P L D 1960 (W (PLP)

4. In appeal, Mr. Bashir Ahmad, the learned counsel appearing for the appellant, has frankly conceded that he cannot seriously contest the conviction of the appellant under section 379 of the Pakistan Penal Code as the offence stands fully established on the record through the evidence of witnesses who are disinterested, and against whose veracity nothing has been brought out in cross‑examination or otherwise. The learned counsel also does not contest the fact that the appellant is a previous convict and he does not wish to rely on the evidence of defence witnesses who have made vague statements that the appellant was at large in Karachi at a time when he should have been in the prison on account of the one or the other of the alleged previous con victions. But two points are seriously agitated: (a) that the previous conviction or convictions have not been legally proved according to the provisions of section 511 of the Criminal Procedure Code and (b) that while framing the charge under section, 75, P. P. C., the learned trial Magistrate only mentioned one conviction relating to the year 1955, but while awarding the sentence of six years' rigorous imprisonment the learned Magistrate has been influenced by the fact that the appellant had eleven previous convictions.

5. In the present case, the previous convictions of the appellant are sought to be proved by the prosecution through the evidence of Muhammad Haider Siddiqui (P. W. 7), who is an official of the Finger Print Bureau, and produced finger‑print slip Exh. P. W. 7‑A indicating eleven previous convictions against the appellant. He also proved that the finger‑prints of the appellant taken by him in the presence of the Magistrate were identical with the finger‑prints contained in the previous con viction slip. The learned counsel for the appellant contends that the evidence of the Finger Print Expert and the document Exh. P. W. 7‑A produced by him do not satisfy the require ments of section 511 of the Criminal Procedure Code, in two respects; Firstly, that such a conviction slip does not find any mention in the section and, secondly, there is no evidence to connect the identity of the present appellant with the person who was previously convicted. In order to reinforce his arguments, the learned counsel has referred me to several authorities which may be briefly noticed.

6. In Dava Ram v. Emperor (A I R 1929 Lah. 763), it was laid down that the Court should prove the previous conviction when it is relied upon for the purpose of applying section 75 by one of the modes laid down in section 511, Criminal Procedure Code, and the Court should not be statisfied with the admission of the accused. Again, in Emperor v. Dalip Singh (A I R 1944 Lah. 25), a Full Bench obser ved that if the accused does not admit his previous convictions, then the Court has to take evidence according to law, i.e., under section 511 of the Code of Criminal Procedure as to the previous convictions and then come to a separate finding upon them. Similarly, in Mula v. The State (A I R 1950 Ajmer 43), it was observed, "where an accused denies all the alleged previous convictions, the prosecution is bound to prove the previous convictions as provided by law i.e., as laid down by section

511. Mere evidence of identity of the accused with some other person previously tried is not enough. Nor is a document filed by the prosecution mentioning certain previous convictions of certain person, sufficient for proving alleged previous convictions."

7. From these authorities, the learned counsel wants me to infer that a previous conviction can only be proved in accordance with the two modes of proof prescribed in section 511 of the Code of Criminal Procedure, namely, (a) by an extract certified under the hand of the officer having the custody of the records of the Court in which such conviction or acquittal was had, to be a copy of the sentence or order; or, (b) in case of a conviction, either by a certificate signed by the officer‑in charge of the jail in wbic6h the punishment or any part thereof was inflicted, or by production of the warrant of commitment under which the punishment was suffered. This, however, does not appear to me to be the correct interpretation of either these authorities or of section 511 itself. All that these authorities purport to lay down is that the previous conviction should be proved in accordance with section 511 of the Criminal Procedure Code, and the section itself prescribes the two modes just mentioned, in addition to any other mode provided by any law for the time being in force. It is thus clear that section 511 does not intend or purport to restrict the modes of proof in respect of a previous conviction to the two modes mentioned in clauses (a) and (b) of the section, but also permits any other mode provided by any law for the time being to force. The same view was expressed in Emperor v. Sahdeo (5 Cr. L J 220), and Pokar Chuharmal v. Emperor (A I R 1941 Sind 173). I consider, therefore, that the mere fact that the record slip Exh. P. W. 7‑A is not one of the documents mentioned in clauses (a) and (b) of section 511, Criminal Procedure Code, does not of itself render it inadmissible as proof of the previous convictions.

8. The question, however, is whether it is a mode provided by any law for the time being in force, and therefore permitted to be invoked by section 511 of the Code of Criminal Procedure. The answer, in my view, is in the affirmative, as it is a document prepared in accordance with the provisions of sections 3 and 4 of the Identification of Prisoners Act (No. XXXIII) of 1920. These two sections may be reproduced for facility of reference :‑ "

3. Every person who has been‑ (a) convicted of any offence punishable with rigorous imprisonment for a term of one year or upwards, or of any offence which would render him liable to enhanced punishment on a subsequent conviction, or (b) ordered to give security for his good behaviour under section 118 of the Code of Criminal Procedure, 1898, shall, if so required allow his measurements and photograph to be taken by a police officer in the prescribed manner." "

4. A person who has been arrested in connection with an offence punishable with rigorous imprisonment for a term of one year or upwards shall, if so required by a police officer, allow his measurements to be taken in the prescribed manner."

