AINUL HUQ vs The STATE
The petitioner sought special leave to appeal against his conviction under Section 411 of the Pakistan Penal Code 1860 for dishonestly retaining stolen property, specifically a German Patromax Light and a quantity of rice. The conviction, initially upheld by the Sessions Judge and the High Court of East Pakistan, was challenged on three grounds: the inadmissibility of a confession made to a Union Council Chairman, the failure of the prosecution to prove exclusive possession, and the omission of the alleged confession during the petitioner's examination under Section 342 of the Code of Criminal Procedure 1898. The Supreme Court held that, irrespective of the confession's admissibility, the evidence of the petitioner leading witnesses to the location of the stolen goods in a sugar-cane field sufficiently established his possession. The Court further ruled that in the absence of the record of the Section 342 examination, it must presume the procedure was correctly followed, and any irregularity would not vitiate the trial without proof of prejudice. The petition was dismissed, affirming that Section 411 covers both receiving and retaining stolen property.
- Does Section 411 of the Pakistan Penal Code 1860 cover both receiving and retaining stolen property?
- Can a conviction be vitiated by an irregularity in the examination under Section 342 of the Code of Criminal Procedure 1898 in the absence of prejudice?
- Is a conviction sustainable based on evidence of possession even if a prior confession is excluded?
- Section 411, Pakistan Penal Code 1860
- Section 342, Code of Criminal Procedure 1898
1. HAMOODUR RAHMAN, C. J.-The petitioner was charged under section 411, P. P. C. With dishonestly retaining one German Patromax Light, a gunny bag containing 1 maund and 13 seers of rice and some other articles belonging to Anisur Rahman (P. W. 1) knowing or having reason to believe the same to be stolen property.
2. On the night following Sunday, the 28th September 1965, there was a theft in the shop of Anisur Raman. Anlur Rahman, after informing others about the theft, followed the line of fallen rice from his shop which led to the house of the petitioner. The petitioner was interrogated by the local Chairman before whom he confessed his guilt, took him and others with him to a nearby sugar- cane field and from there brought out a German Patromax Light, a gunny bag containing 1 maund and 13 seers of rice and some other articles. Anisur Ralrman identified r the Patromax and the rice bag as belonging to him.
3. The petitioner set up the defence that he was being falsely implicated out of grudge, because, be owed some money to Anisur Rahman. The latter had concocted this case to bring pressure on him to repay the money.
4. Seven witnesses were examined on behalf of the prosecution who fully supported the prosecution case the petitioner was, accordingly, convicted. His conviction was upheld in appeal by the Sessions Judge, Dinajpur, and a learned Single Judge of the High Court of East Pakistan, has dismissed his revision. He now seeks special leave to appeal.
5. Three points have been urged on his behalf, namely ; (1) that the confession before the local Union Council Chairman was inadmissible, (2) that the prosecution had not succeeded in establishing his exclusive possession of the stolen articles and (3) that the alleged confession was not put to him in his examination under section 342 of the Code of Criminal Procedure.
6. Even if the confession is excluded from consideration, there is abundant other evidence to establish that the stolen articles were in the possession of the petitioner. He took the witnesses to the sugar-cane field from where he brought out the stolen articles. This he could not have done unless he placed them there himself. The sugar-cane field is not a place where normally articles, like a Patromax Light and a bag of rice, are stored.
7. There is no possibility of testing the third contention ether for, no copy of the examination of the petitioner under section 342 of the Code of Criminal Procedure has been filed. In its absence we can only presume that the examination was properly conducted. In any event, this is only an irregularity which in the absence of any evidence of prejudice, cannot vitiate .The trial.
8. Learned counsel lastly sought to urge that the charge in this case was defective, as the petitioner was not charged for receiving the stolen property. Section 411 of the Pakistan penal Code covers both receiving and retaining. In this case the petitioner was charged with retaining the stolen property and it has been well-established that he was in possession of the stolen property almost immediately after the theft. He has, therefore, been rightly convicted under section 411, P. P. C. On a proper charge.
9. There is no substance in this petition which is, accordingly, dismissed. .