P L D 1965 (W (PLP)

MUHAMMAD AFZAL CHEEMA, J.‑This appeal has been filed by the Provincial Government under section 417, Criminal Procedure Code, through the Additional Advocate General, Karachi, in his capacity as Public Prosecutor, against the acquittal of Abdul Majid respondent. The respondent was charged under section 380, P. P. C., while Safdar Rehman, another co‑accused, was charged under section 411, P. P. C. and both were acquitted by a Magistrate 1st Class, Quetta, vide his order, dated the 20th of November 1963. The appeal was preferred against the acquittal of Abdul Majid respondent alone.

2. The background of the case is that on the 7th of February 1960, Muhammad Shafi complainant in this case, proprietor of Jhelum Jewellers, Liaqat Road, Quetta brought according to the prosecution, 80 tolas of purified gold in the form of four bars and two nuggets from his house to his shop to be handed over to the goldsmith working at his shop for the preparation of ornaments of different customers who had placed orders. When he reached the shop he received some visitors and while attending to them forgot all about the gold and then suddenly left in a tonga for the railway station en route to Jacobabad from where he returned on the 10th of February 1960. He made inquiries from his brother Muhammad Inayat P. W. 4 and brother‑in‑law Bahadur Khan P. W. 5 who both worked at his shop, but they expressed their complete ignorance. On further inquiries from various local jewellers it was revealed to him that the respondent and Sarwar had sold his gold to various jewellers in the town. The respondent had been working with him since three or four years prior to the occurrence as his artificer and Sarwar, an original resident of Sialkot, had been got employed by Muhammad Shafi as a goldsmith at the shop of Dur Muhammad Jeweler. Both Abdul Maid respondent and Sarwar used to live together. The report (Exh. P/A) was lodged in this regard at City Police Station, Quetta, on the 26th of February 1960 by Muhammad Shafi. The case was investigated by Sultan Shah Sub‑Inspector (P. W. 13). 31 tolas and 4 mashas ( an anna denotes a measure of gold, used in this part of the country, instead of masha, though not exactly equivalent to it) of gold were recovered from Fazal‑ur‑Rehman Jeweller allegedly sold to him by the respondent. 28 tolas and 6 annas of gold were produced by Muhammad Nawaz goldsmith working at the shop of Habib‑ur‑Rehman Jeweller and finally five persons, namely, Abdul Majid respondent, Safdar Rehman, his father Fazal‑ur -Rehman, Muhammad Nawaz and Muhammad Sarwar, were challaned under sections 380/411/414, P. P. C. It may be mentioned in this context that a confessional statement (Exh. P/M) of the respondent was recorded on the 22nd of April 1960 by the Additional Magistrate 1st Class, Quetta, which is reproduced :‑ "Sarwar, son of Gulab Din, was putting up with Shafi goldsmith with whom I have been serving for last three years. The said Sarwar gave me. about 20 tolas of gold in Shafi's shop on 8th February, which I handed over to M. Safdar Prop. of Modern Ornaments on Shar‑e‑Liaqat who charged it at Rs. 128 per tola and paid Rs. 2,560 in cash to me. I gave this amount of Rs. 2,560 to Sarwar, son of Gulab Din, outside Shafi's shop immediately on my return. On next day Sarwar again gave me inside Shafi's shop 28 tolas 4 mashas which I sold to Siddiq and Nawaz goldsmiths on Habib‑ur‑Rehman lane who charged it at the rate of Rs. 128 per tola and paid me Rs. 3,638 or Rs. 3,640. 1 do not remember exactly which I paid back to Sarwar son of Gulab Din, promptly. Shafi goldsmith had gone to Jacobabad since 7th February 1960 and returned to Quetta on the morning of 11th February 1960 and interrogated me in the afternoon whether . I had sold gold to any one. I affirmed that I had sold gold 28 tolas to Siddiq and about 20 tolas to. M. Safdar of Modern Ornaments which was given to me by Sarwar son of Gulab Din to whom I duly made over amounts received by me on these accounts. Shafi told me that this gold belonged to him and I told him I was in his employment for a long time but did not know whether it actually belonged to him. He coerced me to produce Sarwar who had absconded from Quetta. My relative Rehmat Ali son of Rahim Bakhsh stood surety orally for me that in case I fail to produce Sarwar before Shafi by 26th February 1960 he would make good his .loss of gold to him. I returned to Quetta on 25th February 1960 after searching for Sarwar in Lahore, Sialkot and other places but could not get him. Shafi also met me in Sialkot where he had gone in search of said Sarwar himself. On my return to Quetta on 25th February 1960. I was called to City Police Station and remained in custody for about 7 days on remand and was later released on bail. Sarwar had told me that he had stolen this gold from Shafi's shop and it belonged to Shafi." Muhammad Sarwar is still at large and a fugitive from justice. Fazal‑ur-Rehman was discharged by the trial Court, while charge was framed under section 380, P., P. C. against Abdul Majid respondent and under section 411, P. P. C. against Safdar Rehman and Muhammad Nawaz. Proceedings against Muhammad Nawaz were quashed in a writ petition filed by him in the High Court with the result that the case proceeded only against Abdul Majid respondent and Safdar Rehman, who as stated earlier were both acquitted. The order of acquittal was passed mainly on the grounds that the possession of the allegedly stolen gold by Muhammad Shafi complainant was not proved from his stock registers and account books, that there was not satisfactory explanation of a . delay of 18 days in reporting the matter to the police, that Muhammad Shafi complainant had a shady past and was involved in a smuggling case, that assuming that the gold was stolen, its identity could not be established to be the same as recovered from Muhammad Nawaz and Fazal‑ur‑Rehman, that the' confessional state ment of Abdul Majid respondent subsequently retracted could not be proved to be true, that security bond purporting to have been executed by Rehmat Ali P. W. brother‑in‑law of the respondent and at his instance, to the effect that Rehmat Ali executants would pay the price of the stolen gold to Muhammad Shafi in case Abdul Majid who was going in search of Sarwar, failed to return by the 25th of February 1960; was not admissible.

