P L D 1958 (W (PLP)

MUHAMMAD RAFIQ, J.‑--Qaim Din, aged 36 years, a Gujjar, and Umar Din, aged 32 years, a cultivator, both belonging to District Montgomery, were convicted "under section 394/75, P. P. C." and each sentenced to seven years' rigorous imprisonment. The convicts appeal.

2. The prosecution story is that Muhammad Bakhsh (P. W. 2), a Chowkidar of village Kalarwali, on the 27th December 1956, at ishawela (between 8 or 9 p.m.), was returning home on his bicycle from village Shehar Sultan and when he was on the pucca road he met three strangers, two of whom were the appellants and the third, Ahmed Bakhsh absconder. They asked him to stop and Ahmad Bakhsh immediately caught the handle of the bicycle. He was commanded to hand over whatever he had otherwise they would kill him. He replied that he was a poor Chowkidar and what could he possess, whereupon Umar Din appellant gave him a dang blow which fell on his arm. Qaim Din appellant was armed with a hatchet and he snatched the handker chief Exh. p. 4 containing money from Muhammad Bakhsh, who raised alarm that he was being killed and that the culprits were taking away his bicycle. Khair Muhammad, Muhammad Yar and Wali Muhammad (P. Ws. 3 to 5), who were in the neighbour hood, arrived and the culprits given a fight, with the result that the two appellants were caught at the spot though their companion (Ahmad Bakhsh absconder) ran away with the bicycle. The two appellants were pinioned and first taken to the shop of Muhammad Yar (P. W. 4) at a distance of one furlong and then to the Police Station Shehar Sultan, a distance of seven miles, where the party reached at 5 a.m. and Muhammad Bakhsh made his report. The dang of Umar Din and the hatchet of Qaim Din were also produced. The handkerchief of Muhammad Rakhsh found to contain only Rs. 1‑8-0 was recovered from Qaim Din when his person was searched by the police.

3. Muhammad Bakhsh, when medically examined, had a contused wound 1"+2" on his left writs. Qaim Din appellant had five injuries while Umar Din appellant four: The injuries on all the three were simple and caused by blunt weapon.

4. At the trial, the appellants denied the allegations against them and produced no defence. They, however, admitted the injuries on their persons, just stating that they had been beaten by the people.

5. At the time of arguments before me, the learned counsel for the appellants did not challenge the conviction and merely asked for the reduction of the sentence. On the prosecution evidence also I find that the case against both the appellants was fully proved. The evidence given by Muhammad Bakhsh has been summarised above and need not be repeated. He was corroborated by the three witnesses who had arrived at the spot on the alarm raised by him and were able to catch the appellants. The medical evidence fully bears out their statements. There could be no doubt about .the guilt of the appellants and they were rightly convicted.

6. As to the question of sentence, it may be stated that in addition to the charge for the substantive offence, the appellants had also been charged with a previous conviction each. Qaim Din admitted that he,, on the 16th June 1952, was convicted by the Sessions Judge, Muzaffargarh; under section 395, P: P. C., and sentenced to seven years rigorous imprisonment. Umar Din at first .did not admit his previous conviction, which was tinder section 394, P. P. C., by the Sub‑Divisional Magistrate, Qasur, on the 28th November 1954, when he was sentenced to three, years' rigorous (imprisonment. Subsequently, however, when the prosecu tion was to lead evidence to prove the previous conviction against him he admitted the previous 'conviction and the prosecution led no such evidence.

7. The learned counsel for the appellants argued that under section 511 of the Code of Criminal Procedure it was incumbent upon the prosecution to have proved the previous convictions according to the procedure laid down in that section even though the appellants had admitted their previous convictions. He, how ever, ignores the specific provisions of section 255‑A of the Code. This section was inserted by section 71 of the Criminal Procedure Code (Amendment Act XVIII of 1923) and reads as follows "In a case where a previous conviction is charged under the provisions of section 221, subsection (7), and the accused does not admit that he has been previously convicted as alleged in the charge, the Magistrate may, after he has convicted the said accused under section 255, subsection (2) or section 258, take evidence in respect of the alleged previous conviction, and shall record a finding thereon."

