P L D 1969 Dacca 504 (PLP)

SALAHUDDIN AHMED, J.‑The Reference and the appeal have been heard together and they are now being disposed of by one judgment. This is a Reference under section 374 of the Criminal Procedure Code made by the Additional Sessions Judge, Bakerganj for confirmation of the sentence of death passed upon Rattan Shikder, the condemned‑prisoner under section 396 of the Pakistan Penal Code. Criminal Appeal No. 536 of 1967 is an appeal by all the three persons under section 396 of the Pakistan Penal Code including the condemned‑prisoner. It may be mentioned at the outset that the case has furnished a rate example of courage, follow‑feeling and good neighbourliness where no less than three Muslims lost their lives in either going to the rescue of their neighbour, a member of the minority community or in pursuing the dacoits after the commission of the dacoity. The prosecution story as disclosed in the evidence may be stated as follows. The dacoity in question was committed in the house of P. W. 1 Benode Behari Shaha, a member of the minority community of village Kabai within the Police Station and District of Bakerganj. Benode lived with his family in the west bhiti but of a homestead wherein also lived other families in different huts the hut of Benode consists of a salgor (main hut) in the middle with verandahs to its adjacent east and west. The verandahs are again divided into two parts, namely, the closed part wherein the inmates lived and the open part without any fencing. On the date of occurrence, namely, 14‑10‑55 corresponding to the night following the 26th Aswin, 1372 B. S. P. W. 1 Benode aged about 48 years slept in the main but with his wife P. W. 3 Sarajubala Shaha and his infant daughter while his eldest son P. W. 24, Bir Bhadra Shaha and P. W. 4 Kalpana Rani, wife of P. W. 24. slept with the two minor sons of Benode in the closed verandah to the adjacent east of the main hut. The eastern door of the eastern enclosed verandah was closed with " wooden bolt but the communicating door between it and the main but was not bolted though shut. In the closed verandah to the adjacent west of the main but slept P. W . 2 Renu Bala Shaha (wife of Nagendra Nath Shaha, a brother of P.W. Benode) with her minor children. Her husband was then away from home. There were two burning hurricane lanterns in the: west bhiti hut, one in the main room and the other on the top of a small almirah in the enclosed adjacent western: verandah occupied by P. W. 2 and her minor children. It. was a moonlit night being next day of the full moon. At about. 1 o'clock in the early hours of the morning the inmates of the hut woke up having heard sound of kicking on the outer door of the eastern verandah. Soon they noticed that six persons entered the hut from the east after having broken bolt of the outer door of the eastern verandah. The dacoits went to the main room occupied by Benode and his family and assaulted Benode with a wooden roller and demanded money and valuables from him. One of the dacoits tied him with a napkin and another, who was armed with a gun, threatened Benode into silence. Benode's wife P. W. 3 Sarajubala untied the bunch" of keys from her sari and made it over to the dacoits who opened the almirah and took away cash amounting to Rs. 2,

20. They also got upon the loft and broke two trunks and removed gold ornaments and clothes. Three dacoits also entered the western verandah occupied by P. W. 2 Renu Bala and ransacked the room and snatched away some ornaments from the neck, ears and nose of P. W. 2 Renu Bala. Both these witnesses recognised two of the dacoits in the light of the hurricane lanterns burning in their respective rooms and later identified one of them namely, Rattan. Shikder (the condemned‑prisoner as the dacoit) who was armed with a gun, and the other namely, Moslem Gazi, as the dacoit who tied P. W. Benode with a napkin, and snatched away the ornaments from the person of P. W. 2 Renu Bala. The total number of the dacoits who raided Benode's but were stated to be 10 or 11 in number including some who were noticed outside the hut. The