P L D 1960 (W (PLP)

3. At the trial, seven witnesses were examined in support of the prosecution case. The accused denied the commission of the offence and pleaded that he had been arrested from his camp within the territory of Pakistan at a distance of 50 or 60 karams from the border. He alleged that some months before this occurrence the Border Police had an altercation with the petitioner and others, and as an announcement had been made that he and others would march into India on the 21st of October 1957, so they were arrested. He offered to produce defence, but before he could do so, he was arrested in connection with the murder of Dr. Khan Saheb. Later he turned an approver in that case. After the conclusion of that case, his trial proceeded in the present case. He did not call any witness in his defence, but requested that the copy of the judgment passed by the Sessions Judge, Sialkot, on the 17th of December 1958 and filed in another case be perused. The learned Magistrate after carefully reviewing the evidence, accepted the prosecution case as true and convicted the accused under section 19 (f ) of the Arms Act and sentenced him to undergo rigorous imprisonment for two years. On appeal, the learned Sessions Judge upheld his conviction but reduced the sentence to one year's rigorous imprisonment.

4. Mr. Ijaz Husain Batalvi, learned counsel for the peti tioner, has strenuously urged that the prosecution evidence regarding the recovery of the rifle and other ammunition from the possession of the petitioner is unreliable and hence the petitioner is entitled to an acquittal. In support of his contention he has relied on a copy of the judgment of the learned Sessions Judge dated the 25th of July 1959, whereby he disbelieved the entire evidence against the petitioner in respect of the charge under section 4 of the Pakistan Control of Entry Act of 1952 and acquitted him. To the same effect is the copy of the judgment in the case of War Haider, his companion. Both these copies have been filed in this Court.

5. The question is whether these judgments can be taken into consideration while ascertaining the facts in the present case. A judicial officer has a legal duty to apply to the best of his ability, the rules of evidence as are provided for in the Evidence Act. And his plain judicial duty is to exclude irrelevant evidence. The only sections of the Evidence Act, under which a judgment can be held relevant are sections 40 to

43. Unless the decision is of the kind mentioned in these sections, it is irrelevant. Learned counsel for the petitioner has very frankly conceded that the case is not covered by sections 40 to

42. He has however, maintained that the judgments being relevant under section 11 of the Evidence Act, they fall within the purview of the latter part of section

43. These sections read as follows: Section 43 : "Judgments, orders or decrees, other than those mentioned in sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act." Section 11 : "Facts not otherwise relevant are relevant :‑

(1) If they are inconsistent with any fact in issue or relevant fact ; (2) If by themselves or in connection with other facts they make the existence or non‑existence of any fact in issue or relevant fact highly probable or improbable." It will be seen that according to section 43 a judgment which is not relevant under sections 40 to 42 may become relevant under some other section of the Act. Under section 11, collateral facts under the given conditions, are made relevant.

6. The fact in issue in the present case is whether the rifle and other ammunitions had been recovered from the possession of the petitioner. In terms of section 11, all facts which are Inconsistent with this fact or make the existence or non‑existence of this fact highly probable or improbable are relevant. The judgments on which reliance is being placed by the learned counsel for the petitioner do not deal with this fact at all. It is true that the same set of witnesses has been disbelieved by the learned Sessions Judge in both the judgments. In fact he has disbelieved the story that the petitioner and his companions had crossed the border from the Indian side. These judgments are nothing but opinions as to the credibility of the witnesses in respect of that matter. I am clearly of the view, that these opinions cannot bet regarded to be such facts as would fall within the ambit of section

11. Consequently these judgments cannot be used to prove the conclusions arrived at by the learned Sessions Judge on the particular evidence before him in those cases.

7. I have also considered the question whether these judgments could be used for impeaching the credit of the witnesses under clause (a) of section 155 of the Evidence Act, but after a careful consideration, I am of the opinion that such a course is not permissible. This clause provides for calling witnesses to prove that the witness to their knowledge is not worthy of credit, or in other words has a reputation for falsehood. The learned Sessions Judge had no personal knowledge of the witnesses, and as such his opinion is not covered by this clause. Therefore, the judgments in the cases in which the witnesses were not believed cannot be given in evidence to impeach the veracity of the witnesses. I am fortified in this view by the decision in Mir Jawali v. Emperor (A I R 1936 Pesh. 106). Under the circumstances, these judgments shall have to be excluded altogether from consideration.

8. Turning now to the merits of the case, I find that the prosecution story is supported by the evidence of as many as five witnesses. They are Muhammad Khan, Sub‑Inspector, Head Constable Aman Ali and Foot Constables Muhammad Afzal, Khial Gul and Hashim Gul P. Ws. There are no discrepancies in their statements, and there is nothing in their cross‑examination to shake their credit. They are of course police witnesses, but I am at a loss to understand why a policeman's testimony should be taken for granted as suspect and tainted. We can at least accord to them as much credence as we give to ordinary witnesses. Their evidence is straightforward and convincing and stands unrebutted. And it has been believed by both the Courts below.

9. It is only rarely that this Court while exercising its revisional jurisdiction, travels beyond the region of law of procedure, to correct errors in decision on facts, and when an occasion arises for going into the facts of the case, this Court does not interfere as readily as it would if it were a matter off appeal, the distinction being that in dealing with a criminal appeal, the Court interferes unless it is satisfied as to the guilt of the accused, while in revision, the Court does not interfere, unless the Court is satisfied that no judicial Court could have convicted the accused on the evidence on the record.

10. Learned counsel for the petitioner has drawn my attention to the fact that in the report Exh. P. A., it is not specifically mentioned that the rifle and the ammunition had been recovered from the possession of the petitioner, and that there was considerable delay in the registration of the case at the police station. On both these matters, not a single question was put to the Sub‑Inspector or to any other witness. In the memo Exh. P. B., it is specifically mentioned that these articles had been recovered from the petitioner. I see no reason to doubt the genuineness of this document. The petitioner had been arrested at the border, and it is difficult to guess at this long interval, as to what were the reasons for the delay in sending the report to the Police Station. The Sub‑Inspector was the only person who could have explained the delay, but he was not asked any question about it. I am, therefore, not prepared to attach any importance to it.

11. On a careful consideration of the evidence on the record I am satisfied that there is no ground for interfering with the conviction of the petitioner, under section 19 (f) of the Arms Act.

12. As regards the sentence, it appears that the petitioner is a man of criminal tendencies, and as such does not deserve any leniency. I accordingly dismiss this revision petition. The petitioner who is on bail should be re‑arrested and required to serve out the un-expired portion of his sentence. A. H. Petition dismissed.