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Revision Petition No. 33 of 1952, decided on 22nd November 1952, under section 439 of the Cr. P. C. for revision of an order of the Sessions Judge in Baluchistan dated the 23rd September 1952.

S. 21‑Document evidencing record of weighment of wood written up by complainant at dictation of accused who was doing the actual weighing with a spring‑balance‑Not inadmissible.

One of the accused was weighing out wood with a spring -balance and dictating the reading in respect of each weighment to the complainant to whom the wood had been sold. The record of weight was put in evidence by the prosecution against the accused in a trial on a charge of cheating by deliberately dictating higher figures than the actual of each weighment. On objection being taken that the writing was inadmissible as an admission under section 21, Evidence Act:

Held, that the writing was not an admission, having been prepared by the complainant on dictation by the accused, and was therefore not inadmissible in evidence.

Muhammad Nawaz for Petitioner.

Muhammad Arif, Public Prosecutor for the Crown.

‑This is a revision petition by the three convict‑petitioners Abdul Khalid, Abdullah Jan and Nur‑ud‑Din against the judgment of the learned Sessions Judge in Baluchistan, dated 23rd September 1952', in which on appeal he has upheld the conviction by the trial Court under which the convict‑petitioners were convicted of an offence under section 420, P. P. C. and were sentenced to various terms of imprisonment. The learned Sessions Judge, for reasons stated, has however reduced the sentences passed and has equally modified the conviction from one under section 420 of the P. P. C. to a conviction under section 420 read with section 511, P. P. C.

As there are two concurrent findings by the lower Courts the principle, which I invariably follow in cases of this nature, is that this Court would be reluctant to use its revisional powers unless there were exceptional circumstances relating to the case in question.

It is necessary for me to state briefly the facts of this case as alleged by the prosecution.

Very briefly, the three convict‑petitioners, in common conspiracy, are alleged to have endeavoured to sell fire‑wood to certain persons at an agreed rate. In the process of this tran saction a claim was made that 34 maunds of fire‑wood had been sold, whereas when it was subsequently weighed the fire‑wood produced for sale was only' approximately half the quantity of 34 maunds. On these grounds the convict‑petitioners have been convicted in the lower Court of an attempt to cheat.

In argument before me the learned counsel for the petitioners endeavours to assail the judgments of the two lower Courts on the ground that the conviction rests upon certain evidence which is inadmissible. There are, in my view, no other grounds which were argued before me which would attract my powers of revision in this case. This order will therefore confine itself to the question whether or not evidence adduced on behalf of the prosecution and accepted by the Court is or is not admissible. The evidence which has been questioned is documentary and has been exhibited. This document (writing) purports to be a compilation of figures recorded by Aslam Riaz, one of the most important prosecution witnesses and one of the persons to whom the wood was to be sold, as indicating the weight of the wood which was being weighed in his presence. Learned counsel for the convict‑petitioners claims that this document' is an admission and falls within the purview of section 21 of the Evidence Act, by which, as an admission, it cannot be proved on behalf of the maker. He contends, therefore, that if this documentary evidence is excluded there is little further evidence on which a conviction can stand.

It is first necessary for me to see whether the document (writing) in question is an admission as defined in the Evidence Act ; and for that purpose it is necessary to examine the other evidence on record in relation to the manner in which these figures had been prepared. The prosecution evidence indicates that prosecution witness Aslam Riaz himself wrote down these figures at the time the wood was being weighed. This fact is not disputed by the defence. Moreover, the prosecution version of the case is that Aslam Riaz recorded these figures on the piece of paper exhibited when they were read out to him by one of the convict‑petitioners who was at that time engaged in reading the figures on the spring‑balance, while another of his colleagues was doing the actual weighing. It must therefore be matter of considerable doubt whether the exhibit in question can be termed as an admission by one of the prosecution witnesses who recorded it when in fact he was recording it at the instigation of one of the convict‑petitioners. The evidence on this point has not been disputed or argued before me. I must therefore presume that the prosecution evidence in respect of this aspect of the case is correct, namely that Aslam Riaz, who recorded the figures, did so at the instigation of one of the convict‑petitioners. In that event I am of the view that the compilation of these figures cannot be taken as an admission by the person who compiled them so much as an admission of the correctness of the figures by the person who read them out, i.e., one of the convict‑petitioners. In these circumstances, I am of the view that section 21 of the Evidence Act does not debar the use of this particular evidence because it is in favour of the prosecution. It is undoubtedly in its favour though I am of the view that the information so recorded emanated, not from the prosecution, but from one of the convict petitioners. The admission, if such it is, was in my view made by one of the convict‑petitioners, though recorded by a prosecution witness. It is very significant that when the witness disputed these figures it was the convict‑petitioners who continued to confirm that the total of 34 maunds, as recorded, was the correct weight of the wood. This is clear proof of admission by the convict petitioners.

The case is somewhat analogous to the manner in which Magistrates recorded admission of confessions. While a Magistrate does the recording, the information so recorded emanates from the person confessing or admitting certain facts and there is no bar, subject to certain safeguards, against the use of such evidence against the maker. It was Aslam Riaz who recorded the figures but it was one of the convict‑petitioners who gave him the information.

As the learned Sessions Judge states in his judgment it would be most inadvisable to base a conviction solely on the contents of this particular document and it is necessary for me, in the interests of justice, to ensure that other evidence is available which supports the case for the prosecution. The learned Sessions Judge has very, rightly appreciated the entire evidence available and, in my view, the most important part of his judgment relates to the evidence over the method of weighing the wood. There is evidence to show that after the original weighment in the presence of Aslam Riaz, this witness was, suspicious that the wood was not of the weight stated. He told the convict‑petitioners so but they were adamant in saying that the total weight of the wood was 34 maunds i.e., in confirmation of the figures which had been recorded. This alone, in my view, is a clear indication that the convict‑petitioners had conspired among themselves to cheat Aslam Riaz. Ultimately when the wood was weighed it was found to weigh only 16 maunds. Other important corroborative evidence is to the effect that the convict‑petitioner Abdul Khaliq had that very day purchased 16 maunds of wood at the rate of Rs. 1‑12‑0 a maund and that he had cut this wood up, after which he had taken it to the bungalow of the witness Aslam Riaz, where he offered it for sale at the rate of only Rs. 1‑10‑0 per maund. This fact is admitted by Abdul Khaliq and there is other evidence to support this admission. It is beyond the bounds of human possibility to presume that any person would purchase wood at a higher price and proceed to sell it for profit at a lower price the same day, having also engaged in considerable personal labour in cutting the wood up, unless his intentions were dishonest. The combination of all these circumstances leaves no doubt in my mind that the three convict‑petitioners conspired together to cheat and that they have been properly convicted of this offence.

Finally, learned counsel has endeavoured to argue that the case for his clients has been prejudiced by virtue of fact that the learned Sessions Judge altered the original conviction to one falling under section 420 read with section 511, P. P. C. This, however, is, as learned counsel admits, covered by the provisions of section 238, Cr. P. (G. No prejudice has been caused and this is no valid ground on which my powers of revision are attracted.

In all the circumstances I see no reason to interfere and the revision petition is dismissed.

Petitioners and Public Prosecutor present.

Announced.

A. H. Petition dismissed.

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