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Criminal Appeal No. 164 of 1953, decided on 24th Septem ber, 1954.
Recovered from unlocked box lying in house jointly shared by accused, his brother and father-Guilty possession of accused not established.
S. 27-Admission of commission of crime in mashirnama not admissible-Use of the formal and ambiguous word "produce" in mashirnamas not approved.
The mashirnama contained the statement that the appel lant had admitted commission of the crime.
Held, this statement was inadmissible.
If a statement is made to the police by an accused in custody that he has concealed or kept the property in such and such a place and then the property is so found, then that statement would become admissible and provide unambiguous evidence. The formal and ambiguous word "produce" is commonly used in such mashirnamas without any amplifica tion or explanatory details.
Imdadali Agha, for Appellant.
Advocate-General, for Crown.
-The appellant Khan, son of Uris, was convicted by the learned Additional Sessions Judge Nawabshah, Mr. M. A. Kazi, under section 412 P. P. C. 1n disagreeing with two assessors and in agreement with one assessor, and was sentenced to 3 years' rigorous imprisonment.
The prosecution case in brief was that a dacoity occurred on the night of the 22nd May, 1950, in the house of Haji Imambux where he lived with his wife and his son Shahu and his daughter-in-law. Five dacoits entered the house and caused four contusions and one incised wound to Imambux since he refused to hand over the keys of his safe. The lock of the safe was broken by the dacoits but they were unable to open it and had to be content with breaking open a wooden box and removing its contents consisting of silver ornaments worth Rs. 60 and clothes. A neighbour Daud was shot at on approaching. The dacoits left, and Muso, son of Imambux, a mile away, was sent for. He informed the nekmards and then went to lodge the F. I. R. at Doulatpur Police Station without delay. The Head Constable reached the scene of offence where he found sets of prints, four shod and one naked. He examined the victims and the neighbours and took a list of the property from Shahu. On the 24th May the S. I. P. took up the investigation.
On the 31st May, the appellant Khan was produced before the police, according to the S. I. P. by Rais Wadal Mir and according to the Rais by the appellant's brother. He was arrested and took the police and the mashirs, one of whom was the Rais, to his house in Bado village about 21 miles from the scene of dacoity. The appellant produced a silver Huss and a currency note of Rs. 10 from a wooden box. This box, according to the S. I. P., and the mashirnama, was not locked, and it is clear that the Rais makes a mistake when he says that Khan unlocked the box with his own key. The Rais stated in cross-examination that they had been sitting at Khan's otak for 2 or 3 hours till noon, and then Khan was brought at about 11 a.m. and they proceeded to search his house and kept on searching it till again prayer time. The S. I. P. states that they reached the house about 11 a.m. and Khan came in the evening. Both the S. I. P. and the Rais agree that Khan's brother and father lived with him in the same house.
The appellant did not dispute the fact that the silver Huss belonged to Imambux, nor was there any cross examination of Shahu who had given a list of property to the police to show that he had omitted to mention the Huss. Shahu in evidence stated that he had purchased it from one Narain of Doulatpur 10 or 12 years previously.
The defence of the appellant was that there was a dispute between his uncle and a grandson of Haji Imambux regarding a garden and its allotment as evacuee property. He was, according to the Rais, a relative of Abdul Karim, Admittedly there had been litigation between the relations of the first informant Muso son of Imambux and the brother of Abdul Karim.
The appellant and Abdul Karim were known before the dacoity to Haji Imambux and Shahu ; similarly Nabi Bux, a co-accused, was known to them as well as to the neighbour Daud, who claimed to have identified Nabi Bux as one of the dacoits. In evidence, Muso said that he had gone to the scene and had been told by Shahu that Nabi Bus had been identified; yet his name did not appear in the first information. The learned Judge considered that since the dacoits were muffled inmates of the house had not been able to identify any of the dacoits. The fact, therefore, that Khan and Abdul Karim were previously known to the inmates may be taken as satisfactorily explained. Footprint tests of the other accused were held but not of Khan, and no suggestion of this omission is upon the record. The learned Judge, however, did not rely upon the footprint test in which the pagi claims he identified shod print of Abdul Karim, Phatu and Nabi Bux.
The only evidence against the appellant was the produc tion of the silver huss. Besides the discrepancies pointed out above as to the time of the production, we have also the fact that Shahu stated that the police secured the articles on search and that they were not produced by Khan. Assum ing, however, that the article was produced by Khan, yet this was produced from an unlocked wooden box lying in the house where his brother Jado and his father also live.
The mashirnama contained the statement that the appel lant had admitted commission of the crime. This statement is of course inadmissible. It is not for Courts of Law to; dictate the police what they should or should not write in their mashirnamas, for as was said by Lord Porter in Crown v. Khawaja Nazir Ahmed ((1945) Lah. 1), it is of the utmost importance that the judiciary should not interfere with the police in matters which are within their province. But these mashir namas are intended not merely to satisfy the superior police officers but also to be produced in Courts of Law. We often find such obviously inadmissible statements in mashirnamas and think that the investigating officers do not bear in mind sufficiently section 27 of the Evidence Act. The words of Sir John Beaumont in Kottaya's case (A I R (1947) P C 67) contain useful advice :---
"Information supplied by a person in custody that 'I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife ; knives were discovered many years ago. It leads to the discovery of the fact that a knife concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added with which I stabbed A these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
Accordingly it was held that words such as "I hid the spear in a yard in my village, I will show you the place" were admissible.
If then in such cases a statement is made to the police, by an accused in custody that he has concealed or kept the property in such and such a place and then the property is so found then that statement would become admissible and provide unambiguous evidence. The formal and ambiguous word "produce" is commonly used in such mashirnamas without any amplification or explanatory details.
In the present case, therefore, there is nothing on the record to show how this silver huss came to be within the wooden box. So far as the evidence goes, we do not know whether Khan, his brother or his father was the most likely person to have kept the huss in that box, while it is quite possible that Khan may have obtained know ledge later that either his brother or his father had kept the huss in the box. We appreciate the fact that illustration A to section 114 is only an illustration and does not exhaust presumptions of fact, but we think in this case that the presumption of guilty possession is not established.
We, therefore, set side the conviction and sentence of the appellant, and direct that he be set at liberty.
A. H. Conviction set aside.
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