alarm made by, the inmates of the house attracted the attention of the neighbours, and P. W. 6 Lakhmi Kanta Shaha, a resident of the same homestead went out and informed the villagers about the dacoity. The villagers hurried to the house of Benode and although P. W. Benode was forced by dacoit Rattan to shout out that the dacoits were armed with a gun and therefore, the villagers should not approach his house, one of the villagers,, namely, Azhar Ali Akon undaunted entered the homestead of Benode. A dacoit shouted from outside that people had come whereupon Rattan (the condemned‑prisoner) went out to the eastern open verandah and fired his gun hitting the said Azhar Ali Akon on the chest and he fell down dead in Benode's courtyard. At the firing of the gun the villagers fell back and the dacoits fled by the eastern door of Benode's house carrying with them the stolen articles including cash, gold ornaments, clothes and a transistor. P. W. Benode, his neighbours and the villagers raised a hue and cry and pursued the dacoits. The cries attracted the attention of the people of another village, namely, Shonakanda and they too, assembled and opposed the advance of the dacoits near the house of one Rajeswar Sit. The condemned‑prisoner in course of retreat first opened a blank fire to scare away the pursuers and there after fired his gun once again hitting one Abdur Razzaque of Mechuakhali who fell down dead. The dacoits then proceeded to the south followed by the pursuers and when they arrived near the bridge of a khal, some people from the other side of the bridge opposed the advance of the dacoits whereupon one of the dacoits gave a ramdao blow which hit one Kamal of Shonakanda. When the dacoits had crossed the bridge and arrived near the `bhita' of one Golap Khan, one of them dealt a leja blow on one Abdul Hakim causing bleeding injuries to him. In the meantime the dacoits were encircled by the villagers and the condemned‑prisoner once again fired his gun and hit Haider Ali Karikar of Sonakanda who fell down dead. The dacoits thus reached village Afalkathi situated at a distance of about three miles from the place of occurrence and hid themselves in the paddy field inside the standing paddy. The pursuers thereafter gave up the chase and returned home. Early in the morning P. W. 9 Abul Hashem Khan aged about thirty years, " member of Kabai Union Council went for a wash in the Lakshmipasha river west of his house situated at a distance of half a mile from the house of P. W. Benode, and saw Rattan (the condemned‑prisoner) by the south side of the house of the witness going towards east with a gun in hand. This aroused the suspicion of P. W. 9 and he collected some people and searched for Rattan and finally caught him in the paddy field of one Amjad. Rattan was found wearing a khaki pant and a lungi underneath it and a discoloured shirt. The shirt bore the name of Rattan in Bengali inscription. The gun, however, was not found with him. Rattan was taken to the house of P. W. Benode where some of the witnesses for prosecution identified Rattan as the dacoit armed with a gun who had shot Azhar Ali Akon to death in the courtyard of Benode. Rattan admitted in presence of the witnesses that he had committed the dacoity and had fired a gun. He further offered to produce the gun and the stolen articles before the Police. In the meantime P. W. Benode had gone to lodge a First Information Report at Bakerganj Police Station which is at a. distance of thirteen miles from his house and he lodged the First Information Report on the same day, namely, 14‑10‑65 at 9‑30 hours. Sub‑Inspector P. W. 27 Sk. Ishaque Ali arrived at the place of occurrence in the afternoon at 3 o'clock and took over the custody of Rattan and seized the blood‑stained clothes found upon the dead bodies and held inquest upon the three dead bodies of Haider Ali Karikar, Azhar Ali Akon and Abdur Razzaque. The Officer‑in Charge of the Police Station P. W. 43 Abdul Khaleque arrived at the place of occurrence on the same day at 11 p.m. and took over the investigation of the case and the custody of Rattan Shikder from P. W.