9. The rules contained in the Police Finger‑Print Bureau Manual, which is described as a supplement to the Punjab Police Rules, clearly prescribe the manner of preparation of these search slips under the Identification of Prisoners Act of 1920. Rules, 22, 23 and 24 contain instructions to the police officers for proving previous convictions during criminal trial. Rule 25 of the Manual gives the categories of persons in whose cases finger‑print slips shall be prepared for permanent record, and the authority for this rule is partly derived from the Identific ation of Prisoners Act, 1920, and partly from the Criminal Tribes Act, 1924, although we are not concerned id the present case with this latter Act. It is therefore, clear that the finger‑print slip Exh. P. W. 7‑A produced at the trial by the Finger Print Expert has been prepared in accordant with the statutory provisions of sections 3 and 4 of the Identification of Prisoners Act, 1920, as amplified by instructions contained in the Police Finger‑Print Bureau Manual. On one side of this slip is a record of the previous convictions, while on the other side are the finger‑prints of the convict. This finger‑print slip must, therefore, be regarded as a mode of proof provided by "any A law for the time being in force" and accordingly permissible in evidence under section 511 of the Criminal Procedure Code for proving a previous conviction.

10. The final question is whether, even if the finger‑print slip he held to be an admissible piece of evidence, it has succeeded in proving the previous, conviction conclusively by connecting the identity of the present appellant with the person who was convicted previously. This requirement is specifically laid down in the concluding part of section 511 of the Criminal Procedure Code which is to the effect that in addition to the modes of proof regarding the previous conviction, there must be produced evidence as to the identity of the accused person with the person so convicted or acquitted. This requirement has repeatedly been emphasised in several authorities which were cited at the Bar. Mention may particularly be made of Ram Das Singh v. Emperor (A I R 1917 C 211), Emperor v. Sahdeo and Pokar Chuharmal v. Emperor.

11. I have already observed that the finger‑print slip Exh. P. W. 7‑A is a document prepared in pursuance of a statutory duty cast upon the police officers under the Identification of Prisoners Act of 1920. It is clear, therefore, that it must be treated as a public document embodying an act of the executive within the meaning of section 74 of the Evidence Act. It has been produced in Court by the Finger‑Print Expert Muhammad Haider Ali Siddiqui, (P. W. 7) for proper custody. It contains a certificate, signed by a police officer, under the finger‑prints to the effect that. "The prints above were taken before me and that they are the prints of the convict named on the reverse." The convict named on the reverse is Muhammad Ashraf alias Ashraf Ali alias Sathi alias Ashraf alias Intezar and his father's name is described as Abdul Aziz alias Rafiq alias Ahmad. The further particulars given are that the convict is Virk by caste and belongs to Jammu State in Kashmir, and then it is also mentioned that he was residing in the jurisdiction of Hira Mandi Police Station in Lahore. In the face of the existence of this certificate on this public document no doubt is left that the finger‑prints are of the person who was convicted on the occasions described on the reverse of this slip. The finger‑print slip, therefore, establishes the identity of the person who was convicted on the previous occasions.

12. The next question then is whether this previously convicted person is the same who was the accused person to the present trial. This accused person, namely, the appellant before me, is named Muhammad Ashraf alias Achha, son of Abdul Aziz, and his caste is shown as Virk, although he is described as a resident of Gali Hisam‑ud‑Din, Sialkot. The name, the parentage and the caste are the same as of the previously convicted person. Besides, the finger‑prints of the appellant were taken during the trial and are exhibited as P. W. 7‑B. They were compared with the finger‑prints on the previous conviction slip at Exh. P. W. 7‑A, and the evidence of the Finger Print Expert shows that the finger‑prints of the appellant were identical with those of the previous convict as contained in Exh. P. W. 7‑A. 1n other words, the appellant Muhammad Ashraf and the previous convict Muhammad Ashraf were one and the same person. This being so, the identity of the present accused with the previous convict is satisfactorily established and there is no room for doubt in this behalf.

13. My conclusions with regard to the proof of the previous convictions in this case may, therefore, be summed up as follows. Section 511 of the Code of Criminal Procedure does not limit the modes of proving a previous conviction to the two modes mentioned in clauses (a) and (6) of the section, but permits the use of any other mode provided by any law for the time being in force. It, however, prescribes an essential requirement to the effect that in addition to proving the previous conviction, evidence must be led to establish the identity of the accused person B with the person previously convicted. A finger‑print slip con taining a record of convictions and the finger‑prints of the convict is a public document prepared in pursuance of a statutory duty cast upon the police officers under the Identification of Prisoners Act, 1920, and the rules contained in the Police Finger‑Print Bureau Manual, and is, therefore, admissible in evidence under section 74 of the Evidence Act. The certificate appear ing at the bottom of the finger‑prints is sufficient to prove that the finger‑prints are of the person who suffered the previous convictions recorded in that finger‑print slip. The identity of that previously convicted person with that of the accused under trial is satisfactorily proved by the evidence of the Finger Print Expert who compared the finger‑prints of the accused person taken in Court with those contained in the finger‑print slip bearing the previous convictions. Thus all the essential require ments for proving a previous conviction, as laid down in section 511 of the Code of Criminal Procedure, are fully satisfied and it must, therefore, be held that the previous con victions alleged against the present appellant are established on the record.

14. I find, however, that there is force in the argument put forward by the learned counsel that the learned trial Magistrate has erred in allowing himself to be influenced, in assessing the, quantum of sentence, by eleven previous convictions of the, appellant, whereas in the charge framed by him under section 75 of the Pakistan Penal Code only one previous conviction of the 14th March 1955 was mentioned and explained to the appellant. For that reason it seems to me that there is justification for a reduction in sentence. Accordingly I would reduce the sentence to four years' rigorous imprisonment. The appeal is accepted to this extent only. K. B. A. Appeal partly accepted.