3. The learned Assistant Advocate‑General raised the follow ing contentions:‑ (i) That document `A' a security bond executed by Rehmat Ali, P. W. and brother‑in‑law . of the respondent, should not have been held inadmissible. . (ii) That there was evidence of extra‑judicial confession made by the respondent in the presence of P. Ws. 1, 2 and 6 which should not have been disbelieved by the trial Court. (iii) That there was a voluntary judicial confession made by the respondent which was recorded in a perfectly legal manner with complete observance of all formalities in this regard‑and its subsequent retraction would not make much difference. (iv) That the statement of Islam (P. W. 7) furnishes adequate corroborative evidence to the extra‑judicial and retracted judicial confession. (v) The entries in register (Exh. P/H) showing the sale of gold by the respondent in favour of Safdar Rehman further furnish another corroborative piece of evidence. (vi) That the conduct of the respondent having voluntarily gone in search of Sarwar is yet another strong factor lending support to his inculpation.

4. Before discussing the merit or force in the points raised by the learned Assistant Advocate‑General the correct legal position in regard to an appeal against acquittal must be ,clearly appreciated. It is a settled principle of law based d on a chain of authorities that ordinarily the High Court should not interfere in cases unless the order of acquittal has resulted in grave injustice. In Shiv Saroop and others v. King‑Emperor (AIR 1934 P C 227) it was laid down by their Lordships that "a verdict of acquittal should not be lightly disturbed by the High Court unless the acquittal is manifestly wrong." In Ahmad v. Crown (P L D 1951 F C 107) the same position was reiterated. In Bhagwan Das v. State of Rajasthan (P L D 1957 S C (Ind.) 426) it was observed by their Lordships that "an order of acquittal should not be set aside unless there are substantial and compelling reasons." However, the Courts have interfered in cases where the judgments of the trial Courts are perverse or where unsound and inconsistent standards were adopted by the trial Court in assessing credibility of evidence. Reference may be made in this regard to Surjan and others v. The State of Rajasthan (P L D 1957 S C (Ind.) 37). It is on the basis of this criteria that we now proceed to judge the strength or weakness of the points raised by the learned Assistant Advocate‑General.