27. Rattan made a statement to P. W. Abdul Khaleque which led to the recovery of one S. B.B.L. gun Exh. 16 along with one fired cartridge case inside its chamber from inside the kewa bush of the deserted `bhita' of one Altaf Mia and of the stolen ornaments wrapped up in a handkerchief and kept concealed under a bamboo lump standing in the `bhita' (homestead) of Nuru Mia. These ornaments and some other stolen articles dropped by the dacoits and picked up later were later identified by the inmates of the house as belonging to them. Rattan was forwarded to the Magistrate at Barisal before whom the former made a judicial confession on the 15‑2‑

66. On the morning of the day of occurrence, that is, 14‑10‑65 at 8/9 a.m. appellant Wahab Ali Munshi was found washing his wearing `chaddar' (wrapper) alleged to contain blood stains in a kewa bush on the bank of Kadamtola river. This aroused the suspicion of P. W. 33 Bir Bhadra Mistry who happened to be fishing in the river at the time. The witness went and informed Ansar Commander of Muradia Union Council P. W. 34 Mozammel Haque and in consequence appellant Wahab Ali Munshi was arrested and later produced before the local Chairman P. W. 35 Mir Azhar Ali. The appellant admitted that he had committed dacoity in the previous night in the house of Benode Behari Shaha along with Rattan and others. It appears, however, that neither the said `chaddar' was seized nor was it sent for chemical examination. Some other persons were arrested in connection with the dacoity for being in possession of certain articles stolen from the house of P. W. Benode. The gun Exh. 16 was examined by an expert and it was found to be in serviceable condition. Appellant Moslem was arrested in another case and he was produced and shown arrested in the present case on 4‑1‑

66. A Test Identification parade was held on the 8‑7‑66 wherein some of the witnesses identified appellant Moslem Gazi as one of the dacoits who participated in the dacoity committed in the house P. W. Benode on the date of occurrence. On the 17‑12‑66 a charge‑sheet was submitted against the condemned‑prisoner and the other two appellants under section 396 of the Pakistan Penal Code. While against some others a charge‑sheet under section 412 of the Code was submitted. A preliminary enquiry having been held by a competent Magistrate, Rattan Shikder, Moslem Gazi and Wahab Ali Munshi were ‑sent up for trial before the Court of Sessions on a charge under section 396 of the Pakistan Penal Code and two other accused persons (since acquitted) were sent up for trial under section 412 of the Code. The accused persons have pleaded not guilty and have not taken up any particular line of defence. It appears from the cross‑examination of witnesses for prosecution, however, that the defence suggested that the accused persons had been wrongly and falsely identified by the witnesses inasmuch as no sufficient means of recognition was available at the time. The trial was held with the aid of four Assessors all of whom unanimously found all the three appellants guilty under sec tion 396 of the Pakistan Penal Code. Accepting the unanimous opinion of the Assessors the learned Additional Sessions Judge of Bakerganj convicted all the three appellants under section 396 of the Pakistan Penal Code and sentenced Rattan Shikder to death and the other two appellants, namely, Moslem Gazi and Wahab Ali Munshi to transportation for life. Before we proceed to discuss the evidence in the case it is convenient to mention certain salient features of the case. It has not been disputed that there was a dacoity committed in the house of P. W. 1 Benode on the date and at the time stated by the prosecution. It has also not been disputed that three persons met death at the hands of one of the dacoits who participated in the said dacoity. The dacoity took place in the house of a Hindu and the witnesses who have deposed in the case are Hindus as well as Muslims and they come from different villages. None of the witnesses knew the appellants before the occurrence. Although the commission of the dacoity has not been disputed it has been amply proved by unchallenged evidence furnished by the inmates of the house, namely, P. W. 1 Benode Behari Shaha, his sister‑in‑law P. W. 2, his wife P. W. 3. his son P. W. 24 Bir Bhadra Shaha and a resident of his homestead P. W. 6 Lakhmi Kanta Shaha and his neighbours P. W. 7 Abdul Wahed Howlader and P. W. 8 Mosharraf Hossain. Their evidence in respect of the dacoity have been further corroborated by the recovery of certain alamats including the broken bolt of the door of the verandah and the stolen articles mentioned above which have been sufficiently identified to be the properties stolen in course of the dacoity. There is another batch of witnesses, namely, the neighbours and villagers who had pursued the dacoits on hearing the alarm. Among these witnes ses are P. W. 16 Gagan Ali Mallik whose house is half a mile away from Benode's house and P. W. 17 Joynal Abedin Howlader, a member of the Union Council No. 7 Kobai within whose Unit P. W. Benode resided. All these witnesses corroborated the eye‑witnesses and fully supported the prosecution