ABDUL HAYEE KURESHI, J.-This appeal under section 417, Cr. P. C. Has been filed by the State to challenge a Judgment of the Sessions Judge, Quetta, dated 16-7-1971, whereby the respondent was acquitted. The respondent was originally tried on a charge under section 13(e) of the West Pakistan Arms Ordinance, 1965, by the Extra-Assistant Commissioner and First Class Magistrate, Quetta and sentenced to pay a fine of Rs. 200 or to suffer R. I. For two months in default of payment. The respondent had filed an appeal before the Sessions Judge which was allowed and he was acquitted.
2. Briefly stated the facts of the prosecution case are that the respondent was arrested by S. I. P.
Abdul Ghani of Goal Mandi Police Station, Quetta on a charge under section 307, P. P. C. While the respondent was in custody in connection with the investigation of that case, he made a statement before the Police Officer. By this statement the respondent volunteered to produce a knife which was weapon of offence in the case under section 307, P. P. C. From a wooden box lying in the house of his brother Muhammad Hussain. Pursuant to such statement, the respondent led the police party consisting S. I. P. Abdul Ghani and mashirs Manzoor Ahmed (P. W. 1) and A.I Ahmed (P. W. 2) to the house of his brother Muhammad Hussain and produced a knife having a blade of 5 --from a wooden box lying in the verandah of the house of Muhammad Hussain. The knife was secured under a mashirnama (Exh. P/A). All this happened on 29th August 1970, but the first information report (Exh. P/D) was not registered until 1st September 1970, at 6-45 p.m. After completion of investigation the respondent was sent up to stand his trial on the charge of being in possession of an unlicensed arm and the trial resulted in his conviction. At the trial the prosecution, examined S. I.
P. Abdul Ghani and mashirs Manzoor Ahmed and A.I Ahmed. Besides these witnesses, the Court examined A. S. I. Behraln Khan, who registered the first information report. In his statement under section 342, Cr. P. C. The respondent denied the allegation of having made an incriminating statement before the police or having produced a knife. He however, admitted that on the date of recovery viz. 29th August 1970, he was in the custody of the police. The respondent examined defence witnesses namely, Abdullay Khan (D. W. 1) and Muhammad Hussain (D. W. 2). Both these witnesses stated that the house of Muhammad Hussain consisted of two rooms and did not have a verandah at all. Besides this, the two defence witnesses had stated that the respondent did not live in the house from where the knife was alleged to have been recovered.
The trial Court believed the prosecution witnesses in regard to the recovery of the knife and while discussing the evidence of the defence witnesses relied on an inspection that the Magistrate had done in regard to the house having a verandah. It appears that since two defence witnesses had clearly stated the house of Muhammad Hussain from where the knife was recovered had no verandah at all, the Magistrate had visited the scene and came to the conclusion that the house had a verandah at sometime but fresh mud plastering had been made in order to convert the verandah into a. Room. However, it seems that no inspection note was prepared and in any case, no such document has been brought on the record. In such circumstance, the observations of the Trying Magistrate with regard to conversion of verandah into a room have to be overlooked in view of the provisions of section 539-B, Cr. P. C. I will however, advert to this aspect of the case in a latter part of this judgment. With regard to the evidence of the defence witnesses the learned Magistrate expressed that they have not been able to "dislodge the deposition" of the prosecution witnesses. In my view what is meant by dislodging of deposition according to the Magistrate may mean that the defence witnesses have not satisfactorily rebutted the allegations of the prosecution.
Against the conviction awarded by the Magistrate the respondent filed an appeal which was heard by the Sessions Judge, Quetta. The learned Sessions Judge came to the conclusion that the two mashirs Manzoor Ahmed and A.I Ahmed were not independent and impartial witnesses. The learned Sessions Judge was further of the view that the statement made by the respondent to the police before the production of the knife was inadmissible. On that view of the matter, and coupled with the established circumstance that knife was not recovered from the house of the respondent or from a place under his independent control or possession, be held the case against the respondent to be doubtful and set aside the conviction.
3. The learned Advocate-General who has appeared before us in support of the appeal has mainly canvassed a point that the Sessions Judge acted wrongly by omitting out of consideration the statement made by the respondent to the police. He has relied on the provisions of section 27 of the Evidence Act. The respondent was in custody of the Police Officer on 29th August 1970. The prosecution story is that while in such custody the respondent had made a statement substantially in the following terms; "The knife has been concealed by me in the wooden box lying in the verandah of the house of Muhammad Hussain and I can produce the same." .