5. Before assessing the merit of the above‑mentioned points we would like to observe that a good deal of time of this Court was wasted in tracing some of the relevant documents in the case and that too without much success. The confes sional statement of the respondent was recorded on the 22nd of April 1960 by Mr. Bashir Ahmad, Additional District Magistrate, who appeared as P. W.

12. There is no application on the record by which the police had presumably moved the Court for recording the confessional statement. There is a good deal of confusion as to whether the respondent was brought in custody or came on his own. Again, it is not clear what happened to him after the recording of his con fessional statement whether he was sent to the judicial lock‑up or being a free man was at liberty to go his own way. In vain did we try to fish out these relevant facts from the jumble of record.

6. While perusing the judgment of trial Court one cannot escape the impression of mis-appreciation of law and fallacy of reasoning. For instance there would be hardly a semblance of justification for the observation made by the learned Court at page 3 in paragraph 7 of the judgment that since Muhammad Shaft complainant had admitted to have been involved in a smuggling case and his brother was also convicted in a bribery case, that would be a relevant fact to be taken into considera tion so as to form the basis of an inference. A smuggler cannot be subjected to such an unwarranted perpetual disqualifi cation or legal disability to be a competent witness who should never be believed for that reason alone. Under section 54 of the Evidence Act previous bad character would not be relevant except in reply.

7. Again, the recoveries of gold from Safdar Rehman D and Muhammad Nawaz, the two co‑accused persons of the respondent, were not purported to have been at the instance of the respondent in his capacity as an accused person in police custody and were thus by no means facts discovered in con sequence of information received from him. On the other hand as the first information report would show, as a result personal inquiries from local jewellers and goldsmiths Muhammad Shafi complainant had been informed that the respondent and Sarwar had sold the gold to local jewellers. It is inconceivable D that the names of the purchasers were not known to him. Even the recovery memos (Exhs. P/J & P/K) do not indicate that the recoveries were made at the instance of the respondent as an accused in police custody. Obviously, therefore, it was never the case of the prosecution as the learned trial Court seems to have misapprehended that the recoveries were made under the protection of section 27 of the Evidence Act. Again, there seems to be clear indications of misreading of evidence inasmuch as it was stated at page 6 of the judgment that according to the prosecution case Muhammad Shafi complainant returned to Quetta on the 13th of February 1960 which is factually incorrect, as both in the first information report as well as in his statement as P. W. 1, Muhammad Shafi com plainant definitely mentioned 10th of February' 1960 as the date of his return from Jacobabad. As such, the learned Magistrate was mistaken in holding so. Similarly; a little earlier in the same paragraph at page 6 of the judgment, while referring to the confessional statement of the respondent, the learned Magistrate observed: "According to this confession Abdul Majid took 20 tolas of gold to Safdar Rehman accused .and sold it to him. This itself is against the statement of P. W. 8 Dur Muhammad and P. W. 9 Fayyaz. This part of the confessional statement stands disproved." Here again, the learned Magistrate does not seem to have properly appreciated the evidence of P. W. 8 and P. W. 9 whose depositions are only in regard to the sale of gold by Sarwar to one Sh. Fazal‑ur‑Rehman and they were not pro duced as witnesses of the transaction between the respondent and Safdar Rehman. Be that as it may, having carefully gone through the entire judgment of the trial Court, we find it difficult to say, the defects notwithstanding, that it is a perverse judgment. On the other hand, we have not been able to come to a different conclusion in any material point, although our reason may be different.

