengal for the State.
Date of hearing: 25th April, 2014.
JUDGMENT
MUHAMMAD KAMRAN KHAN MULAKHAIL, J.--- This Criminal Revision Petition under
section 439 read with section 435 of the Crimin al Procedure Code, 1898 (Cr.P.C.) is directed
against the judgment dated 5th November, 2013 and the order dated 23rd December, 2013
respectively passed by the Judicial Magistrate, Be la ("trial Court") and the Additional Sessions
Judge, Lasbela at Hub ("appellate court") wher eby the petitioner was c onvicted under section
411 of Pakistan Penal Code ("P.P.C.") and se ntenced to suffer Rigorous Imprisonment (RI) of
two years with fine of Rs.5,000, (R upees five thousand only) and in default whereof was further
directed to suffer Simple Imprisonment (SI) of two months. The benefit of section 382-B,
Cr.P.C. was also extended in favour of the petitioner. The judgment passed by the trial Court was
upheld by the appellate court. Both the judgment and the order are impugned herein.
2. The brief facts of the case ar e that on written repor t (Murasila) sent by one Abdul Hakeem,
Sub-Inspector of Bela Police, an F.I.R. N o.15/2013 was registered on 17-7-2013 under section
411, P.P.C. with Police Station, Bela averring th erein that he along wi th other police personnel
were on block raid on National Highway (RCD) (Quetta-Karachi Road) when the petitioner was
apprehended along with motorcycle. On his fail ure to produce the regi stration documents of
motorcycle in question, the Citizen Police Li aison Committee" (CPLC) Karachi was contacted
on telephone, whereby it was informed that the sa id motorcycle was snatched from Karachi and
an F.I.R. No.598/2010 under sections 392/34, P.P.C. wa s also registered, th erefore, the instant
F.I.R. was lodged against the petitioner fo r retaining/carrying a stolen motorcycle.
3. After usual investigation, the challan was subm itted before the trial Court and after adopting
the requisite formalities the charge was framed a nd read over to the petitioner, to which he did
not plead guilty and claimed trial.
4. The prosecution in order to substantiate the ch arge, produced and examined as many as five
witnesses. However, the petitioner was examined under section 342, Cr.P.C. but he did not opt to
be examined on oath nor produced any witness in his defence. On conclusion of trial, the learned
trial Court has passed the judgment in above stat ed terms. The judgment was assailed in appeal
and the same was also dismissed by the learned appellate court.
5. The petitioner is present on bail and contended that he is day charge worker/labour and was
totally unaware that the motorcycle was stolen one, he was not owner of the motorcycle and
same was given to him by his maternal uncle ju st to deliver the shipment of watermelon to
nearby bazar. He further contended that at the time of arrest he di sclosed the said fact before the
police, but police did not bother to carry out furt her investigation and he was wrongly charged in
the instant case. He further contended that in the instant case he had already suffer the
imprisonment of more than six months and he being a helpless and poor boy of tender age was
subjected to undue harassment and dragged toward s commission of the offence about which he
was totally unaware.
6. Mr. Naseeruddin Mengal, learned counsel for the State contended that the prosecution had
proved its case beyond shadow of any reasonable doubts and the contention of the petitioner is
misconceived as he remained silent before the trial Court and did not disclose any such fact,
therefore, conviction and sentence recorded by the trial Court and upheld by the appellate court
are unexceptional. The concurrent findings of the f act derived from cogent and reliable evidence
cannot be reversed under the revision al jurisdiction of this court.
7. I have heard the learned Stat e counsel at length while the pe titioner's counsel is not in
attendance, therefore, in the interest of justi ce. I have gone through th e case file which brought
me to the conclusion that the petitioner was charged under section 411, P.P.C., but the necessary ingredients for constituting an offence under sec tion 411, P.P.C. were absolutely missing in the
prosecution case. To better understand the contr oversy, it would be helpful to reproduce the
section 411, 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 sa me to be stolen property,
shall be punished with imprisonment of either description for a term which may extend to
three years, or with fine, or with both".
