P L D 1960 (W (PLP)

Nur Ahmad Perhar for Petitioner. Malik Shaukat Ali for A. G., for Respondent. Dates of hearing : 12th and 19thOctober 1959. Hakim Ali, Rafique, Hanif, Sajawal, Mst. Zohra, Mst. Budho Ghulam Hussain alias Asgher Ali and Wali Muhammad were sent up by the Sharakpur Police to stand their trial under sections 357/380, P. P. C. After recording some evidence the learned Magistrate charged Hakim Ali petitioner and Rafique accused separately under sections 411 and 414, P. P. C. The remaining six accused were also charged separately for offences under section 411, P. P. C. Ghulam Hussain and Wali Muhammad accused were acquitted while the remaining accused were convicted of the various offences with which they were charged. Sajawal and Hanif accused were ordered to pay a fine of Rs. 50 each. Mst. Zohra accused was ordered to pay a fine of Rs.

100. Mst. Budho accused was ordered to pay a fine of Rs.

50. Rafique accused was ordered to undergo rigorous imprisonment for nine months under section 411, P. P. C. and to pay a fine of Rs. 150 under section 414, P P. C. Hakim Ali accused was ordered to undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000 under section 411, P. P. C. He was also ordered to pay a fine of Rs. 50 under section 414, P. P. C. Against these convictions and sentences, it appears, that only Hakim Ali, Rafique and Mst. went up in appeal before the Sessions Judge. The learned Judge set aside the convictions of Hakim Ali and under section 414, P. P. C., but maintained their convictions and sentences under section 411, P. P. C. He also maintained the conviction of Mst. Zohra. Hakim Ali has come in revision before this Court.

2. The facts of the case are briefly as follows: Nur Ahmad (P. W. 1) is a businessman. He has a petrol pump in Bhai Pheru, and he has also some landed property. He used to live in his father's house at Sharakpur. His brother's wife also resided in the upper storey of the house. His father, who was a Patwari, was posted in another village. Being a businessman he occasion ally remained absent from his house for a few days in connection with his business. In a room of the lower storey of the house Nur Ahmad bad kept 94 khesis of different types in a big wooden box. He had also placed Rs. 15,000 in currency notes in between these khesis. The box and the room were locked. The keys of the room used to be with the father of Nur Ahmad. On or about the 26th of May 1958, the father of Nur Ahmad came home and unlocked the said room and found the khesis and the cash and other articles stolen from the box. On getting information about it Nur Ahmad returned to Sharakpur and found his father lying ill. His father narrated the incident to him and on the 1st of June 1956, Nur Ahmad lodged the report (Exh. P. A.) at Police Station Sharakpur. During the course of the investigation, S. I. Iqbal Husain Shah (P. W. 22) raided the house occupied by Hakim Ali accused in Lyallpur on the 6th of July 1958. Hakim Ali accused had taken this house on lease from Ghulam Muhammad (P. W. 4) Hakim AIi and his mistress Mst. Budho were present in the house. The Sub‑Inspector recovered datahi (Exh. P. 295) from the person of Mst. Budho. From the attache‑case (Exh. P. 327) belonging to Hakim Ali accused, he recovered Rs. 2,800 in currency notes of Rs. 10 each (Exhs. P. 14 to P. 293) and articles (Exhs. P. 328 to P. 347). He also recovered clothes and articles (Exhs. P. 349 to P. 384) from the suit‑case (Exh. P. 348) which was also lying in the house. Muhammad Husain (P. W. 13) produced 8 currency notes of Rs. 100 each (Exhs. P. 6 to P. 13) before the police and stated at the trial that these had been given to him for safe custody by Hakim Ali petitioner. Out of the articles recovered from the possession of Hakim Ali only dotahi (Exh. P. 294) has been identified by Nur Ahmad P. W. as belonging to him which had been stolen from his house. There is evidence on the record to show that previously Hakim Ali petitioner was living in straitened circumstances, and had no source of income whatsoever and that his father was also in debt. In convicting Hakim Ali under section 411, P. P. C. both the learned Magistrate and the Sessions Judge have mainly relied on the confession of Muhammad Rafique accused. In his statement under section 242 of the Code of Criminal Procedure, before the framing of the charge, Rafique accused made a detailed confession that tie and Hakim Ali had committed the theft of the cash and the khesis from the house of Nur Ahmad. P. W. and that Hakim Ali had given him Rs. 4,000 and khesis and had retained Rs. 11,000 himself. While making his statement he identified the currency notes (Exhs. P. 14 to P. 293) and Exhs. P. 6 to P. 13 as part of the stolen property. He also claimed that he had got prepared the clothes (Exhs. P. 328 to P. 359) for Hakim Ali from the money which had been stolen from the house of Nur Ahmad.