8. We now proceed to take up the points raised by the learned Assistant Advocate‑General:‑ (i) As referred to in the judgment by , the trial Court, document `A' was a security bond executed by Rehman Ali, P. W. 10, brother‑in‑law of the respondent, in favour of Muhammad Shafi complainant, wherein the sale of 28 tolas and 6 mashas of the stolen gold of the complainant by E Abdul Majid to Muhammad Nawaz and 20 tolas to Safdar Rehman was admitted. A reference was also made to the disappearance of Sarwar an accomplice of the respondent. Rehmat Ali executants stated in this document that he was sending the respondent to Punjab in search of Sarwar absconder and if the respondent did not return by the 26th of February 1960, he (Rehmat Ali) would pay the price of gold to Muhammad Shafi complainant. This document, besides being signed by Rehmat Ali executants, was also signed by Ghulam Rasul and Muhammad Nazir P. Ws. as attesting witnesses. In fact, this formed the corner stone of the whole edifice of the prosecution case and since no payment was made to the complainant by the 26th of February 1960, as stipulated in the so‑called security. bond, the case was registered on the same day. We have no hesitation in saying that the learned trial Court was perfectly justified in holding it inadmissible in evidence. Two important factors militate against its admissibility, one of which alone would be good enough to warrant its exclusion. Firstly, this is an admission by a third party binding himself on behalf of the respondent not in the least indicating that it was being done at the instance of the respondent. ‑ Secondly, such an agreement or writing being opposed to public policy would be hit by illustration (h) of section 23 of the Contract Act inasmuch as it would have the effect of stifling prosecution of a person accused of a theft which is an offence against society as al whole. We thus see no reason to take a different view from the learned trial Court. (ii) As regards the evidence of extra‑judicial confession is concerned, we are not satisfied that any such confession was ever made by the respondent. The first witness is the complainant himself and as such, his evidence shall have to be taken with a grain of salt. Ghulam Rasul (P. W. 2) one of the attesting witnesses of the inadmissible security bond discussed above; admitted in so many words to be a friend of the complainant. He referred to the admission of the respondent in the presence of Muhammad Siddiq, Nazir Ahmad, Rahmat Ali P. Ws. and Muhammad Shafi complainant, on the basis of which the security bond marked `A' was prepared. In this he is not supported by either Muhammad Siddiq or. Rehmat Ali., Nazir Ahmad is the second attesting witness of the security bond who appeared as P. W.

6. Even otherwise, the statements of Ghulam Rasul and Nazir Ahmad are discrepant on more‑ than one point. Both of‑them referred to document `A' which does not indicate even the presence of the respondent at the time of its execution by a third person. In fact, no detailed discussion of this point would be called for and it .could be disposed of on the short ground that the respondent was never questioned on this point when examined under section 342, Criminal Procedure Code, and as such, in all fair it could not be relevantly considered. (iii) In order to assess the evidentiary value of the retracted judicial confession of the respondent we have to see the background and the concomitant circumstances in which it was made. Three things have to lie clearly established in this regard, firstly, that there was a confession, secondly, that it was voluntary and, thirdly, that it was true. As the record would show the respondent was arrested on the 26th February 1960. On an application being moved by the police on the 27th of February 1960, he was remanded to custody for seven days in the first instance and two days subse quently on the 5th of March 1960. A further request made in this regard was turned down on the 7th of March 1960 when instead of extending the period of custody, the respon dent was ordered to be released on bail on furnishing security in the sum of Rs. 1,

003. His bail bond was accepted on the same day. The normal presumption would, therefore, be, that on the 22nd of April 1960, when he made the confessional statement, he was on bail. As against this presumption, we have the statement of the respondent himself when examined under section 342, Criminal Procedure Code, supported by the learned Additional District Magistrate who recorded the confessional statement. In answer to the last question, whether he wished to say, something else, he replied :‑ "I was summoned by the police for 21 days and was detained for 7 days in custody. It is only then that I was forced to make a confession. Otherwise, I am innocent. I neither stole nor sold the stolen property.", Experience shows that ordinarily confessions are made by offenders in some cases immediately after the occurrence when they voluntarily surrender themselves either feeling a prick of conscience and sense of remorse or apprehending other conse quences, but mostly confessions are made by accused persons in police custody soon after the commencement of the investi gation. There is nothing to indicate on the record that the respondent had been again committed to custody and was produced before the Additional District Magistrate in police custody at the time of making the confessional statement, but he clearly alleges that he was forced to make a statement before the police under duress. Support is lent to this contention of the respondent by, the statement of Mr. Bashir Ahmad, Additional District Magistrate, who appeared as P. W.

