P L D 1960 (W (PLP)

The observations of Faucett, J. in Emperor v. Shivbut (I L R 52 Bom. 238), were approved. The case Rustom Ardeshar v. Emperor (A I R 1948 Bom. 163), was also followed.

15. Keshav Mantra Shrivastava v. The State (A I R 1952 All. 122), lays down :‑ "No doubt subsection (4) of section 5 opens with the words "notwithstanding anything contained in the Criminal Procedure Code" but that exception is designed to overcome the provisions under section 166 (1), Cr. P. C. which permits of cognizable offen ces to be investigated by an officer in charge of a police station. The words do not go any further, because Act 11 of 1947 does not lay down any rules governing the investigation and the rules contained in the Criminal Procedure Code continue to govern investigation even in cases under that Act. Thus the investi gation by an officer below the rank of Deputy Superintendent of police however undesirable, is a mere irregularity and not an illegality vitiating the investigation and the complaint based on it." This case followed Promod Chandra Shekhar v. Rex. This case is relevant and material to the present case because the words "notwithstanding anything contained in the Criminal Procedure Code" which were brought in section 5‑A of the Prevention of Corruption Act on the 17th November, 1953 by, the Criminal Amendment Act XXXVII of 1953 were interpreted.

16. The Supreme Court of India in H. A. Rishbud and another v. The State of Delhi (A I R 1955 S C 196), held " It may be of considerable importance to the accused that the evidence is collected under the responsibility of the autho rised and competent investigating officer or is at least such for which such officer is prepared to take responsibility. It is true that the result of a trial in Court depends on the actual evidence in the case A defect or illegality in investigation however serious has no direct bearing on the competence or the procedure relating to cognizance or trial. No doubt a police report which results from an investigation is provided under section 190, Criminal P. C. as the material on which cognizance is taken, but it cannot be maintained that a valid and legal police report is the foundation of the jurisdiction of the Court to take cognizance. Section 190, Cr. P. C. is one out of a group of sections under the heading "conditions requisite for initiation of proceedings." The language of this section is in marked contrast with that of the other sections of the group under the same heading i.e., sections 193 and 195 to 199, Cr. P. C. These latter sections regulate the competence of the Court and bar its jurisdiction in certain cases except in compliance therewith. But section 190 does not. While no doubt, in one sense, clauses (a), (b) and (c) of section 190 (1) are conditions requisite for taking of cognizance, it is not possible to say that cognizance on an invalid police report is prohibited and is therefore a nullity. Such an invalid report may still fall either under clause (a) or (b) of section 190 (1) and in any case cognizance so taken is only in the nature of error in a proceeding antecedent to the trial. To such a situation section 537, Cr. P. C. is attracted. If, therefore, cognizance is in fact taken on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which followed it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not affect the competence and the jurisdiction of the Court for trial is well settled . . . . . Where the cognizance of the case has in fact been taken and the case has proceeded to termination, the invalidity of the precedent investigation does not vitiate the result, unless mis carriage of justice has been caused thereby."

17. Similarly in the State of Madhya Pradesh v. Veereshwar Rao Agnihotra (AIR 1957 SC 592), it was observed that a defect in the nature of an investigation by a police officer below the rank of a D. S. P. without an order from a Magistrate in contravention of subsection (4) of section 5 of Prevention of Corruption Act did not affect the jurisdiction of the Special Judge, who had jurisdiction to try the accused under section 7 of the Prevention of Corruption Act, 1947.

18. Again in Din Dayal Sharma v. State of U. P. (A I R 1959 S C 831), it was laid down that generally a conviction is not vitiated because there has not been strict compliance with the provisions of the Act in the matter of investigation by a police officer. The decision in H. N. Rishbud v. State of Delhi was followed.

19. In view of the above decisions of the Supreme Court of India, the view to the contrary is no longer good law in India. The decisions of the majority of the Indian Courts and of the highest Court in India (which or binding in India) are contrary to the views taken by Hasan Ali Agha, C. J., and Vellani, J. and my learned brother Constantine, J. and are in conformity with the following decisions of the Pakistan Courts.

20. Sharif, J. in Salahuddin v. The Crown (P L D 1956 Lah. 87), held that an irregularity in the investigation did not affect the jurisdiction of the trial Court, for the conviction or acquittal of an accused person did not depend upon the question of the particular officer, who actually conducted the investigation which resulted in the trial. The case had to be determined on the evidence that was given at the trial against an accused person, and the question whether that evidence had in the first place to be collected by an officer not authorised to do so was of very minor importance and did not really affect the result of the trial.

21. Lari, J. in Shaikh Abdul Majid v. The State (P L D 1958 Kar. 86), held that a mere irregularity in investigation (i.e., investigation by Special Police Investigation Agency against a non‑government servant) cannot affect the legality of the proceedings in a Court of law.