case in regard to the date, time and place of occurrence. Similarly there is the unchallenged evidence to prove that the aforesaid three persons died as a result of the action of one of the dacoits. The medical evidence furnished by P. W. 15 doctor A. K. M. Shamsul Islam, then a Sub‑Assistant Surgeon of Barisal Sadar Hospital, conclusively proved that each one of the three dead persons, namely, Azahar Ali Akon, Razzaq Gazi and Haider Ali Karikar received gun shot injuries on a vital part of their persons, namely, the chest and/or abdomen causing injuries which were ante‑mortem and homicidal in nature and which caused their death. We now come to the most important point of our enquiry, namely, the identity of the dacoit who participated in the dacoity caused the death of the said three persons or any of them. As regards the complicity of Rattan in the dacoity leading to the murder of the three persons it is the consistent evidence of the inmates of the hut, namely, P. Ws. 1, 2 and 3 that Rattan was one of the dacoits who participated in the dacoity with a gun in hand. The description of one of the dacoits has been given in the First Information Report by P. W. 1 as follows: "One had a white full shirt on the wearing with the sleeves rolled up. The dacoit, who had the gun in his hand was aged about 35 years, of medium complexion, slim stature and medium build. I did not see any beard and moustache in his face." The evidence of the eye‑witnesses of occurrence is that Rattan was wearing a khaki half pant and a shirt which P. W. 16 Gagan Ali Mallik described as "a whitish shirt by folding the sleeves". The shirt and pant of Rattan were seized from his person in the morning of the occurrence and they were identified by the witnesses to be the shirt and pant which they saw Rattan was wearing at the time of occurrence P. Ws. 1 and 2 who were the inmates of the but have categorically stated that they recognised Rattan in the light of the hurricane lanterns that were burning in their respective rooms. That the inmates of but were in the habit of keeping two hurricane lanterns burning every night have been sufficiently proved by reliable evidence. And it was natural that they did so for in each one of the two rooms where a lantern was kept burning slept minor children. The existence of the lanterns in the but of occurrence has hardly been challenged. Severe criticism, however, has been directed against the position of one such lantern at the time of occurrence. Mr. Azizuddin Ahmed appearing on behalf of the condemned‑prisoner has directed our attention to the First Information Report lodged by P. W.

1. Benode wherein it has been stated. "Before the dacoits had entered my but there were two burning hurricane lanterns in my eastern and western verandahs." Contrary to this statement P. W. Benode stated in his evidence at trial that there was a burning hurricane near the southern door of the main room (salgar), and when he was cross‑examined as to whether he stated this in the First Information Report he replied that he did so. P. W. 2 Renu Bala has not said anything about the presence of any hurricane in the main room. P. W. 3 wife of Benode merely stated that she saw the dacoits in the light of a burning hurricane without saying where the hurricane was. The seizure list appearing at page 88 of the paper book contains the following against item No. 8 of the Article seized; "One big and one small. `Bayezid' hurricane with chimney, oil, tape which were burning on the eastern and western verandah of the complainant's but at the time of dacoity‑found as produced by the complainant." P. W. 24 Bir Bhadra Shaha, son of P. W. Benode who was sleeping with his wife and two minor sons .of Benode in the eastern verandah of the but has stated that there were two burning lanterns in the rooms of his father and `Kukima' respectively meaning P. Ws. 1 and

2. This statement of the witness appears to have gone unchallenged. This witness also categorically stated that he did not see the dacoits when they passed through his room as there was no light in the room. On a consideration of the evidence in regard to the position of the two lanterns we think that there were in the but two lanterns burning, one in the western verandah which was occupied by P. W. 2 and her minor children, and the other in the salgar (main room) occupied by P. W. 1, his wife and their infant daughter. That being so it was not difficult for P. Ws. 1 and 2 to recognise the dacoits in the light of the lanterns burning in their rooms. P. W. 8 Mosharraf Hossain, son of deceased Azhar has stated that he found a man with a gun in hand in the eastern verandah of Benode and that man opened fire and killed the witness's :father. He has further stated that he saw the dacoits in moon light. The witness has identified Rattan as one of the said two dacoits. In cross‑examination the witness has stated that he saw dacoit at a distance of 8/10 cubits while he opened fire. The evidence of this witness has also gone unchallenged so far .as his recognition of Rattan is concerned. P. W. 16 Gagan Ali Mallik, a resident of another mouza Mechuakhali, was one of the pursuers and he has identified