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Criminal Appeal No. 258 of 1956, decided oil 31st October 1957, from the order of Nazir Muhammad Khan, M. I. C. with powers under section 30, Criminal P. C. Abbotabad, dated 18th September 1956.

S. 75‑Previous conviction Proof, mode of‑Mere admission of accused, without proof by prosecution evidence of previous conviction riot enough‑Criminal Procedure Code (V of 1898), Ss. 221 (7), 511.

Where provisions of section 511, Criminal P. C., had not been complied with and there was not a word in the prosecu tion evidence about the previous conviction of the accused, who had been only put a question regarding his previous conviction in the course of his examination under section 342 Criminal P. C., which question he had answered in the affirmative Held, that enhanced sentence in terms of section 75 P. P. C., was not in accordance with law.

Section 511 of the Code of Criminal Procedure requires that evidence of previous conviction should be adduced by the production of one of the certificates or documents mentioned in clauses (a) and (b) of that section, through the hands of a witness. This procedure was not observed in this case. Unless some evidence is tendered by the prosecution to indicate that the accused has a previous conviction against him which renders him liable to enhanced punishment no occasion in law can arise to put a question in respect of it to the accused. It is only the appearance of something in the prosecution evidence which can give an occasion to the Court to put questions to the accused at the time of his examination under section 342, Criminal P. C. It is not correct to invoke the aid of section 75, P. P. C., for imposing enhanced punishment if that section is added to the charge without compliance with the requirements of section 511, Criminal P. C., even admission of previous con viction by the accused is not sufficient if previous conviction has not been deposed to by any of the prosecution witnesses and one of the certificates or documents mentioned in, section 511, Criminal P. C., has not been produced.

Daya Ram v. Emperor A I R 1929 Lah. 768 ref.

Abdul Karim for Appellant.

Dost Muhammad Kamil for Respondent.

Date of hearing : 31st October 1957.

‑Alif Din appellant was sentenced to seven years' rigorous imprisonment by a Magistrate 1st Class, Abbotabad under section 380/75, P. P. C. Against that sen tence lie has preferred an appeal to this Court.

The case against the accused is that on 26th June 1954, he went to the dispensary of Doctor Fatehullah who is a private Medical Practitioner in Abbotabad. The Doctor was absent and his compounder Ghulam Samdani was lying on a bench in the dispensary. His waist‑coat was lying on a chair. The accused enquired about the Doctor and when he was told that he should come after some time he went away. It appears that after a while he came back to the dispensary and lifted the waist‑coat which he had previously seen lying on a chair. Ghulam Samdani was at that time half asleep. He was awakened‑ by the noise of the sliding of the chair which was perhaps necessary to do in order to lift the waist coat. He. says that at that time he saw Alif Din appellant and one oher man who was later on found to be one Abdul Aziz running away from the dispensary with his waist‑coat. He ran after them raising a cry. There were people of which Alif Din accused was arrested at a distance of about a furlong from the dispensary in the compound of the Government College. Amongst the chasers were one Muhammad Hanif a clerk in the office of the Deputy Commissioner Hazara and Shahbaz Khan a Forest Guard. In the meanwhile a police constable arrived and the accused and Abdul Aziz were handed over to him. He led them to the police Station.

According to the evidence of Ghulam Samdani and Muhammad Hanif when Alif Din was caught in the compound of the College Ghulam Samdaui's waist‑coat wa's still in his hand, but according to Shahbaz's statement he had thrown it away a little before he was caught. But all the three were unanimous in saying that he had it in his hand while he was running away. His co‑accused Aziz was said to have been chased by another person Haroon who caught him at another place at some distance from where Alif Din was arrested.