Since the actual statement was not recorded by the Police Officer at the time such statement vas made, the evidence in regard to such statement is oral. Manzoor Ahmed (P. W. 1), stated that the respondent stated that he had concealed the knife in the house of his brother Muhammad Hussain and in like terms is the deposition of P. W. A.I Ahmed and the police officer Abdul Ghani. But in the mashirnamz of recovery it was stated that the accused made a statement that the knife was lying in a wooden box adjacent to the house of Muhammad Hussain. It will thus be seen that the statement with regard to the place where the knife had been kept is different as given in the mashirnama than what was stated by the witnesses.
The learned Advocate-General has however, attacked the judgment of the Sessions Judge mainly on the ground that the judgment has omitted consideration of the entire statement in violation of section 27 of the Evidence Act. The learned Advocate-General has stated that the statement of the respondent relates to two facts :
(i) That the knife was lying at a particular place, and (ii) That the respondent had kept it at that place.
He has persuaded us to hold that both parts of this statement are admissible in terms of section 27 of the Evidence Act. On our pointing out to the learned Advocate-General that in the circumstances of .The present case, where the conviction awarded is only under section 13(d) of the Arms Ordinance, the admission of the evidence to the effect that the accused had himself kept or concealed the knife at the place from where it was recovered would amount to a full confession because under section 13(d) of the Arms Ordinance all that the prosecution has to prove is that a person was in possession of an unlicensed arm and in case we admit the entire statement including the statement to the effect that the accused had concealed the unlicensed arm we would in fact be admitting a confession made by an accused to the police because a person cannot possibly conceal an object unless he is in possession of it, the learned Advocate-General stated that section 27 covered the case.
4. At this stage it would be necessary to consider the scope of section 27 p of the Evidence Act. This section reads as follows;---- "Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of police officer, so much of such information, whether it amounts to a confession or not, as related distinctly to the fact thereby discovered, may be proved."
This section starts with a proviso bears relation to sections 25 and 26 of the Evidence Act. Under section 25 no confession made to a police officer can be proved against an accused person.
Moreover since section 27 is in a nature of a proviso it has to be construed very strictly and one has to guard against giving such effect to the proviso as may render the main provisions in sections 25 and 26 nugatory and redundant. The accused was being tried for possession of an unlicensed arm and if the entire statement which, as stated above can be broken into two parts, the one relating to concealment of the unlicensed arm by the accused and the second in regard to knowledge of the accused that- the unlicensed arm was lying at a particular place, the admission of the first portion with regard to the concealment would amount to an admission of a full and total confession made by the accused before police. By taking such a view the provisions of section 25 of the Evidence Act will be rendered meaningless. However, the 1earncd Advocate-General has invited pus attention to the clause "so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved". His argument is that even though the statement may amount to a confession of the crime in entirety, the same will be admissible under section 27. We have not been persuaded by this argument because if we admit the statement to the effect that the accused concealed the knife we will in effect be allowing a statement in spite of its being a full confession of the crimes because a person cannot possibly conceal an object unless he is in possession, of the same.
5. Section 27 has come up for consideration before the Judicial Committee in the case of Pulukuri Kottaya v. Emperor (AIR1947PC67). In this case the scope of section 27 of the Evidence Act was examined by the Judicial Committee to find the correct import of the words "Fact discovered". In the view of the Judicial Committee the words "Fact discovered" are not synonymous or equivalent to the object produced. Sir, John Beaumont, who wrote the judgment in that case observed as follows :----- "Section 27, which is not artistically worded, provides an exception to the prohibition imposed by the preceding section, and enables certain statements made by a person in police custody to be proved. The condition necessary to bring the section into operation is that discovery of a fact in consequence of information received from a person accused of any offence in the custody of a Police Officer must be deposed to, and thereupon so much of the information as relates distinctly to the fact thereby discovered may be proved."
