' SHER ZAMAN CHAUDHRY, J.-These two appeals, by leave, one by Muhammad Saeed and the other filed by Muhammad Yusuf are directed against the judgment of the High Court passed on 15-2- 1979 whereby they were convicted for the offences under sections 457 and 380, A. P. C. And sentenced to 7 years' imprisonment with Rs, 1,000 as fine on each charge. Since both these appeals, though filed separately, seek to challenge the validity of the same judgment, passed by the High Court, these will, therefore, be disposed of by this single judgment.
2. The prosecutions case briefly stated is that on the morning of 24th of January, 1974, at about 7- 30 a.m. Mr. Lnayatullah Sub-Postmaster Rawala kot left for the office. On his arrival in the Verandah on the front side of the Post Office he noticed that the door of the Post Office was open and the glass panes were scattered on the floor. Thereafter he went inside and found that the locks of the strong room and that of the iron sate inside the strong room had been broken and the door was open. The complainant Inayatullah then came out and called Mazharul Hag, another employee of the Post Office. On his arrival, they together went inside the office and waited for the Cashier. After the arrival of the Cashier they checked the cash register. An amount of Rs, 40,752.73 was found to have been stolen. On a report filed by Inayatullah Sub-Postmaster with the Police Station, Rawalakot on 24th of January, 1974, at about 10-30 a.m. a case under section 457/380, A. P. C. Was registered.
3. On 26th January, 1974, the Investigating Officer conducted a raid on the house of Muhammad Saeed appellant. Search was carried out in presence of P. Ws. Havaldar Muhammad Sharif and Muhammad' Asian]. During the search currency notes of rupees 5, 10 and 100 denomination in shape of bundles bearing receipt stamps of National Bank of Pakistan, Rawalakot, in all amounting to Rs, 17,500 were recovered from inside the house belonging to Muhammad Saeed appellant. This amount, kept in an aluminium pot with a lid on it, is claimed to have been recovered by the police buried underneath the floor of a cattleshed room. The amount after having been recovered was counted in the presence of witnesses who signed the recovery memo. Exh. P. F.
4. Again on 27th of January, 1974, an amount of Rs, 20,040 is claimed to have been recovered at the instance of Muhammad Yusuf appellant. He is stated to have led the police to his house where in presence of P. Ws., Lal Khan and Baluch Khan, he unlocked a suitcase, took out the amount from inside the suit-case and handed it over to the Investigating Officer. The money so recovered consisted of four bundles alongwith some loose currency notes, in all amounting to Rs, 20,040. The recovery memo Exh. P. G. Was prepared and signed by P. Ws. Lal Khan and Baluch Khan. Besides, a sum of Rs, 3,212 was also recovered from Sulaiman Khan, the father-in-law of Muhammad Yusuf vide recovery memo Exh. P. E. On 30th of January, 1974 in presence of P. Ws. Inayatullah and Abdul Aziz.
5. The accused-appellants, after completion of the investigation, were forwarded to stand their trial in the Court of A. D. M., Rawalakot for the offences under section 457/380, A. P. C. After the trial both the appellants were acquitted by the learned trial Court vide its order, dated 31-7-1977. On appeal before the High Court, filed by the State, the acquittal order recorded by the trial Magistrate was set aside. The appellants were convicted for offences under section 457/380, A. P. C. And sentenced to 7 years' R. I. With a fine of Rs, 1,000 on each charge. It is this order of their conviction passed by the learned High Court the reversal of which is now being sought by the appellants on the following grounds :- (a)that the charge under section 457 is not supported by the evidence on record ; (b)that the evidence to sustain the conviction under section 380 was non-existent ; and
(c) that the conviction under section 411, A. P. C, could also not be recorded on account of defective recoveries."
6. Arguing on the first point of his objection, it was submitted on behalf of the appellants that there existed no evidence whatsoever, either direct or circumstantial, to sustain a charge under section 457, A. P. C. The evidence on record, submitted the learned counsel, was a clear manifestation of the Fact that even basic essentials constituting the offence under section 457 are lacking in the present case. This aspect of the case has not been attended to by the learned Judges in the High Court. The impugned judgment on the point, recorded by the learned High Court was, therefore, bad in law,
7. Raja Muhammad Akraul Khan, the learned Advocate-General in reply argued that there existed evidence of P. Ws. Jamadar Noor Hussain and Mirza Inayatullah on the record. These P. Ws. Are the witnesses of recovery of glass panes on which were found the finger-prints. The evidence deposed by Muhammad Anwar S. I. Police, a finger-print expert, clearly connects the prints with Muhammad Yusuf accused-appellant. The evidence of these P. Ws., according to the learned Advocate- General, was convincing and suffered from no infirmity. So, there was sufficiently strong circumstantial evidence at least to the extent of Muhammad Yusuf appellant on the basis of which conviction for offence under section 457 could be sustained. The "impugned judgment, at least to this extent, submitted the learned Advocate-General was open to no exception.