22. The question involved was examined at length in The Crown v. Noor Alam (P L D 1955 Lah, 667 (D. B.)). This case has been distinguished by Constantine, J. on the ground that the facts were different. It is true that in this case only part of the investigation was carried on by an unauthorised officer. The observations made in this case however have full force and are pertinent to the question before me. It was held that " Even if investigation had not been in conformity with the legal provisions of the proviso to section 3 of the Prevention of Corruption Act, it does not necessarily follow that the subsequent trial should be vitiated. The trial Court will have to decide the case on the basis of evidence led before it and the mere fact that the agency which collected such evidence was in law not authorised to do so, should not introduce an inherent jurisdictional defect in the trying Court. If, of course, the intention can be read into the proviso that the jurisdiction of the Court itself be barred when an unauthorised police officer conducts the investigation, then the position might be different. But I find no words in the proviso or anywhere in Prevention of Corruption Act, 1947 which should lead to such a conclusion. The police officer may find himself in difficulties during the investigation if he is defined or resisted and the law may not give him protection or he may make himself liable to criminal or civil action, in certain circumstances but it is hard to see why his disabilities should prevent a Court of law from assessing the value of evidence placed before it, in the absence of an enactment, express or implied, to the contrary. Presuming that the officer making the report was not duly authorised by the order of a Magistrate his report could still be held to fall within the purview of section 190 (1) (b) of the Code or, in the alternative, can be accepted as a complaint within subsection (1) (a) of that section . . . . . even a police report in a non‑cognizable offence which the police has not been duly ordered by a Magistrate to investigate would be included in the word `report'. In the alternative, there is no reason if such a report is not regarded as a police report, not to accept it as a complaint within the meaning of clause (a) of subsection (1) of section 190 of the Code of Criminal Procedure . . . . There is nothing in law to prevent a police officer making a complaint in a case on which the facts have come to his knowledge. On this view too it is difficult to see why the jurisdiction of the trial Court should be ousted merely because the report was submitted by a police officer who was not authorised to investigate. In my opinion the infringement of this proviso should be regarded merely as an irregularity falling within the ambit of section 537 of the Cr. P. C. and unless it has caused actual prejudice to the accused it should not be held to vitiate the trial. The distinction between an irregularity and illegality is one of degree rather than of kind as was made clear by the Privy Council in Pulukuri Kotayya v. Emperor. A I R 1948 P C

63. Every irregularity involves the breach of a legal provision even though it may be expressed in non mandatory terms. If an 'illegal arrest, as has been authori tatively held by the Privy Council, is not enough to invalidate the trial, by parity of reasoning, an investigation done in con travention of a provision of law, should not necessarily affect the con:pctencN of the trial Court." In this case the question involved was fully and exhaustively considered and decided. I am in respectful agreement with the reasoning and conclusions arrived at above by the Division Bench.

23. Shabir Ahmad, J. in The Crown v. Subhan (P L D 1956 B J 9), held " I do no see how the fact that the cases against them were investigated by police officers who were not competent to investi gate them will help the accused persons. At the stage of trial a Court of law is concerned with the determination of the question whether or not an accused person is guilty of the offence for which he is standing trial and the fact that the investigation was conducted by an officer who had no authority to conduct it is in my opinion entirely immaterial. If however the law provides that a Court of law can try only if it has been investigated into by a particular agency, then the fact that sonic other agency conducted the investigation will no doubt take away the jurisdiction of the Court.

24. The case Crown v. Nur Alam (P L D 1955 Lah. 667), was followed and the reasoning adopted by a Division Bench of the Dacca High Court in Abdul Nur alias Nur Mina v. The State (P L D 1958 Dacca 145), although in that case the entire investigation was held by an incompetent police officer and had not been authorised by a first class Magistrate:

25. In a case under section 161, P. P. C. committed by a Central Government servant investigation was held by an inspec tor of the Sind Anti‑corruption Police instead of by the Special Po lice Establishment. It was objected on behalf of the accused that the trial was bad. The Supreme Court of Pakistan held in Crown v. Mehar Ali (P L D 1956 S C (Pak.) 106), that it was by no means clear that even if it could be established that investigation by the Sind Anti corruption Inspector was irregular, the result would be to deprive the Special Magistrate of jurisdiction or otherwise to affect the validity of the procedure in the trial.

