Law: Penal Code (XLV of 1860)

Section: 215

Penal Code (XLV of 1860),   S. 215-Expression "unless h uses all means . . . . . to cause the offender to be apprehended"------ Benefit of exception-Burden on accused to prove that he used all means to apprehend offender.   The expression "unless he uses all means in his power to cause the offender to be apprehended" clearly indicates the intention of the Legislature that the accused will have to shop that he used all means in his power to apprehend the offender It is not possible for prosecution to prove that he has done so. The only reasonable interpretation will be that the burden of proof in this peculiar circumstance is on the accused because it is within his knowledge as to what he did or did not do for apprehending the offender.   Once elements constituting an offence under section 215 of the Pakistan Penal Code are established by evidence, the on proving that the person charged is entitled to the benefit c exception lies on the defence. In a prosecution under section 215 of the Code it is not for the prosecution to prove the negative that the accused did not use all means in his power to cause the offender to be apprehended. It is for the defence to establish the positive fact that they did all in their power to cause the offender to be apprehended.   JUDGMENT   In this case a rule was issued on the Deputy Commissioner of Bogra to show cause why the conviction and sentence of the petitioner Eusuf Haji alias Haji Eusufuddin Shahana under section 215 of the Pakistan Penal Code should not be set aside.   The case for the prosecution is that the three heads of cattle were stolen away from the cow-shed of P. W. 1 Mumtaz Ali Mondal and he became aware of the theft on the following morning and informed his neighbours. Of the stolen cattle, one bullock and one cow belonged to his domestic servant P. W. 2 Abbas Ali Sardar. It is further stated that Abbas Ali met the accused-petitioner Eusufuddin who agreed to give indication about the stolen cattle on payment of a sum of Rs. 5. P. W. Abbas Ali informed his master P. W. 1. Both of them went to the accused and paid Rs. 5. Then the accused, in order to create belief…