7. The section unambiguously means that when the accuse after the charge has been framed, admits his previous conviction, it does not have to be proved independently under section

511. The learned counsel for the appellants, however, quoted Alif Din v. The State (P L D 1958 Pesh: 6) in support of his contention. This most recent ruling on the point by Abdul Hamid; J., no doubt, lays down "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.", and that "even admission of previous conviction 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. have not been produced". This, if I may respectfully say, will be contrary to the provisions of section 255‑A which does not seem to have been brought to the notice of the learned Judge. It, is true that the learned Judge followed a Division Bench case reported as Daya Ram v. Emperor (A I R 1929 Lah. 768) but this Lahore case was fully considered by a Full Bench of the Lahore High Court in Emperor v. Dalip Singh (A I R 1944 Lah. 25) and explained and distinguished. In this Full Bench case the accused was tried by the District Magistrate of Jullundur on a charge of theft under section 379, Penal Code, aggravated by previous convictions for which he was charged under section 75 of the Code. He pleaded guilty to the charge under section 75 and was given enhanced sentence. He appealed to the Sessions Judge who held that the previous con victions had not been properly proved, as in his view the admission of the appellant was not sufficient. 'The Crown put in a revision against this order of the Sessions Judge setting aside that part of the conviction which was under section 75 and consequently reduc ing the sentence from four years' to two years' rigorous imprison ment, the contention of the Crown being shortly that the Sessions Judge's view of the law was wrong and that the language of sections 221 (7) and 255‑A of the Code of Criminal Procedure, read with section 54 of the Evidence Act, makes it perfectly plain that if an accused admits or pleads guilty to the previous conviction, it is not necessary to prove them in the manner laid down in section 511 of the Code of Criminal Procedure, or in any other manner. To the learned Judges there appeared to be consider able force in the contention of the Crown, and I can do no better than to quote what they said:- "When the Magistrate considers it fit to frame charge under section 254 of the Code of Criminal Procedure in respect of the substantive offence, he should then have recourse to section 221 (7) of the Code and in that charge should include the previous convictions. He should then ask the accused to plead to that charge making it clear to him that he is pleading to the previous convictions distinctly from the original offence. If the accused admits his previous conviction or convictions, they do not have to be proved separately and the Magistrate can take them into consideration in convicting and sentencing him for the main offence. If, however, the accused does not admit his previous convictions, the Magistrate has to proceed to judgment on the substantive charge and if that is a judgment of conviction, he has then to take evidence according to law, i.e., under section 511 of the Code as to the previous convictions and then come to a separate finding upon them after which he will pass the proper sentence under the substantive section read with section 75, Penal Code. "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. If the previous convictions are set forth in the charge and if the charge has been read over and explained to the accused and he pleads guilty to it without any reservation, he is admitting the previous convictions within the meaning of section 255‑A." In the present case, Qaim Din when charged with the previous conviction pleaded guilty to the charge without any reservation and therefore clearly admitted his previous conviction within they meaning of Section 255‑A of the Code of Criminal Procedure. The previous conviction had not to be proved separately as would have been otherwise; necessary under section 511 under Din, it is true, did not at first admit his previous conviction at the time he was charges, but subsequently when the prosecution was about to produce evidence to prove his previous conviction he admitted having been previously convicted had been stated in the charge against him, The provisions of section 255‑A were therefore satisfied in his case also. No question of reducing the sentence of either of the appel lants arises. Both had been hardly out of jail for a few days after serving their previous sentences when they again committed the present heinous offence. It is evident that the previous sentences have had no effect on them and they intend to lead a life of crime, It is true that in case of Lunar Din his previous sentence was only three years, but it may be pointed out that an offence under section 394, P. P. C., of which he has now been convicted, is itself punishable with transportation f or life. I also cannot lose sight of the fact that it was U mar Din who, with a dang caused an injury to the Chaukidar. I refuse to interfere with the sentence of either of the appellants and dismiss their appeal. A. H. Appeal dismissed.