26. Since the main ground of challenge to the result of the trial is of illegality in‑the investigation, it is pertinent to examine decided cases to see the effect on the trial of illegalities committed in the course of investigation. One of them is illegal arrest. The Supreme Court of Pakistan in the case of (Commander) M. S. K. Ibrat v. Commander in Chief, Royal Pakistan Navy and others (P L D 1956 S C (Pak.) 264), has held that the mere fact that a person has been arrested in an unauthorised manner does not generally affect the jurisdiction of the Tribunal before which he is brought. Reliance was placed on the case Ex parte Susanna Scott ((1829) 9 B and C 446), and the remarks of Lord Cockburn, C. J. in his Charge to the jury in the Queen v. Nelson and Brand : (Charge to the Grand Jury second Edition page 118) "Suppose a man to commit a crime in this country, say murder, and that before he can be apprehended he escapes into some country with which we have not an Extradition Treaty, so that we could not get him delivered up to us by the authorities, and suppose that an English Police Officer were to pursue the malefactor, and finding him in some place where he could lay hands upon him and from which he could easily reach the sea, got him on board a ship and brought him to England, and the man were to be taken in the first instance before a Magistrate, the Magistrate could not refuse to commit him. If he were brought here for trial it would not be a plea to the jurisdiction of the Court that he had escaped from justice and that by some illegal means he had been brought back. It would be said `Nay' you are here ; you are charged with having committed a crime and you must stand your trial." Similarly the Privy Council in Prabha v. Emperor (AIR 1944 P C 73) has observed "The contention of the appellant was that his arrest having been effected in Sind territory was illegal and that the illegality of his arrest vitiated the whole subsequent proceedings. Their Lordships reject this contention . . . . . . In their Lordships' view the validity of the trial and conviction of the appellant was not affected by any irregularity in his arrest". Then we have a case of contravention of sections 172 and 162, Cr. P. Code. The Privy Council in Zahiruddin v. Emperor (A I R 1947 P C 75 P L D 1947 P C 13) held that a contravention of section 172, Cr. P. Code namely, the failure of the police officer to keep a diary lays the evidence of the police officer open to adverse criticism and may diminish its value, but it does not have the effect of making that evidence inadmissible. It was also held that if the contravention of section 162 (1), Cr. P. C. consists in the signing of a statement made to the police and reduced into writing, the evidence of the witness who signed it did not become inadmissible and there were no words either in the section or elsewhere in the statute which expressed or implied such a consequence, and still less could it be said that the statute had the effect of vitiating the whole proceedings, when evidence was given by a witness, who had signed such a statement, though the value of the evidence may be seriously impaired as a consequence of the contravention of the statutory safeguard against improper practices. It was, however, held that the use by a witness of his police statement while giving evidence makes it the duty of the Court to disregard the evidence of that witness as inadmissible. Again we have a case of illegal search by a police officer not competent to effect a search. In Karuma v. The Queen (P L D 1957 P C 32) the objection was that the search was made by a constable, whereas only an officer of or above the rank of an Assistant Sub‑Inspector was authorised to make the search and it was therefore urged that the evidence of the constable was not admissible. Their Lordships of the Privy Council held "In their Lordships' opinion the test to be applied in con sidering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the Court is not concerned with how the evidence was obtained". These observations have a direct bearing on the question before us. The Court is concerned with the evidence produced before it, and not how it was procured. If the incompetency of a police officer to search does not affect the admissibility of the evidence to be produced at the trial or the validity of the trial, the incompe tency of the investigating police officer cannot affect the admis sibility of the evidence or validity of a trial duly, held according to law ; but on the reasoning of Constantine, J.. the accused could not be allowed to be tried for any offence disclosed as a result of an illegal search, nor could evidence of such search be allowed to be tendered.

27. Constantine, J. has stressed that in face of the positive prohibition, the illegality is such that to permit a trial to take place on a report by an incompetent police officer on an illegal investiga tion will be allowing that to be done indirectly which could not be done directly. But if the trial is not held contrary to, the mode of trial, there is no contravention of this principle. It is the trial with which we are concerned and which has resulted in the conviction. The trial in this case has been held according to law and is valid. We are not concerned with the investigation which was an antecedent proceeding and concluded long before the trial. In section 5‑A, Prevention of Corruption Act, there is a prohibition that a police officer below the rank of a D. S. P. cannot investigate into offences triable under the Act, but the prohibition is not absolute, for a police officer below the rank of a D. S. P. would be competent to investigate, if he is permitted by a Magistrate of the First Class to investigate into an offence. The C breach lies in the failure to obtain an order from a Magistrate of the First Class to investigate, and is therefore an irregularity. There is a breach of an enactment, but we have to see its effect on the trial. The breach of a positive enactment may be an illegality or a mere irregularity curable under section 537, Cr. P. C. An illegality in the mode of trial is an illegality which vitiates the trial but instances of breach of positive provisions relating to investiga tion have been cited above, in which it has been authoritatively held that the breach did not affect the admissibility of the evidence or the resulting trial. The holding of investigation by an incompetent police officer is a mere irregularity and not an illegality. When a person accused of the commission of an offence is brought before a competent Court it is not a plea to the jurisdiction of the Court that he had been brought before it by some illegal means. Similarly it can be said that it is not a o jurisdictional defect in the trial if the investigation is conducted by an incompetent officer or the matter is brought to the notice of the Court in an irregular manner.

28. The investigation under the Code consists of proceeding to the spot (2) ascertainment of facts and circumstances of the case, (3) discovery and arrest of the suspected offender, (4) collection of evidence relating to the commission of an offence which may consist of (a) examination of various persons and record ing of their statements in the police diaries including the statement of the accused and (b) search of places or seizure of things considered necessary for investigation and to be produced at the trial and (5) formation of the opinion on the material collected whether there is a case for the accused to be placed before the Court for a trial and if so to take steps to file a charge sheet under section 173, Cr. P. C. An investigation usually proceeds to a trial. Thus though an important purpose of the investigation is to collect evidence of guilt of the suspected offender and to form an opinion whether a prima facie case is made out, which is the basis of an arrest and the subsequent report by the police to a Court to try an offender, but as observed by the Supreme Court of India in H. A. Rishbud and another v. The State of Delhi (AIR 1955 S C 196) that though a police report is provided under section 190, Cr. P. C. as the material on which cognizance is taken, it cannot be maintained that a valid and legal report is the foundation of the jurisdiction of the Court to take cognizance. Similar view has been taken in Crown v. Noor Alam (P L D 1955 Lah. 667). The report of a police officer incompetent to investigate can still be taken as a report under section 190 (1)1 (b), Cr. P. C., on which cognizance can validly be taken by the Court.