12. He admitted in cross‑examination that the respondent was produced before him in police custody. He did not recollect if any written request was made to him for recording the statement. Unfortunately, the record is also silent about it. Significantly enough it was also stated by the witness that the respondent was sent to the judicial lock‑up after his statement was recorded. These acts are not borne out by the record and it was con tended by the learned Assistant Advocate‑General that since the Additional District Magistrate had appeared in Court on the 19th of June 1962, i.e., more than two years after he had recorded the confessional statement, he was speaking from memory which failed him leading to this erroneous impression. Evidently, there appears to be some force in this contention of the learned Assistant Advocate‑General, but we fail to see any reason," why the record should be silent as to the circumstances under which the respondent was produced before the Additional District Magistrate. The position is not thus free from doubt and could d only be construed in favour ‑of the respondent. Again, coming to the statement itself we find that the very opening sentence is not based on truth. It reads thus: "Sarwar son of Gulab Din, was putting up with Shafi Goldsmith." This fact has not been borne out by the evidence on the record. On the contrary, Muhammad Shafi complainant stated both in the first information report and his statement in the Court that Sarwar used to live with the respondent. An analysis of the state ment would lead to the following inferences:‑ (i) On the 8th of February 1960, Sarwar gave him about 20 tolas of gold in Shafi's shop. (ii) He sold this gold to Safdar at the rate of Rs. 128 per tola and received Rs. 2,560 in cash from him which he gave to Sarwar. (iii) On the 9th of February 1960, Sarwar again gave him 28 tolas and 4 z mashas of gold inside Shafi's shop. (iv) He sold this to Siddiq and Nawaz goldsmiths at the rate of Rs. 128 per Cola and paid back the amount to Sarwar. (v) On the 11th of February 1960, on his return to Quetta Shaft interrogated him in the afternoon whether he had sold gold to anybody. He admitted before him the aforesaid two transactions. (vi) Shafi told him that the gold belonged to him. (vii) Shafi coerced him to produce Sarwar who had absconded. (viii) His relative Rehmat Ali stood surety orally for him that in case he (respondent) failed to produce Sarwar by the 26th of February Rehmat Ali would make good the loss to Shafi. (ix) Having in vain searched for Sarwar in Lahore, Sialkot and other places, he returned to Quetta on the 26th of February 1960. (x) Shafi had also met him in Sialkot who had gone in search of Sarwar himself. (xi) On the 25th of February 1960, he was called at City Police Station and remained in custody for about seven days and was later released on bail. (xii) Sarwar had told him that he had stolen the gold from Shafi's shop and it belonged to Shaft. In a nutshell the element of confession is only to the extent that Sarwar had told him that he had stolen this gold from Shaft's shop and it belonged to him and that he (A. Majid) had disposed of the same and had returned the amount to Sarwar. The last sentence in the statement reads thus: "Sarwar had told me that he had stolen this gold from Shaft's shop and it belonged to Shaft." A perusal of Exh. P/M, particularly the narrowed space between the last two lines in it,, conveyed an impression that this incriminating sentence was added after the statement had been completed. But for this sentence, which in itself is written in a dubious manner, there would be nothing to raise a presump tion of guilt against the respondent in this statement. While saying this, by no means do we suggest that the Additional District Magistrate was playing in the hands of police, but a cursory glance of Exh. P/M would certainly lead support to the impression that it was a subsequent addition may be a minute later, and the defence counsel rightly questioned the Additional District Magistrate on this point. In the circum stances, it appears to be different to say that it was confession truly and voluntarily made. Again the recoveries allegedly made from Safdar Rehman and Muhammad Nawaz do not, in any way lend support to the prosecution case by furnishing corroboration of the con fessional statement. Muhammad Nawaz, who according to the statement of Sub‑Inspector Sultan Shah (P. W. 13) was in the first instance cited as P. W. in the calendar of witnesses and was subsequently challaned as a co‑accused, stated during the trial as follows:‑ "Firstly I was cited as a witness by the police and the gold P/7 was recovered from me at my instance. Actually on 27‑2‑1960 1 purchased 28 tolas 7 annas from Haji Qambar Ali arid Sons vide R. No. 971 which is Exh. D/A and in the same condition I handed over the same to the police on 27‑2‑60 at about 7 p.m. This gold was purchased from Qambar Ali for my own use and because it was available with me it was taken into possession by the police from me and I was promised that the same will be returned to me. I am innocent." A perusal of a photostat copy of Exh. D/A would show that the statement is not merely a desparate attempt on the part of the accused person to explain away the possession of incrimi nating piece of gold, but is supported by documentary evidence imparting a semblence of truth to it and inspiring confidence. It would be pertinent in this context to make a reference to the judgment of Mr. Justice A. R. Khan dated the 25th of September 1963, which is on the file, whereby on the recom mendation of the Sessions Judge, Quetta, he quashed the charge framed against this very Muhammad Nawaz, a co‑accused of the respondent. The relevant portion is reproduced below:‑ "

