P L D 1953 Lahore 451 (PLP)

SHABIR AHMAD, J.‑--This is an appeal under section 417 of the Code of Criminal Procedure against an appellate decision of Mr. Masud Ahmad, Sessions Judge, Mianwali, which reversed the decision of Mr. Muhammad Sharif, Magistrate 1st Class, Mian wali, whereby, Saadullah khan respondent had been sentenced to six months' rigorous imprisonment under section 411 of the Pakistan Penal Code. The prosecution case against the respondent was that on the 2nd of August 1952, he was found in possession of a stolen railway sleeper. On the 22nd of March 1952, four railway sleepers had been found missing and this fact was reported to the police by Zahoor Ullah, Assistant Way Inspector, Railways posted at Daud Khel. The police continued investigating the case and it was on the 2nd of August 1952, that, on the information given by the respondent, one sleeper was recovered from a place near Masoomwali Khanqah. The learned Sessions Judge, like the learned trial Magistrate, accepted the evidence led by the prosecution but, holding that the fact that the sleeper in question was recovered at the in stance of the appellant would not prove that it was in his ex clusive possession especially when the place from which the recovery was made was an open place accessible to every one, acquitted the respondent. Mr. C. M. Sharif, A. A. G., who appeared for the appellant, contended that the evidence of recovery was, in the present case, sufficient to bring home an offence under section 411 of the P. P. C. to the respondent. It was urged on behalf of the respon dent, on the other hand, that the circumstances mentioned by the learned Sessions Judge were sufficient to negative the presumption of guilt against the respondent. The learned counsel for the parties cited a number of decided cases which it is necessary to consider. Before considering the decided cases cited by the learned counsel for the parties, I might express my own views on the question. It appears to me that whether or not the recovery of an article at the instance of the accused person leads to an inference that he was proved guilty of an offence is, in each case, a question of fact to be decided on the circumstances of that particular case and no rule of general application can be laid down. It is possible that in one case the recovery of an article at the instance of an accused person from a place not in his possession may not be sufficient to prove him guilty of an offence while in another case such pointing out may prove the case against him to the hilt. What a Court has to see in such cases is whether the knowledge of an accused person of the place where an incriminating article lay would prove that he had placed the article there. The finding of the Court one way or the other will be about a question of fact and it is well settled that the question whether a fact is proved or not is essentially a question of fact and not one of law. Coming now to the decided cases, the one cited by the learned counsel for the Crown is Sher Muhammad v. Emperor (A I R 1945 Lah. 27), in which Sher Muhammad appealed against his conviction under section 201 of the Penal Code. The main evidence against the accused was that he had pointed out a place where a dead body of a human being was lying. It was held by the learned Judge of this Court who heard the appeal that in the circumstances of that case the knowledge of the accused of the place where the dead body lay led to the inference that he had placed the body there. It was pointed out by the learned Judge that if a person gives information about an incriminating article, his knowledge of the place where it lay may be due to one of the following reasons, (1) that he had seen someone placing the article there, (2) that be had been told by someone that the article had been placed there and (3) that he had himself placed the article there, and it is hardly open to question that in all cases of this kind the above are the only three possibilities which can explain the knowledge of the accused of the concealment of an incriminating article. If, therefore, an accused person does not explain his knowledge of the place where an incriminating article lies, he may be either trying to save someone in whom he is interested or may have no reason able explanation to offer. The case relied upon by the Crown counsel lays down, and in my view rightly, that the fact that the incriminating article is recovered at the instance of an accused person from a place not in his possession cannot negative his guilt if the circumstances show that he had himself placed the article at the place from which it was found. Of the decided cases which can be said to have taken a view contrary to the one in Sher Muhammad v. Emperor (supra), the first one that needs consideration is Queen‑Empress v. Gobinda (I L R 17 All. 576). This was a judgment of two learned Judges who, in a brief judg ment, said that the mere fact that a person pointed out a place where stolen property was concealed is no evidence against him if that place is not in his own use or in his own field but is in the field of another man. It was added that to support a conviction in such cases there must be some evidence which suggests that the accused himself concealed the article in the place where it was found and that the mere fact that the accused pointed out the article was not sufficient for conviction if it was doubtful whether the accused or some other person concealed the article or that the accused had in some other way obtained information that the arti cle was at the place where it was found. After carefully considering the observations of the learned Judges can see no ground for holding that this decision, in any manner, helps the respondent because this decision also contemplates that a conviction of a person may be based on his pointing out an incriminating article in a place not in his possession if the circumstances lead to the inference that he had himself placed the article there. The next case that requires consideration is Hakiman v. King Emperor (20 P R 1905 (Cr.)). In this case decided by a Single Judge of the Punjab Chief Court an incriminating article was recovered from a shed which was in possession of several persons other than the accused, and it was held that the giving of the information, even if proved, was not conclusive of the guilt of the accused. I am of the view that this case also does not lay down any principle con trary to the one laid down in Sher Muhammad v. Emperor (supra), but if it does that view is obiter dicta because the learned Judge had, in