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Criminal Revision No. 379 of 1959, decided on 14th July 1959.
S. 511‑Penal Code (XLV of 1860), S. 75‑Previous conviction‑Can be proved by admission of fact by accused‑Sentence under S. 75 may be based on such admission‑[Alif Din v. The Pakistan State P L D 1960 Pesh. 6 dissented from].
It was contended that a previous conviction must, where it is required to be proved against a person, be proved strictly in accordance with clauses (a) and (b) of section 511 of the Criminal Procedure Code, 1898, and no enhanced punishment could be imposed under section 75 of the Penal Code, 1860, merely on the admission of the accused person himself:
Held, that the methods of proof indicated in clauses (a) and (b) of section 511 are not exclusive methods of proof but they are merely in addition to the ordinary methods provided by law for the proof of a fact. Under the Evidence Act, 1872 an admission of fact is just as good a method of proof as any other. The question, however, as to whether such an admission simpliciter would or would not be sufficient to enable a Court to accept the same as being of such a probative value as to be safely relied upon, for the enhanced punishment against the accused is entirely a different question, and must necessarily depend on the facts and circumstances of each case. Where in the circumstances of a case there could be no reason for the accused being misled as to the specific nature of the previous conviction, the admission made by the accused himself could be safely relied upon for imposing enhanced punishment on him under section 75 of the Penal Code, 1860.
Alif Din v. The Pakistan State P L D 1960 Pesh. 6 dissented from.
A I R 1929 Lah. 768 ref.
Emperor v. Dalip Singh A I R 1944 Lah. 25 approved.
Abdur Rasheed for Petitioner.
Nemo for the State.
This rule is directed against the conviction of the petitioner under section 411 read with section 75 of the Pakistan Penal Code by a Magistrate of the 1st Class, Pirojpur, who has sentenced him to rigorous imprisonment for one year.
2. The appeal preferred against the aforesaid conviction has also been dismissed by the learned Additional Sessions Judge, 2nd Court, Barisal.
3. The petitioner was charged with having been found in possession of certain articles stolen from the house of a peon of the Agricultural Department of the Government of East Pakistan posted at Mathbaria on the 26th of September 1957. The very next day, that is, the 27th of September 1957, whilst the said peon was proceeding, to Barisal by a motor launch he detected the petitioner in possession of the articles stolen from his house soon after the launch came to Tushkhali. He pointed this out to two Constables who were travelling also by that launch, and produced before them the copy of the F. I R. lodged by him on the 26th of September 1957, at the Police Station. The articles were found to tally with the articles mentioned in the said F. I. R. The petitioner was thereupon taken into custody, and sent under the escort of the local chowkidar to the Police Station together with the articles found in his possession.
4. The defence of the petitioner appeared to have been that except for two of the articles found in his possession the other articles belonged to him and his wife who was travelling with him. The two other articles were said to have been surreptitiously introduced into his suit‑case in order to fabricate evidence against him.
5. It transpired from the evidence that neither the complainant P. W. 5 nor the two Constables P. Ws. 3 and 6 were even acquaint ed with the petitioner from before this incident nor was there any suggestion of any previous enmity between the petitioner and any of these persons. The complainant identified all these article which were mostly wearing, apparels' as belonging to him. The Courts below accepted this identification as also the evidence of the prosecution witnesses that they were, in fact, seized from the possession of the petitioner at Tushkhali. The story of the surreptitious introduction of the Achkan and the half pant was disbelieved by the Courts below. Accepting this evidence, the Courts below convicted the petitioner under section 411 of the Pakistan Penal Code, and since it appeared that he had also been previously convicted on the 22nd of September 1953, in respect of an offence under section 457 of the Pakistan Penal Cods which falls under the same chapter, being Chapter 17 of the said Code, he was sentenced to suffer rigorous imprisonment for one year.
6. The learned Additional Sessions Judge has commented upon the illegible nature of the band‑writing of the trying Magis trate as also his imperfect method of recording evidence of the witnesses. The hand‑writing is indeed difficult to read, and it is also true that the trying Magistrate has committed some careless errors in the recording of the evidence. But even after giving the benefit of these errors to the accused petitioner, it is abundantly clear that there is practically no challenge of the prosecution evidence with regard to all but two of the items of clothing shown to have been found in possession of the accused. In fact the accused himself admits possession thereof and claims the same to be his own personal property.
7. Though none of these articles were of any special charac ter so as to be easily identifiable yet the Courts below have accepted the identification of P. W. 5, and I see no reason to differ from the view taken by them, for even though there may not be special marks to distinguish the articles yet articles of personal wear can easily be identified by the owner thereof with a reasonable degree of certainty.
8. It is also significant, as noted by the trying Magistrate, that the accused petitioner disowned only those articles of cloth ing which did not fit his body. But apart from these, there was also another half shirt which was too short for him. The accused also examined a witness on his behalf, but this witness purported to only prove that the accused when arrested claimed these articles to be his own, and was travelling with his wife whom he escorted to her house. It does not appear that this witness was either an intimate friend or relation of the accused petitioner. Hence the Courts below have disbelieved this witness as his story of escorting the wife of the accused petitioner appeared to be improbable. This witness did not, however, go to the extent of supporting the defence of surreptitious planting of any article into the suit‑case.
9. The learned Advocate appearing in support of this Rule, however, has drawn my attention to certain discrepancies in the evidence of P. W. 2 who appeared at one stage, as recorded by the trying Magistrate, to have voluntarily made a statement, but in the next breath to have made an entirely contradictory statement. Both the Courts below have taken the view that this was a genuine mistake on the part of the witness which he immediately corrected, and I see no reason to disagree with that view.