3. Except for the statement of Rafique accused there is no evidence to prove that the currency notes and the other articles which were recovered from the possession of Hakim Ali were the property of Nur Ahmad or were stolen from his house. It is the case of the prosecution that the dotahi (Exh. P. 294) was lying on a cot and that Mst. Budho accused was also present in the house who had covered her person with the khes (Exh. P. 295). The dotahi (Exh. P. 294) has no peculiar identifying mark on it. But assum ing that this dotahi is the property of Nur Ahmad, there, is no satisfactory evidence that the dotahi was in the exclusive possession of Hakim Ali petitioner or that he w4s retaining it snowing it to be stolen property. In my opinion the learned Magistrate and the Sessions Judge have wrongly used the confession of Rafique accused against Hakim Ali. The confession of the co‑accused could have been taken into consideration only if it was covered by section 30 of the Evidence Act and that too for the limited purpose of lending assurance to the other prosecution evidence. It could not have been made the basis of the conviction of the accused. Section 30 of the Evidence Act reads as follows :‑ "When more persons than one are being tried jointly for the same offence, and a confession made by one of such persons affecting himself and some other of such persons is proved, the Court may take into consideration such confession as against such other person as well as against the person who makes such confession". "Explanation.‑"Offence, as used in this section, includes the abetment of, or attempt to commit, the offence".

4. It will be seen that this section will apply in a case if the following conditions are fulfilled :‑ (a) that more persons than one are being tried jointly. (b) that the joint trial is permissible by the law, and (c) that the joint trial is for the same offence, or for it abetment or attempt. if these conditions are fulfilled then the Court may take into con sideration the confession made by one of such persons affecting himself and some other of such persons, against such other person as well as against the person who makes such confession. Bu if any of the conditions enumerated above is not fulfilled, then such a confession cannot be taken into consideration against any other person except the maker of such a confession. Applying the above test, I fail to see how the confession of Rafique accused could have been taken into consideration against Hakim Ali. It is true that Hakim Ali accused was jointly tried with Rafique accused, but if the learned Magistrate had framed charges against both these accused under section 457 or 380, P. P. C. the position would have been different, but after recording some evidence the learned Magistrate charged Hakim Ali accused under section 411, P. P. C. for being in possession of the currency notes and other articles which were recovered from his possession on the 6th of July 1958, and Rafique accused was charged separately under section 411, P. P. C. for being in possession of the stolen property which had been recovered from him. One of the pre‑requisites of applying section 30 of the Evidence Act is that the persons must have been tried jointly for the same offence. The expression "same offence" means the identical offence and not an offence of the same kind. Hakim Ali and Rafique accused were of course tried' for the same kind of offence, i.e., under section 411, P. P. C. but it cannot be said that they had been tried for the identical offence because the property in respect of which they were charged under section 411, P. P. C. was different in the case of each accused. In this view of the matter I am of the considered view that having regard to the provisions of section 30 of the Evidence Act the C confession of Rafique accused could not have been taken into consideration at all against Hakim Ali accused. If this confession were to be excluded as it ought to be, then the residue of the prosecution evidence does not establish that the articles including the cash and the clothes which were recovered from the possession of Hakim Ali accused were the property of Nur Ahmad complainant or that they were stolen from his house. The currency notes and all the other articles except dotahi (Exh. P. 294) have been claimed by Hakim Ali as belonging to hire. The proof adduced by the prosecution at best leads to a strong suspicion that Hakim Ali may have been one of the culprits, but suspicion howsoever strong it may be cannot take the place of judicial proof. He may be guilty of an offence under section 411, P. P. C., but on the state of the evidence on the record it is impossible to hold that his guilt under section 411, P. P. C. has been established beyond doubt. I accordingly give him the benefit of the doubt and acquit him. He shall be set at liberty forthwith if he is not required to be detained in any other case. K. B. A. Petition accepted.