8.Apart from the evidence of recovery of glass panes having finger-prints on them and the statement of P. W. Muhammad Anwar there exists no other evidence, to the effect that any of the appellants was seen anywhere near the place of occurrence muchless on the Post Office premises at the relevant time. The conviction on the charge of lurking house trespass or house breaking by - night with the intention to commit theft is sought to be maintained on the sole evidence of finger- print expert. The conviction if there is to be on the j basis of circumstantial evidence alone, then it ought to be of a convincing A quality and without any blemish. The conviction otherwise would not be in keeping with the principle of safe administration of justice in criminal matters.
9.As already stated in the earlier part of this judgment the only evidence relevant to the charge under section 457, A. P. C. Is the statement of Muhammad Anwar S. I. Police, a finger-print expert. He is claimed to have examined and compared the finger impression found on the glass panes, taken out from the ventilator of the post office with the specimen finger impressions of Muhammad Yusuf accused-appellant. His report is Exh. P. P. On the record which reads :- "The photographed impression marked as 'a' on the photograph is identical with the left index finger impressions of Muhammad Yusuf Khan on his sample paper per characteristic points of identity dotted in it and also in the left index specimen print marked as X. The photographed impression marked as on the same photograph is identical with the left middle finger impressions of Muhammad Yusuf Khan on his sample paper per characteristic points of identity dotted in it and also in one of the left middle finger specimen print marked as Y."
Surely his report, as it is, can hardly be taken as explaining anything much-less a statement of reasons on the basis of which could be judged the correctness of conclusions so drawn by this expert witness. The opinion of an expert by itself may indeed be relevant but what weight would it carry with the Court if it is unaccompanied and unsupported by reasons, which led him to form opinion, is altogether a different matter. Opinion, if it is to be accepted it ought to be supported by clear statement of reasons so that the Court although not an expert may be enabled to form its own judgment on that material.
10.P. W. Muhammad Sarwar the author of the report Exh. P. P. Also appeared as a witness. The perusal of his statement in the Court is not of much help either. There is no mention in his evidence about number of the points of similarity or their precise descriptions or as to whether the impressions were of arches, loops whorls or composites type. There is nothing in the evidence with regard to the nature of fixed points known as delta or the point of core and as to bow these are formed. Neither in the report of this expert nor in his statement before the Court is there any mention of conditions and descriptions of the ridges. On careful consideration of the evidence on the point we are of the view that it can hardly be regarded as confidence inspiring. To record conviction on charge under section 457, A. P. C. On the sole basis of the evidence of P. W.
Muhammad Anwar which indeed is found to be of dubious nature will not be in accordance with the principles of safe administration of justice. We have with utmost care gone through the impugned judgment and have not been able to find even a mention about the evidence on the basis of which the learned Judges in the High Court found the appellants guilty of offences of lurking house trespass by night or house-breaking by night with the intention to commit theft. We, therefore, discharge the conviction recorded by the learned High Court for the offence under section 457, A. P. C. The appellants are acquitted of this charge.
11. It was next argued by the learned counsel for the appellants that conviction under section 380, A.
P. C. Could not in view of the evidence on record be sustained either. The conviction recorded by the learned High Court on the charge of theft, as submitted on behalf of the appellants, was bad in law and liable to be set aside.
12. Raja Muhammad Akram Kban, the learned Advocate-General controverting the arguments advanced on behalf of the appellants contended that the amount stolen from the post office has been recovered from the appellants. Since the recoveries made at the instance of the appellants have sufficiently been proved and the evidence on the point suffers from no legal infirmity, the conviction under section 380, A. P. C. Was, therefore, perfectly in accordance with law.