Rattan as the dacoit who fired a gun hitting Abdul Razzaq. This witness says that Rattan was wearing a whitish shirt by folding the sleeves and a khaki half pant on. He also says that he has seen Rattan fire another round killing Haider Ali Karikar. This witness immediately told the villagers that he saw the dacoit who murdered Abdur Razzaq and should be able to recognise him. That very morning he saw Rattan concealing himself in the paddy field of Amjad Ali. The recognition of Rattan by this witness, too, has not been challenged. P. W. 17 Joynal Abedin Howlader, a member of the Union Council and a resident of mouza Shonakanda also recognised Rattan in moonlight while pursuing the dacoits and he identified Rattan as one of the dacoits who fired a gun at Haider Ali Karikar. This evidence of recognition has not been challenged. P. W. 24, son of P. W. Benode has also stated that he ‑recognised Rattan in moon light as one of the dacoits who shot at and killed Razzaq. Although his recognition of Rattan was challenged in cross‑examination, he maintained that Rattan was the person who opened fire in course of the dacoity. P. W. 6 Lakhmi Kanta Shaha and P. W. 7 Abdul Wahed Howlader have also claimed recognition of Rattan as the dacoit who was armed with a gun and who fired at Azhar Ali Akon P. W. 6 has said that Rattan fired the shot from `Chota Hatina'; that is, the open verandah. However, inasmuch as the name of P. W. 6 was not mentioned in the First Information Report and both he and P. W. 7 did not tell the Investigating Officer that they might be able to recognise any dacoit we do not consider it safe to accept their evidence of recognition. The direct evidence of recognition have been corroborated by the fact that Rattan was seen with a gun in the early hours of the morning of occurrence by P. W. 9, a member of the Kabai Union Council, and shortly thereafter Rattan was arrested while hiding in a paddy field although the gun was then not found with him. The place where Rattan was found walking with a gun was only half a mile south of Benode's house. Mr. Azizuddin Ahmed has contended that it was highly improbable for a dacoit, who had shot at and killed no, less than three persons, to move back to the scene of his depredations, instead of funning away from it as far off as possible. This is a matter of speculation and it is difficult to say under what circumstances Rattan went back near the scene of the occurrence. The unchallenged evidence however, is that he was seen walking with a gun and was arrested at that spot. The gun was recovered on the next morning on the showing of Rattan. Furthermore Rattan produced a bundle containing ornaments which were identified to be those stolen by the dacoits from the house of Benode. The eye‑witnesses identified Rattan as the dacoit who was armed with a gun. All these amply support the eye‑witnesses regarding the complicity and guilt of Rattan. As we have already observed none of the witnesses knew the appellants before the occurrence and hardly any reason has been suggested to them as to why the witnesses will as well implicate the appellants including Rattan in a grave offence involving a death sentence. It was not put to any witness that there was no means of recognition, and that it was not possible for him to recognise any one of the dacoits. The evidence has clearly shown that there were sufficient means of recognition furnished by the light of the two lanterns to enable the re cognition of the dacoits by the inmates of the hut. There were other lights too, namely, light of the torch focussed by the dacoits and the brilliant light of the moon. To sum up there are the evidence of no less than six witnesses, namely, P. Ws. 1, 2, 8, 16, 17 and 24 who have identified Rattan as one of the dacoits who was armed with a gun. Three eye‑witnesses, namely, P. Ws. 1, 2 and 8 have deposed to the fact that Rattan shot dead Azahar Ali Akon_ Three witnesses, namely, P. Ws. 1, 16 and 24 have identified Rattan as the dacoit who shot and killed Abdur Razzaq,. There are again three witnesses, namely, N.Ws.1, 10 and 17 who have proved that Rattan shot dead Haider Ali. It may be mentioned here that so far as the first shot killing Azhar Ali Akon is concerned the witnesses saw from close quarters Rattan firing at a time when he was not inside the but was close to the courtyard standing on the open verandah on the east of the but of Benode. There was brilliant moon light all over and, there fore, there was no difficulty for the witnesses to recognise Rattan in the open. Mr. Azizuddin has contended that it appeared from the evidence that Rattan was proceeding to the house of some of his relation when he was caught on suspicion, and later on, the story of recognition and identification was woven round his head. Mr. Azizuddin has based his contention on the evidence of P. W. 9 Abul Hashem Khan the person who first saw Rattan in the early hours of the morning going with a gun in hand and later arrested him with the help of some persons. P. W. 9 has stated, "Khatun Haji's house is less than 1/4 mile from the place of arrest. Joynal, grand‑son of Khatun Haji is not the `behai' of accused Rattan. It