The provision quoted supra merely stipulates "whoever di shonestly receives or retains any stolen
property, knowingly or ha ving reason to believe the same to be stolen property" shall be liable
for imprisonment under section 411, P.P. C. for receiving stolen property.
The section 410 of the P.P.C. defines "stolen prope rty" that the stolen pr operty is the property,
the possession whereof has been tr ansferred by theft or by extort ion or by robbery and property
which has been criminally misappropriated or its respect of which criminal breach of trust has been committed is designated as "stolen proper ty". The question of prime importance in the
instant case is that in F.I.R. complainant menti oned that he after having received an information
from CPLC Karachi on telephone lodged the instan t case. But the perusal of challan Exh.P/5-A,
reflects that two letters were s hown to have sent respectively to the CPLC Karachi and the SHO
PS Nazim Abad, Karachi. Although both the said le tters are mentioned in challan Exh.P/5-A but
replies thereof were yet to be received, as already mentioned therei n and whole trial was
concluded without any such document. No such document is appended with memo. of the
petition. The impugned judgment passed by the trial Cour t is also silent in this behalf, without
production of copy of F.I.R. and w ithout authenticating the fact th at the property in question was
stolen, no charge under section 411, P.P.C. can be framed. The stat us of the property in question
to be stolen one is first and ut most step to proceed towards the allegation of dishonestly receiving
stolen property. Since, irrespec tive of question of dishonesty and knowledge of the petitioner
even the prosecution could not prove that the motor cycle in question was stolen one. Thus,
without any cogent and reliable evidence, the alleged information received by the complainant
was merely hearsay, therefore, same was not admissi ble in evidence. This aspect of the case was
not attended by the trial Court a nd unfortunately did not consider by the appellate court. The
prosecution case is hopelessly sile nt about the knowledge of the petitioner in respect of the
nature of offence and alleged stolen status of th e motorcycle in question. The petitioner is present
in court and appears to be of tender age, who on query, disclosed that he is 14 years old. Be that
as it may, if the petitioner was charged under s ection 411, P.P.C. and the story narrated by the
prosecution, if admitted in toto, then the alle ged robbery took place on 17-7-2010. Then at that
time he was ten (10) years old, th erefore, it cannot he presumed that the petitioner had himself
committed a robbery. Then the question of receiving stolen property will not be helpful. In such
view of the fact that there is absolutely no evidence in respect of knowledge of the petitioner and
absolutely no evidence was availa ble on record in respect of theft of motorcycle in question and
the petitioner was merely shown in possessio n of the same. It is the bounden duty of the
prosecution to establish the facts through which th e court could infer that the petitioner either
knew or had reasonable grounds for believing that the motorcycle in question is stolen one but all
this exercise could bring some results when pros ecution could have proved that the motorcycle in
question was stolen one. Therefore, when dea ling under the charge for dishonestly receiving
stolen property, the posse ssion alone is not an offence. Th erefore, without establishing the
dishonesty followed by knowledge of the petitioner no conviction can be recorded against him
and for rendering this view, I have been suppor ted by the reported judgme nt of Hon'ble Apex
Court titled as Mukhtar Ali v. The State PLD 1971 SC 725.
It is well settled principle of administration of justice and rule of prudence stipulates that the
prosecution has to prove its case beyond the shad ow of any doubt. The contention of the learned
State counsel does not find any place within the four corners of administration of justice that the
petitioner has failed to discharge the onus of innocen ce. It is a well settled rule of prudence that
the accused has not to prove his innocence until and unless proven guilty. The golden principle
of administration of criminal la w under the Islamic Jurisprudence is that benefit of slightest
doubt shall necessary be extended in fa vour of the accused and not otherwise.
Thus, in view of above discussion, I am of the c onsidered view that the necessary ingredients for
constituting an offence under section 411, P.P.C. were not available to the prosecution. Even
prosecution had miserably failed to establish that the motorcycle in question was stolen property.
Therefore, the petition is accepted and the petitione r is acquitted of the ch arge. The petitioner is
on bail, his bail bond shall be discharged after expiry of appeal period.
These are the reasons of my short order date d 25th April, 2014 announced in the open Court.
HBT/4/Bal. Petition accepted.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,
let us know.