13. We will now proceed to examine the merits of the arguments advanced by the learned counsel for the parties on the point. Whole evidence on record has carefully been examined. Nowhere in the evidence of the P. Ws. Could we find even a mention that any of the appellants was found anywhere near the place of occurrence mumbles on the premises of the post office at any time during the relevant night. The evidence with regard to the identity of finger-prints claimed to have been found on the glass panes recovered vide recovery memo. Exh. P. B. Has already in the earlier part of this judgment been declared worthy of no credence. So, therefore, now what we are left with is the evidence of recovery of the stolen amount. It is correct that if a person, immediately after the theft, is found to be in possession of the stolen goods the presumption would be that either he is the thief or is in possession of those with the knowledge that those were stolen. The question now, therefore, requiring determination is as to whether the recoveries have been effected in accordance with law and the amount recovered was the same which was stolen from the post office.
14. The prosecution, in order to prove that money recovered was the same which was stolen from post office, produced P. Ws. Qazi Muhammad Shakoor, Noor Hussain, the employees of the post office. Muhammad Rehan, Babu Nazir and Abdul Aziz, the employees of National Bank, Rawalakot.
The careful examination of the evidence of these P. Ws. Reveals that the factum of the ownership of the recovered amount has convincingly been proved. Through the evidence of these P. Ws. It has been established that the amount recovered in shape of bundles with receipt slips and stamps bearing signatures of the cashier and the head cashier of the National Bank was the same which was delivered by the National Bank Rawalakot to post office from where it was finally stolen on the night between 23rd/24th January, 1974. We have given our careful consideration and found that the evidence on this point is of confidence inspiring and convincing quality. It suffers from no inherent infirmity. No reason, from the perusal of evidence of these witnesses, appears to exist as to why they should not be believed. The mere fact, as observed by the learned trial Magistrate, that the relevant invoice proved through the evidence of P. W. Abdul Aziz was handwritten or that the bundles with the receipt slips bearing the signatures and the stamps of the Bank, identified by Muhammad Rehan P. W., a head cashier of the National Bank, did not carry the date as well could hardly be regarded as a justification for discarding the whole statements of these P. Ws. Besides, the learned Magistrate did not even care to consider the evidence of P. W. Qazi Muhammad Shakoor, a cashier in the post office, and Babu Nazir, a cashier of the National Bank Rawalakot. The evidence deposed by these two P. Ws. Relates to the descriptions of the amount recovered, its entry in the cash register and then as to how these bundles were prepared and receipt slips and stamps placed on those bundles. P. W. Babu Nazir proved his signatures on those bundles with receipt slips which were then delivered to the post office through Noor Hussain, an employee of the post office. Discarding the evidence of all these P. Ws. On the point on such flimsy grounds could hardly be regarded as valid. We, therefore, are in agreement with the learned Judges of the High Court that the ownership of the amount recovered has sufficiently been proved.
15. Adverting to the second part of the query which is as to whether the recoveries have been effected in accordance with law we will now proceed to examine the evidence on the record.
Recovery of the amount of Rs, 17,500 from the house belonging to Muhammad Saeed, appellant, is claimed to have been effected on 26th of January, 1974, vide recovery memo Exh. P. F. Which was witnessed by P. W. Havaldar Muhammad Sharif and Muhammad Aslam Khan. We have carefully examined the evidence of these two P. Ws. Nowhere in their evidence is there any mention that the recovery of the amount was effected at the instance of or in the presence of Muhammad Saeed appellant. Exh. P. F. The recovery memo. Pertaining to this amount, made from the house belonging to Muhammad Saeed appellant has also been gone through with utmost care. Nowhere in it is there any mention that this recovery was either effected at the instance of the accused-appellant or that it was made in his presence. There is evidence on record that apart from the appellant and his family members his brother-in-law Roshan Khan alongwith his family was also residing in the house during the relevant time. Besides, these witnesses of recovery are found on the record to be inimical to the appellant. P. W. Muhammad Aslam was married to the sister of the appellant whom he had divorced. Apart from the fact that the relations between the appellant and the witnesses of recovery were strained, the evidence on the point suffers from other defects. It is in the evidence of both these witnesses that the recovery memo. Was signed by these two witnesses not on the spot but many days after the recovery was effected. On careful examination of the evidence and in view of the facts listed above the mere fact of recovery of the amount having been effected from the house resided by so many other people could hardly be regarded as a basis for recording the conviction of Muhammad Saeed appellant for the offences under section 380 or 411,H A. P. C. There is no other evidence, except that already considered, on the record incriminating the appellant.
This important aspect of the case has not received the consideration of the learned Judges of the High Court. The conviction of Muhammad Saeed, appellant, recorded by the learned High Court is not in keeping with the settled principles of appreciation of the evidence. Giving him the benefit of doubt we, therefore, set aside the con viction of Muhammad Saeed appellant recorded vide the impugned judgment. He stands acquitted.
