1. SALAHUDDIN AHMED, J.-This appeal by leave of this Court is from the order of the former High Court of West Pakistan, Lahore, maintaining the conviction of the appellant and Mohammad Ashraf under sections 302 and 458 of the Pakistan Penal Code and their sentences thereunder of transportation for life and 14 years' rigorous imprisonment, respectively. They were tried along with another person, namely, Mehraj Din under the aforesaid sections, and while Mehraj Din was acquitted, the other two were convicted. Another accused named Mohammad Adam turned approver and he was examined as P. W. 15 in the case.
2. It may be stated at the outset that the evidence of the approver and of recovery of certain stolen articles have been disbelieved by both the Courts, and the conviction of the appellant rests entirely on circumstantial evidence.
3. The prosecution case may briefly be stated thus: The occurrence took place in Climax Factory, Gujranwala, on the night between the 6th and 7th January 1963. Oil the morning of the 7th January when P. W. 13, Mukhtar Ahmad, Manager, Climax Factory, arrived at the Factory accompanied by a purchaser, he found the door of the factory still closed from inside. They called out the Chowkidar of the factory, and having failed to receive any response from the letter entered the factory through the foundry shop, the door of which was found broken. Inside the factory they found the Chowkidar, Mohammad Abdullah, lying dead. They went to the account office and found its door broken and the steel Almirah and Cash Box inside the office broken, and papers lying scattered. The door of the Chief Accountant's office was also found broken, and inside his office the drawers of the table were found lying on the table. They went to the second storey and found the door of the store-room broken, and the steel Almirahs there containing valuable instru--ments lay open. They then proceeded towards Police Station City Gujranwala but having met P. W. 21, Sub-Inspector Mian Sultan Asghar on the way, opposite Railway Station Gujranwala at 9-30 a. m., Choudhary Mukhtar Ahmad, Manager, informed the Police Officer about the occurrence and the statement Exh. P. B. Was recorded. The statement was received at the Police Station at 10 a.m. And on its basis P. W. 3, Moharrir Head Constable Mohammad Bashir drew up the formal First Information Report Exh. P. B./ 1.
4. Sub-Inspector Mian Sultan Asghar, P. W. 21, visited the scene of the occurrence the same day at 9- 40 a.m. And, among other things, seized a Cash Box, Exh. P. 23, including its broken lid, an iron strip, Exh. P. 24, after it had been detached from the steel Almirah, and a wooden drawer, Exh. P.
25. He also had certain footmarks photographed by a press photographer, P. W. 26, Khair Din.
5. P. W. 25, Sub-Inspector, Mirza Sardar Khan, arrested appellant Mohammad Mazhar and approver Mohammad Aslam on the 14th February 1963. On the same day the appellant led Sub-Inspector Mirza Sardar Khan to the former's house and produced from there certain stolen articles, namely, micrometer, Exh. P. 16, and spoons, Exh. P. 22/1-3. Certain other articles were also recovered at the instance of some other accused persons. It is, however, unnecessary to go into details of these and other recoveries inasmuch as both the Courts did not rely upon them.
6. On the 16th of February 1963, samples of thumb, finger and palm impressions of the appellant and the other accused persons including the approver were taken by P. W. 23, Head Constable Izhar Hussain in the presence of a First Class Magistrate. On the 20th February 1963, a track identification parade was held before the Magistrate, and P. W. 8, Kaloo, Tracker correctly identified the foot marks of the appellant, the approver and accused Mohammad Ashraf, and said that he had seen their foot prints at the scene of offence in the factory. The witness, however, could not identify the foot prints of accused Mehraj Din. It appears, however, that photographs of the foot marks taken at the scene of offence had been shown to the Tracker before the identification parade was held.
