P L D 1959 (W (PLP)

MUHAMMAD SHAFI, J.‑Khairullah, aged about 35 years, son of Nasrullah, resident of Nisatta, has been convicted under section 379 read with section 75, P. P. C., and sentenced to seven years' rigorous imprisonment, for having stolen a he buffalo belonging to Muhammad Iqbal (P. W. 4), from a cattle- fair, on the 29th of April, 1957. His co‑accused, Abdul Hanan, aged about 30 years, son of Nasrullah, was acquitted. Khairullah appeals against his conviction and sentence. So far as the theft of the he‑buffalo by the appellant is concerned, there cannot be any manner of doubt. Muhammad Iqbal (P. W. 4), who has no enmity with the accused‑appellant, stated in Court that he and his father, Mohib Gul, had brought he‑buffalo to the cattle‑fair at Charsadda for sale. Till noon time, however, they did not succeed in selling it, and so Mohib Gul went back, instructing his son to bring the he buffalo on his return home. Muhammad Iqbal tied the he buffalo in the mandi and himself went to the bazar in order to purchase a cap. On his return, he found the buffalo missing. He made a search for it in Charsadda, and was informed that the buffalo had been taken to Nisatta. He went to that village and made the necessary inquiries. He was informed that the he‑buffalo was tied in the house of the accused‑appellant, and therefore, he went there and found it in fact standing. He asked the accused‑appellant to return the buffalo to him, but he refused to do so, and therefore, Muhammad Iqbal went to Nisatta Police Post and lodged a report there on the 30th of September, 1957, at 9 a.m. In the meantime, Said Rauf Foot Constable (P. W. 7), who was on patrol duty, received an information that a man from Charsadda had brought a he‑buffalo to the village which was suspected to be stolen property This foot constable then went to the house of the accused‑appellant and took into his possession the he‑buffalo whom he brought along with the Accused‑appellant to Thana Hoti and lodged a report there on the 2nd of May, 1957, at 12‑2o p.m. The accused cLalmed the buffalo to be his own, having purchased the same in the cattle‑fair. The he‑buffalo was mixed up with four other he‑buffaloes and was correctly identified by Muhammad Iqbal as belonging to his father. Rahmanuddin Court‑witness also stated on solemn‑affirmation that the he‑buffalo had been sold by him to Muhammad Iqbal for Rs.

200. This transaction, had taken place in the presence of Shamsher (P. W. 5). Both Shamsher and Rahmanuddin are disinterested persons and there is no reason whatsoever to doubt their testimony. The buffalo was found in the possession of the accused‑appellant, which fact is not even denied by him. He would, therefore be presumed to be either a thief or a receiver of stolen property. The onus lay very heavily upon him to show that he had acquired the he‑buffalo honestly and with consideration and had not stolen it. He did not produce the person from whom he had alleged to have purchased the he‑buffalo, but only examined one Amir Khan who said that this buffalo was purchased in his presence. It is a matter of common knowledge that when a person purchases a buffalo in a cattle‑fair he is always given a receipt for the amount paid therefore. No such receipt has been produced by the appellant. The conviction of the accused, therefore, under section 379, P. P. C. is well‑founded and must be upheld. The case was, however, referred to the Division Bench with regard to the enhanced punishment which has been awarded to the appellant under section 75 of the Pakistan Penal Code. The prosecution did not examine any evidence with regard to his previous conviction, but he himself admitted in his statement that he was sentenced by the E. A. C. Charsadda to two years' rigorous imprisonment under section 393, P. P. C. on the 10th of December, 1945. Sh. Abdul Hamid, J. in Alif Din v. Pakistan State (P L D 1958 Pesh, 6) held in similar circumstances that where the provisions of section 511, Criminal Procedure Code; had not been complied with and there was not a word in the prosecution evidence about the previous conviction of the accused, who had been only put a question regarding his previous conviction in the course of his examination under section 342, Criminal Procedure Code, which question he had answered in the affir mative, the enhanced sentence in terms of section 75, P. P. C. was not in accordance with law. Discussing the question, the learned Judge made the following observations :‑ " Section 511 of the Code of Criminal Procedure requires that evidence of previous conviction should be adduced by the production of one of the certificates or documents mentioned in clauses (a) and (b) of that section, through the hands of a witness. This procedure was not observed in ;his case. Unless some evidence is tendered by the prosecution to indicate that the accused has a previous conviction against him which renders him liable to enhanced punishment no occasion in law can arise to put a question in respect of it to the accused. It is only the appearance of something in the prosecution evidence which can give an occasion to the Court to put questions to the accused at the time of his examination under section 342, Criminal Procedure Code. It is not correct to invoke the aid of section 75, Pakistan Penal Code, for imposing enhanced punishment if that section is added to the charge without compliance with the require ments of section 511, Criminal Procedure Code. 