16. We will now proceed to examine the case of Muhammad Yusuf appellant. An amount of Rs, 20,040 is claimed to have been recovered at the instance of Muhammad Yusuf appellant on :c7-1- 1974, vide recovery memo Exh. P. G. Witnessed by Lal Khan and Baluch Khan. This document Exh. P.
G. Which is the recovery memo. Prepared by the Investigating Officer Raja Wali Dad Khan, is signed by these witnesses in whose presence the recovery is claimed to haye been effected. According to the prosecution evidence, Muhammad Yusuf appellant is stated to have led the police to his house where in presence of P. We. Lal Khan and Baluch Khan he unlocked a suit-case, took out money from inside the suit-case and handed it over to the Investigating Officer. P. Ws. Baluch Khan the witness of this recovery when appeared as a witness, did not support the prosecution on the point that money taken out from the suit-case was handed over to the police in his presence. He instead stated that when he entered the room he saw the bundles of the currency notes lying on the table and the Police Officer was counting the money. So, therefore, he was declared hostile and cross- examined. P. W. Muhammad Lal is another witness of this recovery. On careful examination of the evidence deposed by this witness it is found to be fully supportive to the prosecution case. He was subjected to a lengthy cross-examination. Yet, however, nothing substantial has been found on the basis of which the evidence of this P. W. Could be regarded as unreliable. He is found to be independent and impartial witness, having no cause to complicate the accused-appellant falsely in the case. The only point to his discredit, as appears from the record, is that he is Chowkidar of the village. His evidence is straightforward, clear and free of any infirmity on the essential Points. His evidence is also supported by P. W. Baluch Khan except where he deniel his presence at the time when Muhammad Yusuf appellant is claimed to have unlocked the suit-case and had taken out the money so recovered. Besides, there is evidence of Raja Wali Dad Kha Inspector C. I. A. Who is claimed to have effected the recovery. His evidence suffers from no legal infirmity on the material aspect of the factum of recovery. The defence has not been able to show as to why the evidence deposed by this witness be not relied upon. No ill-will or motive for false implication has been attributed to this witness. Partiality or ill-will towards the accused-appellant has not even been suggested to this witness. We have with great care gone through the evidence deposed by Lal Khan and Raja Wali Dad Kban. Apart from the discrepancies of minor nature on ancillary matters their evidence. In our estimation, is convincing and o confidence inspiring quality on which safe reliance can be placed.
17. We have alto gone through the judgment passed by the learned trial Magistrate. The whole statement of P. W. Lal Khan has been discarded by the trial Court on the ground that since in recovery memo. EA). P. G. It is written that accused-appellant Muhammad Yusuf took out the key from underneath a board and then unlocked the suit-case as such this writing was in conflict with the statement made by P. W. Lal Khan in his evidence before the Court which is to the effect that the accused-appellant took the key from the board and then unlocked the suit-case. Other reasons for declaring the recovery unreliable and contrary to law were :-
(a) that the recovery memo. Exh. P. G. Did not contain the writing that the recovery was made at the pointing of the appellant
(b) that the presence of the appellant's father in the bourse has clearly been admitted by P. W. Lal Khan out Raja Wali Dad Khan, Inspector Police, who made the recovery stated in his evidence that he had no recollection as to whether the father of the appellant was also there at the relevant time or not? As such his statement was held to be in conflict with the evidence deposed by Lal Khan.
Influenced by these considerations the learned trial Magistrate declared the recovery worthy of no credence and to have been made not in accordance with law. So, therefore, he acquitted the appellants on all the charges.