7. P. W. . 12, Sub-Inspector, Rab Nawaz, Finger Print Expert visited the Climax Factory on 7-1-1963 at 3 p. m., and. Among other things, saw some finger, prints and palm impressions on certain articles which were taken into possession by the Sub-Inspector P.W. Mian Sultan Asghar made those articles into sealed parcels in presence of P. W. 12, Rab Nawaz. These parcels were received at the Finger Prints Bureau on the 10th January 1963 and on the 11th January 1963, they were handed over to Sub-Inspector Rab Nawaz Khan who found the seals intact and having opened them took photographs of the finger, thumb and palm impressions appearing (on the articles. He also made their photographic enlargements. P. W. 16, Sub---Inspector Mohammad Aqeel, Finger Print Expert, compared the photographs with the sample papers bearing the impressions of the accused persons, including the appellant, and found them to be the finger, thumb and palm impressions of the appellant and two other accused persons, including the approver. P. W. 16 gave reasons for his conclusions. On the completion of the investiga--petition the appellant and the other accused persons were put on trial and the appellant and Mohammad Ashraf alone were found guilty and convicted.
8. The appellant and his co-accused denied their guilt. The appellant and Mohammad Ashraf admitted that the samples of their fingers, thumb and palm impressions were taken by Head Constable Izhar Hussain, P. W.
9. Although the prosecution relied upon the testimony of P. W. Approver Mohammad Aslam, P. W. 8, Kaloo Tracker and P. W. 16, Mohammad Aqeel, Finger Print Expert and the aforesaid recoveries in support of its case, the learned Sessions Judge -placed no reliance on the testimony of the approver and the Tracker and upon the evidence of the witnesses who had witnessed the recoveries of the various articles. This view was not disputed before the High Court by the learned.
10. Advocate appearing for the State, and the learned Single Judge of the High Court saw no reason to disagree with the learned Sessions Judge as regards the latter's appreciation of the evidence. The appellant Mohammad Ashraf was convicted by the learned Sessions Judge solely upon the testimony of. P. W. 16, Sub-Inspector Mohammad Aqeel. The learned Single Judge of the High Court also relied upon the evidence of P. W. 16 and maintained the conviction of the appellant and his co-convict Mohammad Ashraf on both the charges. The appellant however, alone obtained leave to appeal.
11. Mr. Sultan Ahmad, learned Advocate appearing on behalf of the appellant has contended, firstly that the evidence of the finger impressions are not reliable and .Secondly, that even if such evidence be accepted, they do not prove the charge of murder. It may prove the charge under section 458, P. P. C. Only.
12. Criticising the reliability of the evidence regarding the finger and palm impressions, the following points have been urged before us :
(i) Although P. W. Rab Nawaz had been specially called for the purpose lie did not photograph the impressions on the articles in question at .The factory.
(ii) Why the aforesaid impressions were not got photograph--ed by P. W. 26, Khair Din, photographer, who visited the spot and photographed certain foot prints there?
(iii) In the facts and circumstances of the case, particularly Laving regard to the considerable time that elapsed between the late the articles were seized and the date on which they were photographed and the date on which the photographs were compared with the sample impressions of the accused persons and the date on which the report of the comparison was sent, the possibility of tampering with the impressions in question cannot be excluded.
13. The evidence in regard to the linger and palm impressions of the appellant are furnished by P. Ws.
14. Rab Nawaz, Sub-Inspector Mian Sultan Asghar, and Sub-Inspector Mohammad Aqeel.
15. P. W. 12, Rab Nawaz, Finger Print Expert, Finger Print Bureau, Lahore arrived at the spot on 7-1-1963 at 3 p.m. He discovered impressions of palm and fingers on the broken Cash Box, Exh. P. 23, and linger impressions on the iron strip, Exit. P. 24, fixed on the broken door of an iron almirah, and on the wooden table drawer, Exh. P.
25. These three articles were made into two parcels, and they were sealed in presence of P. W. Rab Nawaz and received by the Police on the same day at about 9 p.m.
