Raja Azlan Shah J (delivering oral judgment):

[1] The appellant was convicted of the offence of theft of 21 old wooden beams to the value of $10.50 belonging to one Abdullah bin Mukim Mat, an offence under s 379 of the Penal Code. He was found guilty and convicted, and fined a sum of $300, in default three months imprisonment. The facts are as follows: the complainant found that 21 old wooden beams which he had placed on his land were missing and the missing beams were subsequently traced to the appellant, in the circumstances which prima facie established an offence under s 379 of the Penal Code.

[2] There are two grounds of appeal. Firstly, that the learned trial magistrate erred in law in not exercising his discretion under s 259(i) of the Criminal Procedure Code (Cap 6) in adjourning or postponing the case to enable the appellant to call a witness by name Kamal Ariffin. Secondly, that the learned trial magistrate was wrong in presuming that under s 114(g) of the Evidence Ordinance that if Kamal Ariffin were called to give evidence his evidence would be unfavourable.

[3] The appellant gave evidence on oath to the effect that the beams were given to him by a contractor named Kamal Ariffin and that he did not steal them from the complainant. In cross-examination he said that Kamal Ariffin had no land near his place and that he took the said beams by the side of a bridge. That was all he said in the court below. Kamal Ariffin was not called as a defence witness and there is no mention in the record that the appellant had asked for an adjournment in order to call that witness.

[5] With regard to the second ground of appeal, it was said by counsel on behalf of the appellant that the adverse comment made by the learned magistrate amounts to a misdirection which justifies the appeal to be allowed. In the grounds of judgment the learned magistrate said, and I quote:

"In his defence the accused denied taking those beams from the land of PW1 and said that they were given to him by one Kamal Ariffin. He did not call any witness to substantiate his evidence".

[6] Up to that point no criticism can be levelled against the judgment of the learned magistrate. However, the learned magistrate went further to say, and I quote:

"I think it is not enough for the accused simply to deny taking those beams in order to create a reasonable doubt in the case for the prosecution. Furthermore, if Kamal Ariffin did exist why he did not call him to give evidence for the defence. From this failure I invoked the provision of s 114 illustration (g) of the Evidence Ordinance 1950 and presumed that if he were called to give evidence his evidence would be unfavourable to the accused".