29. Though on a report sent by a police officer as a result of his investigation cognizance is taken by a Court, it should not be taken that the conviction results from the report or the investigation. It is not correct to say either that the conviction is had as a result of the investigation. The investigation by the police is not the foundation on which the structure of the trial is built, so that if investigation is tainted the trial must also be deemed to be so tainted as to be vitiated in law. It is merely an antecedent proceeding. Investigation is conducted by a police officer in exercise of powers conferred on them by the Code, but the trial is held independently by a Court of law in exercise of its own powers. The Court cannot use as substantive evidence the state ments recorded by the police officers. It must decide the guilt or innocence of an accused person on the evidence before itself. It could not convict on the statements contained in or on the contents of the police diaries. Therefore, the trial is not really founded on, though it may follow, a police investigation, nor does a trial result from a police report, only. A trial can be held even on a complaint without a police report and a report by an incom petent police officer, as held in Crown v. Noor Alam, can serve as a basis of cognizance under section 190 (1) (b) of the Criminal Pro cedure Code.

30. Section 5‑A, Prevention of Corruption Act does not deal with the question of who can make a complaint, or how is cognizance to be taken. It lays down merely who can investigate. There are no words in section 5‑A of the Act or in any other law which provide that the power of Court to take cognizance or its jurisdiction would be barred if investigation is held by an incom petent officer. There is nothing in section 5‑A of the Act, which deals with the competency of the person who makes a report or a complaint on which cognizance can be taken. The real question is whether the jurisdiction of the Court depends upon the compet ency of the Police Officer who conducts the investigation or submits a report or on the provisions of the law embodied in the Code or elsewhere relating to competency or jurisdiction of the Court, which held the trial.

31. It has been held that section 190, Cr. P. C. confers power on the Court to, take cognizance of offences which are not governed or restricted by the competency of the investigating agency. It is not questioned in this case that the Special Judge could take cognizance and had jurisdiction to try the offence and the offender. Jurisdiction to try is conferred on the Special Judge also by section 4 of the Pakistan Criminal Law Amendment Act, 1948, which provided as follows "Section 4 (I).‑A Special Judge shall have jurisdiction within such territorial limits as may be fixed by the appropriate Govern ment by Notification in the official gazette and may take cognizance of any offence committed within such limits and triable under this Act upon receiving a complaint of facts which constitute such offence or upon a report in writing of such facts made by any police officer. * * * * * * * * * This provision makes it clear that the legislature had specifically provided that a Special Judge had jurisdiction to try an offence triable under the Act upon either (a) complaint of facts which constitutes an offence and (b) upon a report in writing of such facts made by any police officer. Thus the jurisdiction to try is) not dependent upon the report of a competent police officer. If can be exercised on a report of any police officer though incompetent to investigate. The legislature made no change in this provision, even though it provided as follows in section 5‑A, Prevention of Corruption Act, 1947 "Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (Act V of 1898), no officer below the rank of Deputy Superintendent of Police shall investigate any offence punishable under any of the sections of the Pakistan Penal Code (Act XLV of 1860), mentioned in section 3 or any offence punishable under section 5 without an order of a Magistrate of the First Class or make an arrest therefore without a warrant : Provided that an officer of the special Police Establishment not below the rank of Inspector of Police who is specially authorised in this behalf by the Inspector‑General of that Establishment, or any other police officer so authorised by the Provincial Government, may, if he has reason to believe that on account of the delay involved in obtaining the order of a Magistrate of the First Class any valuable evidence relating to such offence is likely to be destroyed or concealed, investigate the offence without such order, but in every case where he makes such investigation, he shall, as soon as may be, send a report of the same to a Magistrate of the First Class together with the circumstances in which the investigation was made". According to well recognised principle of interpretation of statutes an effort should be made to read the two sections together so as to avoid a conflict. The correct position is that section 5‑A of the Prevention of Corruption Act relates only to investigation and it does not bear on the question of jurisdiction of or the power of a Special Judge to take cognizance. This section can not override or affect the jurisdiction of a Special Judge, which is governed by section 4 of the Criminal Law Amendment Act, 1948, nor the cognizance taken by him. Cognizance is an act entirely different from investigation and a defect in investigation cannot ordinarily attach itself to the validity of the cognizance, taken by him. Thus investigation' stand by itself, and all that the legislature intended i to do was to prescribe the rank of the police officer, who should investigate such cases, but it was never intended that the power of the Court to take cognizance or to assume jurisdiction should be affected or taken away, in case of a breach of section 5‑A Preven tion of Corruption Act. No such intention can be inferred from the statute and such an irregularity in investigation cannot be allowed to be urged as vitiating the trial. This does not mean that the police is absolved of the duty to follow the law and it is necessary in law that competent police officers should investigate such offences. However to the present case the question is a different one, namely, the effect of an irregular investigation by an incompetent police officer on the result of the trial. Hassanally Agha, C. J. and Vellani, J. and Constantine, J. have held that it is an illegality which vitiates a trial, but if I may say so with all respect this is trot so. It is 4 mere irregularity as held in the State v. Noor Alam and in H. A. Rishbud and another v. The State of Delhi and other cases cited above. If it is a mere irregularity it cannot invalidate the trial as the irregularity is cur able under section 537, Cr. P. C. The legislature has specifically provided section 537 of the Code of Criminal Procedure which cures such an irregularity. The irregularity in investigation is covered by the words "other proceedings before or during trial or in any enquiry or other proceedings under the Code in section 537, Cr. P. C. The legislature must be presumed to know the exist ence of this provision on the statute, and therefore it can be inferred that the legislature did not intend to affect the competency or jurisdiction of a Special Judge to try even on a report by an incompetent police officer.