16. On 10-1-1953, P. W. 1 Foot Constable Murad A.I received live sealed parcels from the Muharrir, City Police Station, Gujranwala and delivered two sealed parcals in the office of Finger Print Bureau, Lahore. P. W. Rab Nawaz says, that he checked the sealed parcels and found the seals intact. He opened the parcels and found the linger marks on the article intact and not tampered with. He took photographs of Exits. P. 2 3 to P. 25 and landed over the photographs Exhs. P. 33 to P. 43 to the Officer-in-Charge on 12-1-1963. He also made photographic enlargements, inter alia, of the sample linger and left palm impressions of the appellant. The witness has stated that he did not take photographs, Exits. P. 33 to P. 43 at Lahore as necessary arrangements for light could not be made at Gujranwala. In this connection he has stated thus: "This is correct that P. 23 to P. 25 were removes from the rooms and by that time it had become dark. My camera was got equipped with flash light arrangements. Nor I brought separate flash light kit from Lahore as it was not available. Flash light kit could be procured locally from Gujranwala for the purpose but I did not do so as some times the equipment not found satisfactory and is not found to be in time with the camera exposure. At the time I reached Climax Factory the local police was there. Flash light kits arc in the laboratory but at that time they were not available. I did not send for tile bash light movable kit from the laboratory because I thought better photographs would be taken in the well-equipped laboratory.--- P. W. 16, Mohammad Aqeel, Sub-Inspector, Expert Finger Print Bureau, Lahore found the photographed impression marked as `G' on P. 38, identical with the left ring finger impression of the appellant, marked as G/1/P.38/BBB-1 on his sample paper Exh. P. 38/BBB. He also found the photographed impression marked as `J' and `L' on photograph P. 39 identical with the left hand palm impression of the appellant. These statements have gone unchallenged. He made comparison on 10-4-1963 and the report was dispatched to the S. P., Gujranwala on 27-4-1963.
17. It is quite clear from the evidence discussed above that the evidence in regard to the finger and palm impressions of the appellant are reliable and they have been rightly accepted as such by both the Courts. P. W. Rab Nawaz has given a reasonable explanation as to why he could not photograph the impressions on the articles in question at the factory. His unchallenged evidence is that he checked up the sealed parcels containing the articles with the impressions on them and found the seals on the parcels intact and the finger marks upon the articles contained in the said parcels intact and not tampered with. P. W. 26, Khair Din, a Press Photographer is not a Finger Print Expert and he was apparently asked to photograph the foot-marks only. It was, therefore, not expected of him to look for the finger or palm impressions nor was he competent to do so. The evidence of P. W. 16, Mohammad Aqeel, Expert, Finger Print Bureau, Lahore, that the impressions in question are identical with the left ring finger and the left palm impressions of the appellant have not been challenged. He has stated the date on which he had made the comparison and the date on which he sent his report to the Superintendent of Police, Gujranwala. P. W. 21, S. H. O. Mian Sultan Asghar has denied the suggestion that as the impressions on the articles contained in the parcels sent to the Finger Print Bureau were not clear, fresh impressions were taken from the accused on those articles after they had been arrested and that those articles, were again sent to the Expert, Finger Print Bureau on the 17th or 18th of February 1963. It is significant to note here that this suggestion was never put to the Expert, Finger Print Bureau, Lahore.
18. We accordingly think that there was no reasonable ground to reject the evidence in regard to the finger and palm impressions of the appellant. In view of their evidence the High Court was right in finding that the appellant was one of the persons who visited the Climax Factory on the night of the occurrence in course of which theft was committed there.
19. The further inference made by the High Court that the appellant was one of the persons who participated in the murder of the deceased Chowkidar is, however, not warranted by the evidence: Upon the evidence, particularly in the absence of any motive for the murder, the main object of the intruders appears to be to commit theft. As to how and under what circumstances the Chowkidar was killed remains a mystery, in view of the refusal of both the Courts to rely upon the evidence of the approver. In the absence of any other evidence, it is not unlikely that the that of the deceased Chowkidar was the solitary act of a particular intruder or some intruders not necessarily including the appellant. 1 he evidence that has been accepted by the Courts do not throw any light as to who this intruder is. The appellant, therefore, could not have been convicted on the charge of murder. If the evidence in regard to the house-breaking by night be accept--ed, and there is no reason why it should not be accepted, the charge under section 458 of the Pakistan Penal Code against the appellant is well established. Having regard to the circumstances in which the appellant and his companions committed house---trespass, there can be no doubt that it was a lurking house--- trespass, and that the trespass was made after having made preparations in the manner mentioned in section 458, P. P. C.
20. We, accordingly, allow the appeal partially, set aside the conviction of the appellant under section 302 read with section 3-4 of the Pakistan Penal Code but maintain his conviction and sentence under section 458 of the Pakistan Penal Code. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.