18. It is correct that the acquittal recorded by the trial Court normally would not be interfered with unless where it is found to be made on artificial reasons and the conclusions drawn by the trial Court were contrary to the settled principles of the appreciation of evidence. We have pondered much over the reasons recorded by the trial Magistrate on the basis of which the recovery was ruled out of consideration. We on careful consideration of the evidence on the point find that such flimsy grounds could hardly be made the basis for discarding the whole evidence deposed by these P. Ws. Of recovery. The evidence of these P. Ws. On examination is found to be convincing on which safe reliance could be placed. It is free of any inherent defect. Appraisal of the evidence done by the trial Court is superficial and conclusions thus drawn by it are unwarranted in law and violative to the accepted norms of the appraisal of evidence. The finding thus arrived at by the trial Court is due to the defective approach to the proposition required under law. A bare reading of recovery memo. Exh. P. G. Would reveal that it has clearly been written in it that Muhammad Yusuf appellant took out the key himself, unlocked the suitcase, took out the money and handed it over to the Police Officer. This entry in the, recovery memo. Is fullY supported by the evidence of Raja Wali Dad Khan and P. W. Lal Kban. This evidenc in the estimation of the learned trial Magistrate did not fulfil the legal requirement. Instead the evidence, according to the learned Magistrate, shout have been to the effect that the money was recovered at the pointing .Of that appellant. This obviously is a faulty approach and not a requirement of law. Besides, the fact that appellant, after taking the key, unlocked a suit-case, from inside which he took out the amount recovered and handed it over to the Recovery Officer, was a relevant piece of evidence admissible under la and a circumstance against the accused-appellant under section 8 read white section 27 of the Evidence Act. The proposition was considered by that Supreme Court of Pakistan in Gul Jamal and another v. The State (1) in Lb following circumstances. In that case the accused apart from conveying the information to the police with regard to the weapon of offence also led the police officer to that place and followed the flow of the water from where the articles were recovered. An objection to this part a the evidence was raised on behalf of the accused-appellants. Attending to the proposition Mr. Muhammad Haleem, J. Observed "Nonetheless the act of Gul Jamal in picking up the dagger from under the box is an act which independently of the statement is a relevant fact as a piece of conduct under section 8 of the Evidence Act and can legitimately be taken into consideration against him." {{FOOT NOTE}}
(1) 1980SCMR 654 {{FOOT NOTE}} ' Reliance was placed in case of Emperor v. Nenua (1), wherein it was observed :- "Conduct may in certain circumstances include statements as well as acts, but in doing so it still retains the difference between an act and a statement. The difference between a statement and an act is in our opinion clear. A statement must consist of words, be they spoken, be they written, or be they spelled out, as would be done by a mute person who spells out words on his fingers, and we are inclined to think that even words would not always be statements as for instance, if a person recited the numbers from 1 to 10, if one considers a statement in the sense used in section 162, Cr. P. C. Acts however, exclude words and in our opinion cannot be translated into words. For instance, if a person points out a place it is impossible to say whether, had he spoken, he would have said look there or dig there or you will find there or I have buried there or I have committed such and such a crime. We are unable to hold, therefore, that the facts that in the present case the appellant, by taking in his hands certain articles and handing them over, made a statement muchless can we find that he made a statement which amounts to a confession."
' Again in Ganu Chandra Kashld v. Emperor (2), while attending to the proposition Beaumont, C.1'.
Held :- "The fact of the production of these sums of money is of course admissible as conduct under section 8 of the Act, and if the fact of production is admissible, then the circumstances in which the production took place are also relevant under section 9."
19. The correct legal approach to the proposition in the present case has well been illustrated by the observations made by the learned Judges in the above-listed cases. In ultimate analysis the learned Magistrate by ruling the evidence of the witnesses of the recovery, pertaining to Muhammad Yusuf appellant, out of consideration, has committed illegality. The reasons recorded for such an approach are found to be artificial and unreasonable. Interference in such a case by the Superior Court would not only be proper but desirable. In this view of the matter we are, therefore, in agreement with the learned Judges of the High Court that the recovery of the amount stolen, effected at the instance of Muhammad Yusuf appellant, has been proved beyond any reasonable doubt.
20. With regard to the recovery of Rs, 3,212 from Suleman Khan, the father-in-law of Muhammad Yusuf appellant, vide recovery memo. Exh. P. E. On 30th of January, 1974, we find that neither the ownership of this amount has through the evidence been traced back to the post office nor any connection of it has been established with Muhammad Yusuf appellant. This recovered amount, therefore, could not under law be delivered to the post Tice. There exist tangible evidence on record to warrant such a finding. His amount, therefore, is to be restored back to Suleman Khan.
We, however, in view of the reasons listed in the earlier part of this udgment find that conviction of Muhammad Yusuf recorded under section 380, A. P. C. By the learned High Court was not proper.
The conviction, therefore, recorded for the offence under section 380, A. P. C. Is set {{FOOT NOTE}}
(1) AIR 1941 All. 145 (2) 33 Cr. L J 396 {{FOOT NOTE}} aside and the appellant instead is convicted under section 411, A. P. C. And is sentenced to undergo 2 years' R.
1. And a tine of Rs, 100; in case of default in payment he is to undergo one month's imprisonment.
The appeal to this extent stands rejected.