32. Mr. Bakhtiar argues that by the introduction of the words "notwithstanding anything contained in the Criminal Procadure Code" the legislature intended to provide that cognizance could only be taken on a report based on an investiga tion by an competent police officer. The question has been considered in Keshav Mantra Shrivastava v. The State and in Crown v. Noor Alam. The latter holds that even if section 156 (2), Cr. P. C. could not be availed of a report by an incompetent police officer could still be treated as a complaint under section 190 (1) (b), Cr. P. C. by the Special Judge. I am in respectful agreement with the conclusions arrived at in Crown v. Noor Alam which has been followed by a Division Bench of the Dacca High Court in Abdul Noor Meah v. The State. The correct principle is that when a person accused of an offence is brought before a Court, the Court has to decide on the evidence before it whether an offence is made out against him or not and the question of irregularity in investigation of having been held by an incompetent officer is irrelevant to the question before the Court, except where it is shown that such irregularity has occasioned failure of justice. The power to take cognizance, the competency to try and the admis sibility of the evidence is not affected, and if the trial is valid and has been held in accordance with law, it can only be set aside on the ground that the irregularity has occasioned a mis‑carriage of justice. My conclusion, therefore, is that there is only an irregul arity in the investigation of this case, which was conducted by police officers not authorised by section 5‑A of the Prevention of Corruption Act, but neither the competency or jurisdiction of the Court nor the admissibility of the evidence before the Court is affected thereby. The irregularity is curable under section 537 of the Code of Criminal Procedure. It has not been shown that any failure of justice has been caused by the irregularity. I, therefore, hold that the trial held in this case is not illegal incompetent and that the conviction based thereon cannot be set aside on the ground that the investigation conducted from beginning to end was by incompetent police officers.

33. I now come to the merits of the case in order to deter mine whether the guilt of the appellants is established on the evidence. I shall take up the case of each of the appellants separately.

34. The prosecution has been able to establish the following circumstances against Walizar appellant (1) That the appellant received the 8 stolen insured covers (besides others), that the 8 missing insured letters (besides others) were brought by him before Masood Ali Khan P. W. 4 who counted all the insured letters and found them correct and then gave them to the appellant for tying in a bundle and he took them away for this purpose. All this is admitted by the appellant. The prosecution case is that when the appellant brought the insured letters tied in a bundle he had extracted the 8 insured covers. When he brought the tied bundle the insured letters were not checked or counted again by Masood Ali Khan and this is not unnatural or improb able for if he had counted them they would require retying. The insured covers brought back by the appellant admittedly were placed in the mail bag and sealed in the appellant's pre sence. The bag was put in another bag and sealed. The stolen issued covers could not thus have been removed by Masood Ali Khan P. W. (The appellant's case is that he had brought the entire insured covers, but this cannot be true as 8 of the insured covers were found missing when the seals of the bag were opened at the R. M. S.). It is proved on the evidence that he had the opportunity to remove the 8 insured covers when all the insured covers were given to him to tie in a bundle. (2) When the sealed mail bag sent by the Saddar Night Post Office was received in the R. M. S. van of the Khyber Mail at the Railway Station it was received by Altafur Rehman P. W. 5 in the presence of Liaquat Husain P. W.

6. The seals on the bag were intact. The seals were broken on the arrival of Nazir Hussain P. W. 8, Head Sorter. These three witnesses testify that the seals on the mail bag were intact and when the insured covers were brought out and checked with the lists accom panying the mail bag 8 of the insured covers were found miss ing. I am satisfied on their evidence that the insured covers were not stolen in the R. M. S. van. The evidence of these witnesses is entirely reliable. The mail bag was carried by Bashir Ahmad P. W. 3 from the Saddar Post Office to the R. M. S. van at the railway station. Since the mail bag was sealed by Masood Ali Khan in the presence of this appellant, which is admitted by him and the seals of which samples were sent by Masood Ali Khan to the R. M. S. van were found intact and the mail bag was untampered with it must be presumed that the removal of the 8 insured covers took place before the mail bag was sealed at the Saddar Post Office. This appellant gave a receipt Exh. 40 for having received all the insured covers. There can, therefore, be no doubt that he took them all for the purpose of tying. Then be brought them tied in a bundle which was not checked or counted again by Masood Ali Khan P. W. 4 and if that bundle was put in the mail bag and sealed in his presence there is no possibility for Masood Ali Khan to have extracted the 8 insured covers. The only person who could have removed the insured covers was the appellant. I am fully satisfied that Masood Ali Khan P. W. 4 has given true evidence and that the tied bundle was not checked again by Masood Ali Khan before putting it in the mail bag and sealing it. This is not unnatural because if he had started checking it the bundle would have become untied and would have had to be tied again. No doubt is cast on the integrity of Masood Ali Khan P. W.

4. The inference which emerges from these facts is strongly against this appellant and suggests that it was he who had removed the 8 insured covers. This is not how ever all. (3) When Nazir Hussain P. W. 8 discovered the loss he immediately informed the authorities and the Saddar Post Office by telephone and sent telegrams Exh.