4. It is further pointed out that Ghulam Rasul (P. W. 2) had deposed to the effect that in his presence 28 tolas and 6 mashas of gold had been recovered from the shop of the petitioner by the Sub‑Inspector, who had been investigating the case, along with his (petitioner's) rough note book. It is pointed out that an entry in this note book indicated that the petitioner had purchased 28 tolas and 6 mashas of gold for Rs. 3,718‑8‑0 from Haji Qambar Ali & Sons on the 27th of February 1960; viz., on the same day on which it is said that he had voluntarily produced the gold from his shop. This note book is said to have been lost, but a photostat copy of the cash memo. issued by Haji Qambar Ali & Sons had been produced by the petitioner indicating that he had purchased the gold referred to above from him on the 27th of February 1960. (5) In view of this position, it could hardly be maintained that the gold handed over by the petitioner to the police was part of the same as had been stolen front the shop of Muhammad Shafi between the 7th and 10th of ‑ February 1960." Similarly, the recovery of 311. tolas of gold allegedly made from Safdar Rehman and denied by him as having been purchased from the respondent. in the form of three gold bars and three small pieces (Exh. P/1 to P/6) was explained by. him in the following words before the trial Court:‑ "I neither committed. ‑the theft nor purchased ‑the stolen property. Gold (Exhs. P/1 to P/6) belongs to me and due to high‑handedness of the police I was forced to melt my personal gold ornaments and convert into gold bars and hand over to the police at 11‑30 night in the Police Station. This gold is not pure gold. I am sole proprietor of my business and my father Fazl‑ur‑Rehman accused No. 3 has got no say in my business. I am alone .paying income‑tax." Ghulam Rasul (P. W. 2), one of the attesting witnesses of the relevant recovery memo. (EXh. P/J) stated in cross‑examination that the police had recovered gold from Safdar Rehman in the police station and it was night time. The witness was, however, unable to say whether , it was' 11‑30 p.m. Allah Ditta (P. W. 11) the other attesting witness of the recovery memos. (Exhs. P/J and P/K) admitted in cross‑examination that these recoveries had. been made in the police station at night time. He was, however, not definite whether it was 11‑30 p.m. In the complete and conspicuous .absence of any evidence estab lishing the identity of the recovered gold with the allegedly stolen gold it appears to be difficult to disbelieve the statements of Safdar Rehman and Muhammad Nawaz. In this view of the matter, we are not convinced that either the confessional statement was freely and voluntarily made or that it was corroborated in any manner whatsoever much less in material particulars. (iv) The learned Assistant Advocate‑General laid great stress on the evidence of Muhammad Islam (P. W. 7) as a corro boration of confessional statement of the respondent in regard to the sale of gold by the respondent to Safdar Rehman. This witness worked as a salesman at Modern Ornaments House Liaqat Road of which Safdar Rehman co‑accused was the proprietor. He stated that on the 8th of February 1960 at 1 p.m. the respondent visited the shop and inquired from Safdar Rehman if he wished to purchase gold who expressed his willingness to purchase only 20 tolas. The respondent left the shop and returned after 15 or 20 minutes with two pieces of gold weighing 20 tolas. The rate was settled at Rs. 128 per tola. The amount was paid to the respondent who left the shop. In cross‑examination the witness stated that he was sent by Inayat P. W., the brother of Muhammad Shafi complainant, to inquire whether he (Safdar Rehman) wanted to purchase some gold or not. To this, Safdar Rehman replied in the affirmative. Ire farther added that the police had told Safdai that he should produce all the gold, presumably meaning thereby the entire quantity, he had purchased, even if he had to melt the ornaments which were, however, not melted in his presence. He further added that it was night time and 11 p.m. Critically perused, the statement would .lead to two inferences, firstly, that the total gold allegedly sold by the respondent to Safdar Rehman and subsequently recovered was 31. tolas 6 mashas and not 20 tolas as deposed by Muhammad Islam P. W. and, as such there is a material discrepancy, secondly, it lends support to the defence version that the gold had been sold by Inayat P. W., the brother of the complainant, 'through the respondent. As such the statement of M. Islam P. W. is not of much avail to the prosecution: (v) We are afraid that the entries in register (Exh. P. H.) are not of any avail to the prosecution either. They have been labelled, though not exhibited and are dated the 8th of February 1960, bearing the signatures in Urdu of Ghulam Rasul. and Allah Ditta P. Ws. who were also the attesting witnesses on the recovery memos. (Exhs. P/J and P/K), Rendered into English the second entry reads thus: "Gold 20 tolas (tezabi) at the rate of Rs. 128 from Muhammad Inayat Saraf Jhelum Jewellers." The amount entered in front of it is Rs. 2,