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 Procedure Code, has not been produced. It has been held in Daya Ram v. Emperor (A I R 1929 Lah. 768), that a mere admission of the accused in respect of his previous con viction is not enough if previous conviction has not been proved in accordance with the provisions of section 511, Criminal Procedure Code. Without the existence of any reference to previous conviction in the prosecution evidence no occasion arises for putting a question to the accused in respect of it. When the accused is put on examination under section 342, Criminal Procedure Code, he can be asked to expLaln any of those matters which appear in evidence against him. If no evidence is brought on the record with regard to his previous conviction in accordance with the provisions of section 511, Criminal Procedure Code, there is in the eye of law nothing for the accused to expLaln or admit. As there was no compliance with the provisions of sec tion 511, Criminal Procedure Code, in this case the addition of section 75, Pakistan Penal Code was not in accordance with law and the provisions of that section cannot be utilised for imposing enhanced punishment. The accused should be treated to have committed an offence under section 380, P. P. C. only, and in that case, I think a sentence of three years' rigorous imprisonment would be appropriate ". The provision of section 255‑A, Criminal Procedure Code which was inserted by section 71 of the Criminal Procedure Code (Amendment Act' XVIII of 1923) does not seem to have been brought to the notice of the learned Judge. This section lays down that 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 con victed 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. At the time when section 255‑A was inserted, section 511 already existed in the Criminal Procedure Code. Section 255‑A, therefore, shall have precedence over section 511, which only gives the mode of proof of the previous convictions. It will only come into play if the accused does not admit the previous conviction, but where he does so, there is no occasion for the Court to exercise the discretionary power vested in it under section 511, Criminal Procedure Code, and require the previous conviction to be proved in accordance with the provisions of this section. This is what was held by a Full Bench of the Lahore High Court in Emperor v. Dalip Singh (A I R 1944 Lah. 25) which also does not seem to have been brought to the notice of the learned Judge. In this case, a Full Bench of three Judges examined A I R 1929 Lah. 768 and found that it could not be considered as laying down the proposition, that an admission of a conviction by the accused was not, sufficient proof of that conviction. Their Lordships held, in, this case that the learned Magistrate was wrong in questioning the accused about his previous conviction on which there was no evidence produced, but at the same time there still remained section 255‑A of the Criminal Procedure Code, which dispenses with the proof of the previous conviction if it is admitted by the accused person. In the opinion of their Lordships, the combined effect of sections 221 (7) and 255‑A was that the accused was to be charged with this substantive offence and at the same time in anticipation, with the previous conviction, the form of the charge being that given in Form No. 28, Schedule 5 of the Criminal Procedure Code. If on that charge being put to him, the accused admits the convictions by pleading guilty to the whole charge, there is no necessity for the prosecution to prove those convictions under section 511, Criminal Procedure Code. In this opinion of the learned Judges we respectfully concur. The view enunciated above has also been upheld by Rafiq, J. in Qaim Din and Umardin v. The State (P L D 1958 Lah. 421). In our view, therefore, the strict proof of the previous convictions in the face of the accused's admission of them as envisaged in section 511, Criminal Procedure Code, was not called for. The Mew taken by Sh. Abdul Hamid, J. therefore, does not appear to be sound. The conviction and sentence of the appellant are, therefore, upheld and his appeal dismissed. A. H. Appeal dismissed.