13. When the theft of the insured covers was reported to Masood Ali Khan P. W. 4 he checked up the clerks on duty and found that the appellant was missing. Muhammad Umar Farooq P. W. 2 who was working as a clerk in the office at that time fully supports his statement. It is therefore proved beyond doubt that the appel lant absented himself from duty. He was the only clerk who was found absent from duty and the prosecution suggests that he had left duty in order to dispose of the insured covers and their contents. Muhammad Umar Farooq P. W. 2 besides states that the appellant that day had a towel with him. This was subsequently recovered from his house. The appellant could have removed the insured covers in that towel without attracting attention. There is, of course, no direct evidence that he removed the letters in that towel, but his absence from duty immediately after the despatch of the insured covers in the mail bag is another incriminating circumstance against the appellant. (4) Masood Ali Khan P. W. explains that the insured letters for Dacca are sent by airmail and they are designated Karachi Air No.

3. In his presence the police had searched the drawer of Walizar appellant during the night and had found two lists 5‑A and 5‑A/ 1 which were in the hand‑writing of Walizar. Muhammad Akbar P. W. 13 has also proved that they are in his hand. This appellant admits this fact. Muhammad Akbar P. W. 13 has deposed that the numbers of the missing insured letters were entered in this list by the accused, who had originally prepared the lists correctly. (The lists 5‑A and 5‑A/1 in the statement of Masood Ali Khan are the same as lists 5‑A/1 and 5‑A/2 in the statement of Muhammad Akbar P. W. 13). He has, as a conclusion, stated that .evidently the appellant had originally prepared these lists correctly for despatching the insured letters by air but had subsequently changed his mind, torn them from the book, kept them in his drawer and prepared fresh lists for despatching these articles by K‑1, that is to say, by rail. The inference is not quite cor rect. Of the two lists subsequently prepared, the appellant prepared list 3‑B and the list 3‑A was prepared by Muhammad Umar Farooq P. W.

2. It is stated by Muhammad Umar Farooq P. W. 2 that he prepared the list 3‑A, and list 3‑B only was written by the appellant, who admits it. The conclusion so drawn by Muhammad Akbar P. W. 13 that the appellant drew up both lists Exhs. 3‑A and 3‑B is not correct, nor is it correct that he drew up lists 5‑A and 5‑B correctly. The lists 5‑A and 5‑B were no doubt prepared by the appellant as is admitted by him, but these lists do not contain the numbers of the missing insured covers. They were not thus correctly pre pared. The appellant has explained that Masood Ali Khan told him that the lists were incorrectly prepared and consequently he had torn them. Masood Ali Khan also admits that he found the lists incorrect and asked the appellant to prepare other lists. The comparison of the numbers of the insured letters men tioned in 5‑A and 5‑B which are marked Karachi‑Air 3, that is for East Pakistan, do not contain the numbers of the 6 missing insured covers. It appears in fact that the appellant had purposely prepared these lists incorrectly, and had omitted the numbers of the 6 insured covers, which he intended to steal in order to cover up the theft of those insured covers. The mistake was however discovered by Masood Ali Khan who asked him to prepare other lists and it was upon this that he prepared the lists 37 and 38 correctly. In the list 3‑B prepared by him he mentioned the numbers 9198 and 920 (which should be 9207) of the insured covers meant to be sent by rail but these insured covers were not found in the mail bag. He also mentioned the numbers of 9188 and 9189 in this list which were for East Pakistan and should not have been mentioned in this list. I cannot believe that the lists 5‑A and 5‑A/1 were inadvertently prepared incorrectly. These seem to have been deliberately prepared omitting the numbers of the six missing insured covers in order to cover up his theft. List 3‑B is also incorrect as stated above. This is another damaging circumstance against the appellant. (5) The appellant led the police to his house and from a suit case of his relation Shahzad appellant a sum of Rs. 320 was recovered. This is deposed to by S. I. Abdul Haq and Muhammad Akbar P. W.

13. The recovery of Rs. 320 is proved beyond doubt. A towel was also taken into possession from that house. It is not however proved that the sum of Rs. 320 is part of the money removed from the insured covers. It is in evidence that another sum of Rs. 70 was separately recovered from his house. It is also not proved that that money was a part of the stolen property. On the 11th May, 1956, the appellant pointed out Shahzad appellant. There is nothing on the record to show that he was present at the house of the appellant when it was searched by the police on the night between 8th and 9th May, 1956. The learned counsel for the appellant argues that he must have been there and the police must have come to know him then. I cannot however hold that this is so. The pointing out o Shahzad appellant by Walizar appellant is admissible in evi dence. Walizar appellant led the police to Shermir P. W. at Diamond Soap Factory, Bunder Road, Karachi. The mashirnama is Exh. 22 and the witnesses are Muhammad Akbar (P. W. 13), Muhammad Ali (P. W. 10) and S.

1. Abdul Haq P. W.

17. Shermir P. W. 9 states that at 9 p.m. Shahzad appellant gave him Rs. 15,600 for safe deposit with him saying that he would take the amount back from him after Ramzan for buying a car. The amount was in hundred rupee and ten rupee notes. All the notes were new. He deposes that Shahzad was not doing any work in those days, and that he then gave the money to Muhammad Saleh P. W. to keep at his house. Shermir P. W. then led the police to the house of Muhammad Saleh Khan P. W. 11, who corroborates the statement of Shermir that the latter gave him the sum of Rs. 15,600 in currency notes, and he kept the amount with him and produced it when Shermir brought the police to him. Most of the money was in 100 rupee currency notes. The witnesses to the pointing out by Walizar of Shahzad appellant and by the latter of Shermir who pointed out Saleh Khan are the same i.e., Muhammad Ali P. W. 10 and Muhammad Akbar P. W.