560. We have no been able to decipher the first entry in which the amount of Rs. 2,500 is evidently over‑written purporting to have bee realized from Sh. Fazal‑ur‑Rehman. Dur Muhammad (P. W. 8; at whose shop Sarwar absconder was working as an artificer deposed that in his presence Sh, Fazal‑ur‑Rehman had purchase two pieces of gold weighing 1 i tolas from Sarwar at the rat of Rs. 128 per tola and Fazal‑ur‑Rehman paid Rs. 800 his presence to Sarwar promising to pay the balance within an hour. Again, the name of one Sh. Fazal‑ur‑Rehman find a mention in the statement of Fayyaz (P. W. 9) who supported the earlier transaction between Sarwar and Fazal‑ur‑Rehma at the shop of Dur Muhammad. Before we scratch our head to appreciate the real significance of this entry, we may straight away observe that these entries contained in an unpaged register were not duly proved to be admitted in evidence. We d not know who is toe scribe and when, how and under who circumstances the entries were made. They cannot, therefor be read into evidence and are excluded from consideration. (vi) As regards the conduct of the respondent that I voluntarily went in search of Sarwar absconder, is concerned we are not prepared to agree in the first instance that I had gone voluntarily and not under duress. Assuming the did volunteer himself to go in search of Sarwar it would hardly raise the I)resumption of his guilt. He being an employee of Muhammad Simi! complainant could even volunteer to do so out of sympathy for the latter which possibility cannot be ruled out.

8. It was contended by the learned counsel for the respon dent that to say the least the factum of the disappearance or theft of gold itself was not established beyond doubt, as would be clear from a perusal of the statement of Muhammad Shaft (P. W. 1), particularly his cross‑examination, wherein he failed to prove the accumulation of 80 tolas of gold with him at the relevant time. Having perused registers (Exhs. P/1, P/2 and P/3) produced by the complainant we have no hesitation in saying that these so‑called registers, which are merely exercise books, definitely appear to have been prepared in the same ink, .in the same hand and at the same time. About 20 pages of Exh. P/1 have been used by some school boy for English translation. The persons mentioned in these registers cannot be fictitious persons, nor are the entries mere figment of somebody's imagination, but we have every reason to believe that they have been subsequently transferred and copied out from some other registers perhaps with a view to produce in the case. The account books are in a hopeless mess and cross‑examination of the complainant ‑shows that it was confusion worse confounded. Be that as it may, w& are not inclined to think that it was all a cock and bull story and a mere fabrication: Why after all so much ado for nothing. Why should the complainant bring a false case against his own employee and against other well‑to‑do members of his own profession. Why should he himself go to Sialkot in search of Sarwar absconder. There is not the least indication or sugges tion on the part of anyone of the accused persons in the case for his false implication. It was also argued by the learned counsel for the respondent that having left for Jacobabad the complainant sent a telegram to his brother and strangely enough made no reference to the gold inadvertently left by him in the shop outside the safe. Having considered all the pros and cons we are of the view that it was not a made‑up affair. However, for reasons already recorded, the mere presumed or established factum of theft with no evidence to positively link the respondent with its commission is only a blind‑alley leading nowhere. 9: For the foregoing reasons the appeal is dismissed. S.A.H./S.Q. Appeal dismissed.