is not a fact that accused was going towards that house." There is not an iota of evidence that Khatun Haji or his grandson Joynal is in any way related to Rattan. P. W. 17, a member the Union Council has said that Khatun Haji was the witness's father's father. It is curious that if there was any truth in the suggestion given to P. W. 9 why P. W. 17 was not asked as to whether Khatun Haji or his grand‑son Joynal Abedin was in any way, related to Rattan. Mr. Azizuddin Ahmed has also drawn our attention to the evidence of P. W. 1. "On return home I found accused Rattan has been brought to my house on arrest by Hashem Khan, Sader Gazi and many others. I told them that this accused had gun and committed dacoity in my house. They also brought a single barrelled gun along with accused Rattan." He has con tended that having seen Rattan under arrest with a grin everybody thought that Rattan was the dacoit armed with a gun and identified him as such. Obviously this statement of P. W. 1 is the result of some confusion. It has been proved by reliable evidence that P. W. 1 was not then present in his house when Rattan was first brought there inasmuch as the records show that P. W. I was at the Police Station thirteen miles away or was on way back home from the Police Station. The unchallenged evidence of P. Ws. 6, 7, R, 9 and 16 show that Rattan bad no gun with him when he was first arrested and taken to the house of P. W. Benode. It was only on the next day that Rattan led the police to a kewa bush and produced the gun kept concealed under the bush. We, therefore, do not think that there is any substance in this contention. Rattan has also made a judicial confession implicating himself in the said dacoity but not in the murder of the three persons. This confession was made about four months after the occurrence. The circumstances governing the confession do not appear to be free from suspicion. The order sheet and the records show that Rattan was seriously injured necessitating his confinement in the jail hospital and he was produced in Court in an ambulance car. It further appears that although Rattan proposed to confess as early as October 1965, each time he deferred making his confession on some ground or another until he finally made the confession, a cryptic one, on the 15‑2‑

66. The confession was, however, retracted on the 8‑11‑

66. In these circumstances we do not consider it safe to hold that the confession was a voluntary one. There is also the evidence that Rattan made an extra‑judicial confession before a number of witnesses. Such extra‑judicial confession also does not appear to be free from suspicion. Rattan was severely injured and the circumstances in which he was placed might have led to the extortion of his confession. We have considered the evidence carefully and we find that the complicity of Rattan in the dacoity as well as in the murders of the three persons in course of the dacoity have been amply proved by reliable evidence. The prosecution has thus succeeded in proving the charge under section 396 of the Pakistan Penal Code against him without any reasonable doubt and we, therefore, hold that he has been rightly convicted under section 396 of the Pakistan Penal Code. There remains the question of sentence of death passed upon Rattan, the condemned‑prisoner. We have given our anxious consideration to this question and have scrutinised the records to see whether anything favourable to the condemned- prisoner exists which might be taken into consideration for the purpose of commutation of sentence. We' admit we have been unable to find anything which can be stretched in favour of the condemned prisoner as an extenuating circumstance which may justify commutation of the sentence of death passed on him. Once the identity of Rattan is established as one of the dacoits who participated in the dacoity in the house of P. W. Benode on the date and at the time of occurrence and it is proved that he was armed with a gun, and he shot at and killed no less than three innocent persons, the only sentence that suggests itself is death. The condemned‑prisoner is indeed guilty of committing three diabolical murders and had not the slightest valid reason for doing so. In these circumstances we are left with no option but to confirm the sentence of death passed upon the condemned‑prisoner. As regards appellant Moslem, the two inmates of the house who recognised and identified him are P. Ws. 1 and

2. Three neighbours, namely, P. Ws. 6, 7 and 8 also have claimed to recognise Moslem and have identified him. So far as P. W. 2 is concerned, it appears that in Court she initially made a mistake in identifying Moslem as the person whom she saw with a gun. She, however, immediately corrected herself and pointed to Rattan as the dacoit whom, she saw with a gun. She stated in cross‑examination that accused Moslem kept guard on her sitting on her bed and she identified Moslem in the Test Identification Parade. P. W. 1 Benode has identified Moslem as, the dacoit who tied him with a napkin. Two other witnesses, namely, P. Ws. 6 and 7 also claimed to have recognised Moslem. But for the reason already stated while considering their evidence in connection with the case of Rattan we do not propose to rely upon their evidence. P. W. 8 has also claimed recognition of appellant Moslem in moon‑light. All the witnesses claimed to have recognised Moslem in the test identification parade held by a Magistrate and the Magistrate has corroborated them. There is, therefore, the evidence of three witnesses who have identified Moslem, namely, P. Ws. 1, 2 and