13. Shahzad appel lant claims that the money was his and he kept it in deposit with Sher Mir P. W. and he had handed over Rs. 370 to the police, when they came to the house accompanied by Walizar. He has claimed the entire sum of Rs. 15,

920. He also admits that he showed the house of Sher Mir to the police who pointed out the house of Saleh Khan. In support of his claim Bostan Khan D. W. 3 was produced who deposes that he was asked by Shahzad about a month or so before the month of Ramzan in 1956 to search for a car, which he wanted to buy for a taxi. It is therefore suggested that Shahzad had got the amount of Rs. 15,600 a month before Ramzan, with which he wanted to buy a taxi. Shahzad however stated in his confession that Walizar gave him Rs. 15,920 at 7‑45 p.m. Shahzad himself has stated at the trial that he was unemployed and it is not shown that he is a man of means. No evidence has been led to show that he came by this large amount of money otherwise at about the time, when theft of Rs. 15,920 from the Saddar Post Office was committed. Out of the currency notes recovered, Rs. 10,000 in hundred rupee currency notes which were new and serial wise are proved from the statement of Ch. Phazal Samad P. W. 12 Currency Officer, State Bank of Pakistan, to have been issued on 30th April, 1956. The incident happened on the 8th of May, 1956. These notes could not have been in circulation and in the possession of Shabzad appellant a month before as suggested in defence. It is established on the evidence that at 7‑45 p.m. i.e. about the time of the theft Shahzad appellant was given Rs. 15,920 by Walizar, of which he (Shahzad) gave Rs. 15,600 to Sher Mir P. W. at 9 p.m. and had kept Rs. 320 in his suit case. This is the exact figure of the amount removed from the insured stolen property. Rs. 70 found besides in the house is evidently not connected with the theft. As against Walizar appellant, therefore, it is established that he gave Rs. 15,920 to Shahzad and pointed out Shahzad appellant, his relation who lived along with him and he was found to have passed on a large sum of Rs. 15,600 to Sher Mir immediately after the theft. It is not conclusively proved that all the recovered currency notes were contained in the stolen insured covers, but it is proved by the evidence of Sharifud din P. W. 7 and Exh. 9 that sixty hundred rupee currency notes (Rs. 6,000) produced by Saleh Muhammad were contained in two of the stolen covers sent by Muhammad Afzal on 8‑5‑1956. (6) Another circumstance established against this appellant is that he wrote out chits Exhs. 47 and

48. It is admitted by the appellant that he wrote these chits, but it is contended that these chits were written out under the pressure of the Sub Inspector. These chits have not been used in evidence against the appellant. A perusal of the contents of Exh. 47 shows that it could not have been written to the dictation of the police, for it mentions that he was beaten by the police continuously for four hours and then he was compelled to disclose that the amount was trust (Amanat). I am, therefore, satisfied that the chits were not written on the dictation of the police. These chits are in the nature of a communication by the accused to his father indicating his defence which is that the sum of Rs. 16,000 was given to him by Bawal Khan son of Ghulam Shah on 8‑5‑56 at 10 a.m., as an amount which Bawal Khan held on behalf of Mazhari Khan, and as Mazhari Khan had sent a message that the amount should be given to Walizar for purchasing a motor taxi, Bawal Khan had handed over the amount to him under the bridge of Golimar on 8‑5‑56 at 10 a.m., Rs. 300 being in ten rupee currency notes and the rest in hundred rupee notes and Walizar gave this amount to Shahzad at 2 p.m., so that he may hand over the amount to a trusted person for safe custody. The chit Exb. 47 recites that Bawal Khan should give a statement that the amount belong ing to Mazhari was lying with him (Bawal Khan) and he (Walizar) had handed over the amount to him at 10 a.m. on 8‑5‑56 under the Golimar Bridge for purchasing a taxi. It was added further that if the statement was given in that form there should be no worry, and he would be set at liberty, that he should keep up his courage because in fact there was no evidence against him. It was also requested that the letter should be shown to the advocate. These chits are not in the nature of a confession and are not therefore inadmissible in evidence against Walizar. These chits establish that Walizar gave a sum of Rs. 16,000 to Shahzad. This is the inference which could be drawn from the pointing out also. It is there fore established that Walizar passed on this large sum of about Rs. 16,000 to Shahzad appellant on the day of occurrence. Walizar could not have come by this large amount in an honest manner. It is not claimed that the money belonged to him nor is it shown that he came by it in an honest manner. Shahzad has said in his confession that Walizar had told him that a friend of his had given the amount to him to keep as he wanted to buy a car. That friend has not been produced or even named. The circumstances pointed out above leave no room for doubt that the appellant committed the theft of the sum of Rs. 15,920 by removing 8 insured covers which con tained this amount. Even apart from these chits Exhs.47 and 48, the circumstances established against Walizar appellant leave no room for doubt that he committed the theft of the 8 insured covers. I have stated already that it does not appear that the chits were written on the dictation of the police or under their threats, but it has been urged on behalf of this appel lant that these chits should be excluded as it is established that he was beaten by the police and S. I. Abdul Haq and Additional S.

