IN THE COURT OF DISTRICT MAGISTRATE
ISLAMABAD Case No. _______
BETWEEN
STATE
Prosecution
versus
MS. DANIA
Defense
SKELETON ARGUMENT ON BEHALF OF THE PROSECUTOR
MAY IT PLEASE YOUR HONOUR, I APPEAR ON BEHALF OF THE STATE.
MY LEARNED FRIEND MR. GHANI IQBAL APPEARS ON BEHALF OF THE
DEFENDENT, MS DANIA.
1. Introduction
1.1 This is the Prosecution (P) argument for the remand of Defendant (D) into custody u/s 167
Cr.P.C, 1898.
BEFORE I BEGIN, YOUR HONOUR, MAY I ASK IF YOU HAVE HAD THE
OPPORTUNITY TO READ THE PAPERS IN THIS CASE?
YOUR HONOUR THE DOCUMENTS RELIED ON ARE AS FOLLOWS:
1.2 The documents relied upon are:
Witness statements:
Store Detective’s dated 21 January 2021
Security Guard’s dated 21 January 2021
Exhibits:
Charge Sheet No. 247
FIR No. 21/2021
Recovery Memo No. 178/2021
Police Report No. 90/2021
Case Diary No. 33
Fingerprint Analysis Report No. 231
Statutes:
Pakistan Penal Code, 1860
Code of Criminal Procedure, 1908
Other Authorities:
36 Cr.LJ 310 Bhura Singh; 12 Luck 92 Rameshwar Singh (see paragraph 4.2)
32 Cr.LJ 739 = AIR 1931 Pat. 337 (see paragraph 4.3)
AIR 1943 PC 211 (see paragraph 5.3.1)
PLD 1995 SC 34 (see paragraph 5.4)
YOUR HONOUR THE FACTUAL BACKGROUND TO THIS CASE IS SET OUT IN
PARAGRAPH 2 OF MY SKELETON ARGUMENT, WOULD YOU BE ASSITED BY
A BRIEF OPENING OF THOSE FACTS?
2. Factual Background
2.1 On 15th January 2021, Ms Dania, along with her baby, entered the ‘Cheep and Cheerful’
supermarket. She was pushing a pushchair that had a retracting hood. She was followed by the store
detective who saw her taking a bottle of perfume from the shelf. She made her way through the
checkout, paying for one bottle. The store detective stated that while leaving the store he saw her
taking a second bottle of perfume from the shelf and placing it in the hood of the pram for which
she did not pay. The state’s case is that Ms Dania dishonestly committed a wrongful act by
intentionally placing the bottle in the hood of the pram, thus committing theft. Moreover, on
leaving the store , the state will seek to prove that Ms. Dania quickly abandoned the bottle of
perfume after she saw the security guard standing on the end of the till.
3. The issues in the case
3.1 The issues that need to be discussed are:
a. Whether D dishonestly placed the bottle in the hood of the pram?
b. Should Court remand D in custody?
4. The test for identifying commission of theft
4.1 Section 378 PPC provides the definition of theft. It states that:
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.
Explanation 1: A thing so long as it is attached to the earth, not being movable property, is
not the subject of theft; but it becomes capable of being the subject of theft as soon as it is
served from the earth.
Explanation 2: A moving effected by the same act which effects the severance may be a
theft.
Explanation 3: A person is said to cause a thing to move by removing an obstacle, which
prevented it from moving, or by separating it from any other thing, as well as by actually
moving it.
Explanation 4: A person, who by any means causes an animal to move, is said to move that
animal, and to move everything which, in consequence of the motion so caused, is moved
by that animal.
Explanation 5: The consent mentioned in the definition may be express or implied, and
may be given either by the person in possession, or by any person having for that purpose
authority either express or implied.”
4.1.1 “Dishonestly” means with the intention of causing wrongful gain to one person or
wrongful loss to another person (Section 24 PPC).
4.2 In order to satisfy the Court that the offence of theft is committed it is essential to prove all the
elements of theft. Where property is temporarily removed and then restored to the owner it is not
theft. (36 Cr.LJ 310 Bhura Singh; 12 Luck 92 Rameshwar Singh). The essential element of theft are
as follows:
i. There must be dishonest intention.
ii. The dishonest intention must be to move any moveable property.
iii. The moveable property must be in possession of someone.
iv. The movement, in order to take the property must be without the person’s consent.
4.3 It does not matter whether the intention of the in thief is to derive wrongful gain for himself, it
is enough if it causes wrongful loss to the owner (32 Cr.LJ 739 = AIR 1931 Pat. 337 Lal
Muhammad. AIR 1946 ag. 326 Madra)
4.3.1 “Wrongful loss" is the loss by unlawful means of property to which the person losing it is
legally entitled (Section 23 PPC)
5. The act of Dania would be considered as theft
Whether D dishonestly placed the bottle in the hood of the pram?
5.1 If D did not have a dishonest intention she would have informed the security guard about the
accident that happened instead of quickly taking the bottle of the perfume out of the pram. When
there is a dishonest intention the person clutters which happened exactly with D.
5.2 The store detective, performing his duty in faithfully, saw D taking a second perfume from
the pram and placing it in the hood. If it would have been an accident the store detective would
have himself informed D as it is his duty to make sure customers do not face any problem. The
perfume being a moveable property was move by D, in order to take a property which was not in
her possession. This act constitute theft if committed dishonestly.
5.3 The explanation of D was not reasonable as if D had knocked the perfume into the pram she
would have came to know about it immediately because of three probable reasons. First, the
perfume would have broken. Second, the perfume would have made a clear noise upon falling in
the pram. Third, D would have felt something being knocked off from her body.
5.3.1 Even if we consider that there is absence of the proof of guilty knowledge or
reasonable belief of the goods being stolen, when recent possession after theft is
established, if the accused does not gives probable explanation, he is entitled to
conviction. (AIR 1943 PC 211).
Should Court remand D in custody?
5.4 If D would not be remanded to judicial custody there is likelihood that the offence will be
repeated by D. Bail is declined where there is danger of offence being repeated if the accused is
released on bail. (PLD 1995 SC 34).
5.4.1 The allegations made in FIR should be treated as substantive piece of evidence for the
purpose of disposal of bail applications.
5.5 There is a chance that D will not appear at her next court appearance, upon granting of a bail.
Bail is granted where the case requires further inquiry. This case does not requires any further
inquiry.
5.6 The right to liberty guaranteed by the Constitution of Pakistan provides that the state cannot
imprison or detain people unless the deprivation of liberty is reasonable, necessary and
proportionate in the particular case. The trial must be conducted and the case must be disposed.
Granting of bail might hinder the disposal of the case because of the non appearance of D.
6. Conclusion
6.1 Given that the defendant would likely repeat the offence and would not appear in the court
leading to hindrance in access of justice the court should remand the defendant in custody.