8. Mr. Daliluddin Ahmed who has appeared on behalf of this appellant has severely criticised the test identification parade in which Moslem was identified by the witnesses. He has drawn our attention to the fact that although Moslem was arrested on the 4‑1‑66, he was not put on the test identification parade until the 8‑7‑66 and in between these dates, Moslem was produced in Court on a number of occasions and the witnesses, therefore, had opportunity to mark and identify him. It further appears from the evidence that Moslem had some marks on his face. The Magistrate holding the parade has stated that he does not remember whether he put in the parade some persons bearing pox marks. In these circumstances Mr. Daliluddin Ahmed has vehemently challenged the value of the identification of Moslem in the said Parade. The contention prima facie appears to be not without substance. No reason has been suggested on behalf of the prosecution as to why there was such delay in holding the parade. It is, however, difficult to brush aside the evidence of P. Ws. 1 and 2 who came into very close contact with Moslem. It was not suggested to P. W. 2 Renu Bala or to P. W. 8 Mosharraf Hossain that Moslem was shown to any one of them at any time prior to the holding of the parade. P. W. 1 when cross‑examined on this point stated as follows: "It is not a fact the enemies of Moslem in collusion with the police influenced me to identify Moslem and accord ingly was shown to me before Test Identification Parade." In the absence of anything to show definitely that Moslem was shown to either of these two witnesses it is difficult to disbelieve their evidence in regard to the recognition and identity of Moslem as one of the dacoits who took part in the dacoity. Moslem appears to have taken a prominent part inside the but of occurrence. He not only tied P. W. 1 with a napkin but also beat him. He also kept guard upon P. W. 2 Renu Bala sitting on her bed. We, therefore, think that there is good evidence proving the complicity of Moslem in the dacoity. Lastly there remains the case of appellant Wahab Munshi. The case of this appellant rests solely upon only one circumstance, namely, that he was found sitting in a kewa bush on the bank .of a river and washing his `chaddar' in the water. It is alleged that the water turned read with washing. This `chaddar' alleged to contain blood‑stains was, however, never seized and it was never sent to a chemical examiner to ascertain the fact whether the `chaddar' had any human blood on it. The witnesses have also claimed that he made an extra judicial confession before them admitting his participation in the commission of the dacoity in the house of Benode along with certain other accused persons. This confession has been retracted and there is no evidence to corroborate the confession in material parti culars. The only circumstance which could be so used is hardly of any value in view of the circumstances mentioned above. We, therefore, hold that there is no evidence in support of the conviction of this appellant under section 396 of the Penal Code. In the result the appeal of Wahab Ali Munshi is allowed and he is acquitted of the charge under section 396 of the Pakistan Penal Code. We direct that the appellant be set at liberty forthwith if he is not wanted in connection with any other matter. We, however, accept the reference and dismiss the appeal of the condemned‑prisoner Rattao and appellant Moslem Gazi. We maintain their conviction and sentences passed under section 396 of the Pakistan Penal Code. We further confirm the sentence of death passed upon the condemned‑prisoner Rattan Shikder. Before we part with this case we should like to observe that the people of mouzas Kabai, Mechuakhali and Shonakanda within Police Station Bakerganj in the district of Bakerganj have showed extraordinary courage and good neighbourliness in either going to the help of a Hindu neighbour or pursuing the dacoits while retreating although one of the dacoits was armed with a gun and he was firing shots. Particular mention mast be made of the three deceased persons, namely, Azhar Ali Akon of Kabai, Abdur Razzaq of Mechuakhali and Haider Ali Karika of Shonakanda who were killed by a dacoit. Of these three, Azhar Ali Akon was the most outstanding man for he entered the homestead of Benode in utter disregard of the warning that the dacoits had a gun, and in the face of a grave peril to his life, and he was soon shot dead in Benode's courtyard. We feel that such acts of courage, devotion to duty and good neighbourliness should not go unrecognised. Let a copy of our judgment be sent to the Chief Secretary to the Government of East Pakistan. MAHMUD HOSAIN, J.‑I agree. S. A. H. Reference accepted. Appeal dismissed.