10. Serious comment is also made on the failure of the prosecution to examine the Chowkidar who escorted the accused petitioner to the Police Station, for, it is said that the possibility of planting whilst the petitioner was being escorted to the Police Station had not been excluded. There was, however, no suggestion to any witness examined on behalf of the prosecution that the planting actually took place during the period the accused was being escorted to the Police Station. In the circumstances, I do not see how the said Chowkidar was a material witness in this case. His non‑examination, therefore, does not in my view affect the prosecution case.
11. The learned Advocate next, relying upon the adverse criticisms made of the trying Magistrate by the learned Additional Sessions Judge, argued that the trying Magistrate had not properly applied his mind to the assessment of the evidence in the case, and since his writing was illegible the Additional Sessions Judge, who was the final Court of facts, could not also have properly assessed the evidence, and hence this case must be sent back .for re‑assessment of the said evidence. I am, however, unable to agree with the learned Advocate, for, on a perusal of the judgment of the trying Magistrate, I find that the points for determination have been correctly set out, and the decision of these points is well supported by reasons, after a fair discussion of the evidence adduced in the case.
12. The difficulty in deciphering the hand‑writing of the trying Magistrate does not also appear to have been an insur mountable difficulty for the learned Additional Sessions Judge, for passages from the recorded depositions have been quoted in the judgment of the learned Additional Sessions Judge himself. This he could not have done unless he read the evidence as recorded by the learned Magistrate.
13. Lastly, the learned Advocate has contended that since the conviction of the petitioner under section 75 of the Pakistan Penal Code appears to have been based on the admission of the accused petitioner himself, this was illegal, and should be set aside. According to the learned Advocate, a previous conviction must, where it is required to be proved against a person, be proved strictly, and no enhanced punishment can be imposed merely on the admission of the accused person. In support of this conten tion strong reliance has been placed by the learned Advocate on a decision of the Peshawar Bench of the West Pakistan High Court in the case of Alif Din v. The Pakistan State (P L D 1960 Pesh. 6). In this case the view appears to have been taken that under section 511 of the Code of Criminal Procedure evidence of previous conviction must be proved by evidence adduced in accordance with clauses (a) and (b) of section 511, and unless some evidence is tendered by the prosecution in that behalf the enhanced punishment cannot in law be imposed. A mere admission of the accused is not enough, and the previous conviction has to be proved in accordance with the methods above‑mentioned. In coming to this view, it appears that reliance was also placed on an earlier decision of the same High Court reported in A I R 1929 Lah. 768. But unfortunately a later Full Bench decision of the same High Court escaped the notice of the Court. In the later case of Emperor v. Dalip Singh (A I R 1944 Lah. 25), the Full Bench had occasion to consider the Division Bench decision reported in A I R 1929 Lah. 768, and took the view that the Division Bench judgment could not be considered as having laid down the proposition that an admission of a conviction by an accused is not sufficient proof of that conviction. According to the opinion of the Full Bench, the procedure that should be followed in such cases is as follows
"The combined effect of sections 221 (7) and 255‑A is that the accused is to be charged with the substantive offence and at the same time in anticipation with the previous convictions, the form of the charge being that given in Form No. 28 in Schedule 5 of that Code. If on that charge being put to him he admits the convictions by pleading guilty to the whole charge, there is no necessity for the prosecution to prove those con victions under section 511 of the Code."
The Full Bench also was of the view that there is no legal warrant under section 342 of the Code of Criminal Procedure for a Magistrate to question the accused with regard to a previous conviction.
14. On a perusal of the language of section 511, it appears to me that the decision of the West Pakistan High Court relied upon by the learned Advocate has omitted to notice that the methods of proof indicated in clauses (a) and (b) of section 511 are not exclusive methods of proof, but they are merely in addition to the other ordinary methods provided by law for the proof of a fact. Under the Evidence Act, which is a law in force, an admission of a fact is just as good a method of proof as any other. The question, however, as to whether such an admission simpliciter would or would not be sufficient to enable a Court to accept the same as being of such a probative value as to be safely relied upon, for the enhanced punishment against the accused is entirely a different question, and must necessarily depend upon the facts and circumstances of each case. In the present case, it appears that the trying Magistrate after the close of even the defence evidence framed a separate charge under section 75 of the Pakistan Penal Code, and in this specially mentioned that the petitioner. had on the 22nd day of September 1953, been convicted under section 457 of the Pakistan Penal Code by a Magistrate of the 1st Class at Khulna, and sentenced to suffer rigorous imprisonment for six months. On the body of the charge itself it is endorsed that the charge has been read over and explained to the accused who admits the previous conviction and sentence for six months. In the circumstances, there can be no reason for t he accused petitioner being misled as to the specific nature of the previous conviction. It Was put to him in sufficient details. There could possibly be no chance of his being confused with regard thereto.
15. In the circumstances, I am not only unable to follow the decision of the West Pakistan High Court relied upon by the learned Advocate, but I am also satisfied that in the present case the admission made in the circumstances above indicated could have been safely relied upon for imposing the enhanced punishment upon the petitioner.
16. Inspite of the fact that a previous conviction has been taken into account, the sentence imposed is only of one year's rigorous imprisonment in respect of the substantive offence. This is by no means a severe punishment. For these reasons, I am not satisfied that there is any sufficient ground for inter ference in this matter.
This Rule is accordingly discharged.
K.B. A.
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