The accused in his statement said that he was arrested on suspicion only. With regard to the waist‑coat he said that it had been thrown in the College compound by another person who was the real thief. He said that on the day of occurrence he happened to be on the road where a cry was raised against a thief. Some persons started running in the thief's direction and he also joined them though he was a ,little ahead of them. Later on he was caught by the pursuers in the belief that he was the thief. With respect to waist coat he said that it was thrown in the College compound by the real thief. He produced one witness Sher Zaman in defence who stated that he and the accused along with Abdul Aziz were at the Tonga Stand and they saw people running after a thief. The accused and Abdul Aziz joined them in the chase. A police Constable was there who arrested the two accused on the ground that they were bad characters.

In so far as the guilt of Alif Din is concerned it is in my opinion well‑established. He was known to Ghulam Samdani Compounder because he had paid a visit to him a little before he entered the shop again for theft. He was pursued and caught by the two witnesses Muhammad Hanif and Shahbaz who are absolutely impartial. They in clear terms stated that they saw the accused running away with the complainant's waist‑coat in his hand. The accused himself admits his arrest and the recovery of the waist‑coat from the place where he was arrested. It is unbelievable that if there had been another person who had committed the theft he would have been spared and the accused would have been arrested in his place. The police constable appeared on the scene after the arrest had been effected by Muhammad Hanif and Shahbaz witnesses. In so far as the guilt of the accused is concerned it rests on evidence which is absolutely beyond doubt. He has been caught almost red handed. As he has committed theft in a shop his conduct falls within the ambit of section 380, P. P. C.

In so far as the application of section 75, P. P. C., is concerned I find that the provisions of section 511, Criminal P.C., have not been complied with. There is not a word iii the prosecution evidence about his previous conviction. Only a question was asked after charges had been framed with regard to his previous conviction under section 379/75, P. P. C., by the Assistant Commissioner, Mansehra on. 15th November 1955, when he was sentenced to one year's R. I. The answer to this was in the affirmative.

Section 511 of the Code of Criminal Procedure requirest that evidence of previous conviction should be adduced by the production of one of the certificates or documents mentioned in clauses (ia) and (b) of that section, through the hands of a witness. This procedure was not observed in this case, Unless some evidence is tendered by the prosecution to indicate that the accused has a previous conviction against him which renders him liable to enhanced punishment no occasion in law can arise to the Court to put a question in respect of it to the accused. It is only the appearance of. something in the prosecution evidence which can give an occasion to the Court to put questions to the accused at the time of his examination under section 342, Criminal P. C. It is not correct to invoke the aid of section 75, P. P. C., for imposing enhanced punishment if that section is added to the charge without compliance with the requirements of section 511, Criminal P. C. Even admission of previous conviction by the accused is not sufficient if previous conviction hat, ,not been deposed to by any of the prosecution witnesses and one .of the certificates or documents mentioned in section 511, Criminal P. C., has not been produced.. It has been held in Daya Ram v. Emperor (A I R 1929 Lah. 768) that a mere admis sion of the accused in respect of his previous conviction is not enough if previous conviction has not been proved in accordance with the provision of section 511, Criminal P. C. Without the existence of any reference to previous convic tion in the prosecution evidence, no occasion arises for putting a question to the accused in respect of it. When the accused is put on examination under section 342, Criminal P. C., he can be asked to explain any of those matters which appear in evidence against him. If no evidence is brought on the record with regard to his previous conviction in accordance with the provision of section 511, Criminal P. C., there is in the eye of law nothing for the accused to explain or admit.

As there was no compliance with the provisions of section 511, Criminal P. C., in this case the addition of section 75, P. P. C., as not in accordance with law and the provisions of that section cannot be utilised for imposing enhanced punishment. The accused should be treated to have committed an offence under section 380, P. P. C., only, and in that case I think a sentence of three years' R. I. would be appropriate.

I accept this appeal to this extent that I hold the accused guilty of offence under section 380. P. P. C., only and maintain his conviction on that charge only. Section 75, P. P. C., requires to be excised from the charge. In view of this the sentence is reduced to three years' R. I.

A. H. Appeal partly accepted.

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