an earlier part of the judgment, held the evidence about the pointing out of the incriminating article to be unsatisfactory in character. The next case that requires notice is Crown v. Buta Singh (1 P R 1917 (Cr.)). From the headnote it would appear that the Division Bench of the Punjab Chief Court which decided the case laid down that the fact that a person pointed out a place where stolen property was con cealed cannot justify the inference that the person who pointed out the stolen article had received or retained it, if that place is not his own, and that the mere knowledge of the place of concealment did not necessarily lead to the conclusion that the person having such knowledge actually received the article or participated in the act of concealment. The judgment itself makes it clear that the recovery at the instance of the accused was not considered suffici ent to justify his conviction under section 411 of the Penal Code because a son of his was one of the dacoits and the possibility that the dacoit had informed his father of the place where the property lay concealed was not excluded. In view of what has been said above, it is clear that the finding of the learned Sessions Judge that the pointing out of the stolen sleeper by the respondent was not sufficient to prove his guilt as the place where the sleeper lay was not in his possession was not necessarily correct. The learned Judge was not considered all the circumstances which he should have done in order to gauge the weight attachable to the pointing out of the sleeper by the respondent. The sleeper lay buried about two feet under the ground and the place where the article lay buried was not proved to be anywhere near the residence of the respondent or the place where he worked. There is no evidence on the record to even suggest that anyone in whom the respondent was interested had any hand in the matter or was even suspected in the case. In these circumstances, I fail to see why an inference should not be drawn against the respondent that he had himself placed the sleeper at the place from which it was recovered at his instance, and even if the only evidence against the respondent were the one rejected by the learned Sessions Judge, I would not have had any hesitation in reversing the order of acquittal. There is, however, another piece of evidence against the, res pondent which the learned Sessions Judge has entirely overlooked. The investigating officer deposed that the respondent had said that he will point out the place where he had buried the stolen sleeper. If this statement is believed and is not inadmissible in evidence, it would be conclusively proved that the stolen sleeper had been buried by the respondent. There is no reason not to accept the statement of the investigating officer with regard to the respondent having made the statement attributed to him, but the learned counsel for the respondent urged that the above statement of the respondent was inadmissible because it amounted to a confession. This contention, however, cannot be accepted as it overlooks the clear words of section 27 of the Evidence Act which reads as follows:‑ "Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." The plain meaning of section 27 of the Evidence Act is that if a confession to a police officer leads to a recovery, evidence about the confession is admissible in spite of the provisions of the two preceding sections. In these circumstances though I am prepared to agree with the learned counsel for the respondent that the statement of the respondent that he had stolen the sleeper would not be admissible in evidence because it did not directly lead to the dis covery but I am not prepared to accept his contention that the statement of the respondent that lie had buried the sleeper would be inadmissible. The learned counsel urged that the statement should be read as, "The stolen. sleeper lies buried there", but could cite no authority to support his contention that the statement be dis torted in the manner suggested by him: On the other hand, there is a decision of a Full Bench of this Court in Sukhan v. Crown (I L R 10 Lah. 283 (F. B.)), laying down that the part of the statement which says that the accused person had placed a thing somewhere could not be excluded. In the above mentioned Full Bench case the accused was charged with the murder of a boy and during the course of investigations fated, I had removed the karas, had pushed the boy into the well and had pledged the karas with Allah Din". In consequence of this information, the karas were recovered from Allah Din and were identified as those worn by the boy at the time of his disappearance. The question referred to the Full Bench was whether the whole or ‑any part of the statement of the accused was admissible against him under section 27 of the Evi dence Act. It was held by five of the seven learned Judges, who composed the Full Bench, that the statement of the accused that he had pledged with Allah Din the karas subsequently recovered from the latter was admissible under section 27 of the Evidence Act but that the rest of the incriminating statement could not be received in evidence. This view of the Full Bench of this Court was accepted as correct by their Lordships of the Privy Council in Kottaya v. Emperor (1). On the language of section 27 and on the above two decisions of unquestionable authority, the statement of the respondent that he had buried the stolen property would be admissible. In view of the evidence discussed above, it is hardly open to question that the prosecution had succeeded in establishing beyond all reasonable doubt that the stolen sleeper was buried at the place where it lay by the respon dent, who was therefore guilty of an offence under section 411 of the P. P. C. Consequently the acquittal of the respondent is set aside and a conviction under section 411 of the P. P. C. is. recorded against him. This leaves only the question of sentence. The respondent was acquitted by the learned Sessions Judge on the 10th of November 1952, after he had undergone about two months and a half of the six months' rigorous imprisonment imposed on him by the learned trial Magistrate. It appears that the stolen sleeper was old and was not more than Rs. 5 in value. Consi dering all the circumstances, I deem it unnecessary to recommit the respondent to jail and I, therefore, sentence him to the term of imprisonment already undergone by him, till the time when the appeal against order of acquittal was passed by the learned Sessions Judge. B. Z. KAIKAUS, J.

‑I agree. A. H. Appeal accepted.