Further the learned Judge while expressing the view of the Court observed as follows;--- "In their Lordships' view it is fallacious to treat the `fact discovered' within the section as equivalent to the object produced; the fact dis--covered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that `I will produce a knife concealed in the roof of my house' does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added `with which I stabbed A' these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
Sir John Beaumont illustrated the case of a statement to the effect that the accused stated that "I will produce a knife concealed in the roof of my house with which I stabbed A". He came to the conclusion that the latter part of the statement reading "with which I stabbed A" was inadmissible because it did not relate to the discovery of the knife in the house of the accused. It would thus seem that section 27 is to be construed strictly so that it admits only such facts as relate distinctly to the fact discovered and nothing more. In most cases the fact discovered by the Police in pursuance of such statement is fact showing that the accused had knowledge about the place where an incriminating article has been found. The meaning of "fact discovered" cannot be stretched to such statements which go to show that an accused person had any higher concern with regard to the object discovered.
The next case requiring consideration in the same context is also a case from Bombay High Court and this judgment was also written by Beaumont, C. J. (as he then was). In that case scope of section 27 of the Evidence Act had been considered. The learned Judge illustrated the position by casting a sentence in the following terms; "There was a dacoity committed at such and such a place on such and such date; I took part in it ; I received certain property, as my share; and my share of the property. Is buried at a place which I will show you."
The above sentence is a composite sentence and Beaumont, C. J. Came to the conclusion that the last portion of the sentence dealing with a place where the property is buried is admissible under section 27 and the remaining statements are not admissible. The reason is very clear because the object found was a property and the fact discovered was the knowledge of the accused in regard to the property lying at a particular place.
The scope of section 27 actually admits the minimum of an incriminating statement and knowledge to the extent as relates to the discovery of a fact and not the history of the object found.
In the same case Beaumont, C. J. Has construed the necessity for a Judge to dissect the statement and to find out which portion of the statement is admissible. In laying that stress the learned Judge has observed as follows;---- "The police officer to whom that statement is made is not at liberty himself to dissect it, and give evidence of part of it only. He can only state the fact of what information was given to him. But it seems to me that when the Judge gets the evidence of that information, he must, before he records it as evidence or leaves it to the jury divide the sentence into what are really its component parts, and only admit part which has led to the discovery of the particular fact, via. The hidden property. I think the Judge must have regard to the fact, that the information, expressed as it is in a single sentence, really involves first an admission that there was a dacoity, secondly, an admission that the accused took part in it, thirdly, an admission that he got part of the property, and fourthly, a statement as to where the property is. The first three parts of the dissected sentence are not admissible in evidence but the Fourth part is."
The next case on the point is Full Bench judgment in the case of Sukhan v. Emperor (AIR 1929 Lab.
344). This is a Full Bench judgment from the Lahore High Court. In this case Shadi Lal, C. J., who wrote the leading judgment examined the scope of section 27. He came to the conclusion that the statement or information must be such as proves discovery of a fact and further that it must distinctly relate or have reference to or connect the statement as the fact discovered. At page 348 of the said judgment the conclusions have been summarized in the following words; "These conditions, when combined lead us to the conclusion that only that portion of the information is provable which was the immediate or proximate cause of the discovery of the fact.
Anything, which is not connected with the fact as its cause, or is connected with it, not as its immediate or direct cause, but as its remote cause, does not come within the ambit of the section and should be excluded."
It would thus appear that such information or statement' as -is not connected with the fact by way of immediate or direct cause should be excluded. The rationale of the decision is also to the effect that such portion of the statement will be admissible as relates distinctly to the fact discovered rather than the object recovered. I may also briefly refer to a Division Bench judgment of the Sind Chief Court in .The case of Khan. v. Crown (PLD 1955 Sind 65). This was a case of dacoity and in the mashirnanaa of recovery a confessional statement of the accused had been incorporated and such mashirnama was received in evidence. The learned Judge of the Sind Chief Court held that the mashirnama containing a statement that the appellant had admitted the commission of the crime would render the mashirnama inadmissible. It would thus seem that the scope of section 27 was limited to the extent that a confession of a crime could not be held admissible.
The words "whether it amounts to a confession or not" as appearing in section 27 of the Evidence Act do not imply that a confession made by an accused person while in custody of a police officer becomes admissible. Such an interpretation is not possible in view of a total ban on the reception of confessions made by an accused person to the police under section 25 of the Evidence Act. In my humble view the wording of section 27 is highly complex. It could not be the intention of the authors of the Law to admit, in evidence the confessional statements. Sarkar in his book "On Evidence" has considered the position as emerging from various decisions, and expressed as follows;---- "The section is difficult of application and this is evidenced by the numerous inharmonious decisions bearing upon its interpretation. It would appear that Courts have on many occasions been led to admit all statements made by the accused whenever there was some discovery of facts. But the limitations laid down in this section (ante, p. 266) should always be borne in mind and the conditions preparatory to admission must be examined with scrutiny before ruling in favour of wholesale admission."