1. Altafali Khan were punished for it. Mr. Syed Muhammad, S. P. D. W. 1 has deposed that these two. officers were departmentally punished, and it appears to be true that Walizar was beaten by the police, but that does not prove that the chits were obtained by beating. The evidence is that Walizar asked 2;akir Raza P. W. 16 to be supplied with paper. The paper was sup plied to him on the 17th May, 1957, and the chits Exhs. 47 and 48 were given to S.

1. Abdul Haq on the 18th May. The S. P. went for a round of the police Station at 9 p.m. on 17th when it was reported to him that he had been beaten by the police. Since the chit Ex. 47 mentioned that the appellant had been beaten by the police, the police could not have had it written. The chits were in my view written on his own and the police may not even have produced them in evidence but for the fact that the beating given to Walizar happened to be reported by him to the S. P. and came to his knowledge, and it. became unnecessary to withhold the chits because of the damaging accusation contained in one of them.

35. On the prosecution evidence the guilt of Walizar appel lant is proved beyond doubt. The circumstances established on the record are incompatible with his innocence. The mere fact that he was beaten by the police during custody does not affect his guilt which is established on the record. I, therefore, uphold the conviction of the appellant under section 5 (2) of the Prevention of Corruption Act, 1947. It is not argued that this offence is not made out against him if the facts alleged against him are established on the record. In the circumstances of this case, the sentence of 2 years R. 1. and a fine of Rs. 5,000 (in default 15 months further R. I.) is not excessive.

36. In the case of Shahzad appellant, the prosecution has succeeded in proving that soon after the theft i.e., at about 7‑45 p.m. Walizar gave him Rs. 15,

920. This is proved by his con fession Exh.

67. He passed on a sum of Rs. 15,600 as is admitted by this appellant to Sher Mir P. W. at 9 p.m. This is also proved by Sher Mir P. W. who passed on the amount to Saleh Muhammad P. W. The balance of Rs. 320 was found in the suit case of Shahzad. A theft of Rs. 15,920 is proved to have been committed by Walizar appellant and he passed on the entire amount to Shahzad Appellant. The question which requires decision is whether Shahzad knew or had reason to believe that it was stolen property. He received the amount and was in possession of it so soon after the theft that a presumption under section 114 (illustration (a)), Evidence Act can be drawn against him. He is related to Walizar and lived with him. He must have, known that the money was stolen property because Walizar, a mere clerk could not have acquired such a large amount by honest means. Shahzad, therefore, received this amount knowing that it was stolen property. It appears that he passed on this amount to Sher Mir at 9 p.m. in order to cover the theft by Walizar. This is also an indication of his guilty knowledge.

37. He claims at the trial that the amount belongs to him. This claim is contrary to his confession Exh.

67. This confession is proved to be voluntary. The defence that he came into posses sion of the amount a month before and wanted to buy a car with it is not true. The recovered amount was in hundred rupee notes. The dates of issue of the currency notes are proved by Phazal Samad P. W.

12. Out of the recovered currency notes, Rs. 10,000 were issued on 30th April, 1956, and these notes could not have been possessed by him earlier. Neither Sher Mir nor Saleh Muhammad P. W. changed the currency notes which were passed on by Shahzad to Sher Mir. It is not proved conclusively that all the notes recovered are the very same which were contained in the stolen insured covers, but sixty hundred rupee currency notes (i.e., Rs. 6,000) are proved from the statement of Sharifuddin P. W. 7 and Exh. 9 to have been stolen from the two insured covers sent by Afzal Muhammad on 8‑5‑

56. It is not shown .that he came into possession of this amount through a source other than Walizar. There is no evidence that he could have earned or owned this large amount on his own. It is signifi cant that it is admitted in his confession that he received the exact amount, which was stolen from the insured covers. The inference is irresistible that the currency notes are the same as were stolen by Walizar and were passed on to Shahzad, who knew that the money was stolen and he made haste to pass the amount on to Sher Mir P. W. immediately after i.e. at about 9 P.M.

38. In his confession Exh. 67 he has stated that Walizar gave him Rs. 15,920 saying that it was given to him to keep by a friend, who wanted to buy a car. That friend has not been produced. That position has not been taken at the trial. This statement was evidently thought of as a good defence, and it also was taken as defence by Walizar in Exhs. 47 and 48, but was apparently abandoned at the trial as too incriminating for Walizar. It has not been urged before me as a circumstance tending to show his lack of dishonest knowledge in receiving the amount. The very receipt of the amount is now denied. This part of the confession does not appear to be true and I do not believe that Walizar is conveyed this information to Shahzad. The amount must have been given to him to deposit elsewhere so that it is not traced to Walizar even in case of search. He must have known that Walizar had stolen this amount and had not received it from a friend or in an honest manner. He could not have believed that he, a mere clerk, would be entrusted by anyone with such a large sum instead of putting it in a bank. Shahzad at the trial claims the entire amount as his own. I am not inclined to accept his statement in the confession that Walizar gave it to him to keep saying that a friend who wanted to buy a car had given it to him for safe custody.

39. The prosecution has in my view succeeded in showing that Shahzad knew that the amount was stolen money and he received it knowingly. A case under section 411, P. P. C., is thus made out against him. He has been sentenced to one year's R. I. and a fine of Rs. 1,000 under section 411, P. P. C. (and in default of payment of fine to six months' further R. I. This sentence is not excessive in the circumstances of the case.

40. In the result I maintain the conviction and sentence imposed upon the appellants and dismiss their appeal. A. H. Appeal dismissed.