"The phrase `whether it amounts to a confession or not' is in one sense unfortunate and somewhat misleading, as it may seem to favour the idea of a wider interpretation and it may be logically argued that it also includes a confession involving direct acknowledgement of guilt or any incriminating statement suggesting participation in the crime. The object of the section, the ground on which admissibility is based and its use, and the safeguard provided in sections 25, 26, preclude the idea that Legislature ever intended to admit statements to the police containing an actual confession of crime. This lax interpretation would at once nullify the wholesome provisions .In sections 25 and 26 and render them nugatory. It would offer a strong temptation to the police to drag in such statements along with the information leading to the discovery of facts."
On a careful consideration of the principles of law I am of the view' that in' the present case the statement made by the respondent that he had concealed the knife is .Not admissible because the same is a total con--fession for the simple reason that he could not conceal an object without possessing it and by admitting such a statement, a confession in its totality will be admitted. The result is that the statement of the respondent is' only admissible to the extent that he would produce the knife before the police.
6. Coming to the prosecution evidence I find that the two mashirs have admitted their friendship with Ejaz Ahmad, who was the complainant in the case under section 307, P. P. C. The learned Sessions Judge came to the conclusion that these two witnesses were not independent. Such a conclusion could be reached in the facts of the case and no fault can be found with such appreciation of the evidence. What is more that the respon--dent in not living in the house from where the knife was recovered. There is also discrepancy in regard to the statement made by the accused (res--pondent) as to the place froth where the knife was recovered. While the prosecution case is that the knife was recovered from a box lying in the verandah, .The defence witnesses have given evidence that there was no verandah in the house of Muhammad Hussain. While dealing with the acquittal appeals, the High Courts have been very slow to set aside the acquittals if the findings are based on evidence.
7. Since the evidence was very clear in regard to the place from where the knife was recovered the Trying Magistrate had gone and inspected the scene of offence. He had power to inspect the scene under --section 539-B, Cr. P. C. But the same provision has also saddled some duties.. Section 539- B, Cr. P. C. Reads as follows `539-.B.-(1) Any Judge or Magistrate may at any stage of any inquiry, trial or other proceeding, after due notice to the parties, visit and inspect any place in which an offence is alleged to have been committed, or any other place which it is in his opinion necessary to view for the purpose of properly appreciating , the evidence given at such inquiry or trial, and shall without unnecessary delay record a memorandum of any relevant facts observed at such inspection.
(2) Such memorandum shall form part of the record of the case. If the Public Prosecutor, complainant or accused so desires a copy of the memorandum shall be furnished to him free of cost; Provided that, in the case of a trial by jury or with, the aid of assessors, the Judge shall not act under this section unless such jury or assessors are also allowed a view under section 293."
It will appear that a Magistrate can inspect a place only for the purposes of properly appreciating the evidence given at the trial. His observations do not form evidence. In the present case it seems that the Magistrate has freely used his observations for the purposes of determining the question whether the house had a verandah or not. Such use of section 539-B, Cr. P. C. Is not warranted.
What is more that the Magistrate has to record memorandum of the relevant facts observed at such inspection. In the present case no such memorandum appears to have been prepared and in any case the same has not been brought on the record. There is therefore, x flagrant violation of the terms of section 539-B, Cr. P. C. And such observa--tions in the judgment of the trial Court as are based on the inspection made by the Magistrate have got to be overlooked.
8. There is still another aspect of the case which deserves considera--petition. The knife was recovered on 29th August 1970, but no report was lodged until 1st September 1970. The F. I. R. Has been delayed by two days and this further weakens the case of the prosecution because such delay is unexplained. According op the first information report the recovery was made on 29th August 1970, at 6-45 p.m. In the city of Quetta and there is hardly any justification for such delay in the lodging of the report.
9. On a consideration of all the facts and circumstances of this case I am of the view that the acquittal appeal must fail. This appeal is dismissed.
FAKHRUDDIN G. EBRAHIM, J.-I agree.