P (PLP)

MUHAMMAD JAN, J. Muhammad Haroon, aged 16/17 years and Muhammad Naeem, aged 17/18 years, were tried by the learned Sessions Judge, Gujranwala, and convicted under section 396, Pakistan Penal Code. Muhammad Yusuf and Haidar Hassan absconded and evidence was recorded against them under section 512 Criminal Procedure Code. Haroon was sentenced to trans portation for life and Muhammad Naeem to ten years' rigorous imprisonment. They have filed separate appeals which will be disposed of by this order. The accusation against them is that they, with the two absconders and Muhammad Rafi approver, murdered Allah Ditta, Chaukidar of Central Co‑operative Bank, Wazirabad on the night between 27th and 28th March 1949 and committed dacoity in the Bank. Haroon and Rafi, approver, had also, during the day, committed theft in the bank and removed some cash there from. The report relating to the occurrence was made by Syed Rashid Shah, Manager of the Bank, on 28th March 1949 at 9.15 a. m. It showed that the Bank was closed on 26th March 1949 and remained closed on 27th March as it was Sunday. Allah Ditta and Jiwan were employed as Ckaukidars and Karam Din as a peon. Muhamrnad Haroon, Eon of Abdul Majid blacksmith, was employed as a treasurer in the bank since about six months. Two keys of the safe in which the cash was kept remained. in the custody of Muhammad Haroon and the other two in the custody of the Manager. The key of the outer door of the bank remained in possession of the 'Chaukidar. The duplicate keys of the safe were inside the safe. The Manager lived in a room in the upper storey of the Bank building. He had gone to Lahore on 27th and returned at about 9 a.m. on the 28th March. He learnt from Jiwan Chaukidar, that the Bank had been broken into and the safe ransacked on the previous night. Allah Ditta Chaukidar was missing. Ire was, a little later, found lying murdered in the verandah of a sardi near the Veterinary Hospital close to the Bank. The Manager said that he was quite convinced that Muhammad Haroon, Treasurer, had committed this crime with the help of some others and gave a long list of the property stolen. The first 7 items of the list give details of the currency notes, which were stolen. Their total value came to Rs: 20,970‑8‑

6. Items Nos. 8 to 112 relate to the stolen ornaments. For example, item No. 8 mentions one nose ring of gold, a pair of gold, earings, weighing two tolas belonging to Nawazish Ali, son of Hadayat Shah. Item 12 reads as follows:‑" a pair of gold bangles, a pair of gold clip, a pair of gold, kanthas, and one gold tawiz, weighing 6 'tolas and 8 mashas, belonging to Allah Ditta, son of Allah Dad ". Similarly, all the other, items consist of one or more ornaments and the total weight of the gold stolen is about 800 tolas, worth about Rs. 80,000 these days. The ornaments had been pawned with the Bank by various people for about Rs. 36,

770. The report was recorded by Nawab Din, Muharrrur Head Constable (P. W. 11). The Sub‑Inspector Fakir Ahmed Shah had gone to the Headquarters, for giving evidence. The A. S. I. had gone to Kamoke for investigation, therefore, Muhammad Sharif .Head Constable (P. W. 35) went investigate the case accompanied‑ by Wali Muhammad, Muhammad Hassan, Manzur Beg and Abdul Latif, Constable. They went first to the sarai where Allah Ditta Chaukidar was stated in the report to be lying dead. Muhammad Sharif took some blood‑stained earth from a spot about 5 karams away from the verandah and and some blood‑stained bricks from the verandah other sarai. He sent the dead body in charge of. Abdul Latif, Constable for post‑mortem examination to the mortuary at Gujranwala. Dr. Zafar Ali Shah (P. W. 9) performed the Post‑mortem examination and found the following injuries on the deceased.

1. A large incised wound 6" X 2" on the right side of the neck cutting the muscles, neerves and arteries. The fifth vertebra was cut and the cord was exposed.

2. An oblique incised wound 13" X 8" bone deep on the chest between the nipples.

3. An oblique incised wound 2" X " going deep into the belly in the pit of the stomach.

4. A small incised wound " X 3" x " slightiy above injury No. 3.

5. An oblique incised wound on the right side of the chest 2 " below the right nipple going deep into the chest cavity.

6. An oblique incised wound 2" X 1" on the right side of the belly about 3" below injury No. 5.

7. An incised oblique wound 1" X " on the right side of the chest 4" below axilla.

8. An incised wound 3" X 1" on the outer side of the left elbow.

9. A transverse incised wound 3" X 1" bone deep on the front of the left hand below the index to ring fingers.

10. An incised wound " X 1/3" on the outer side of left thight. On internal examination the 4th, 8th, 9th and 10th ribs were cut. The right lung was punctured. It was bleeding and had collapsed. The liver was also punctured. Death, in the opinion of the doctor, was due to shock and haemorrhage and must have occured immediately after the injuries. The stomach was full of food. After sending the dead body to the mortuary, Muhammad Sharif, Head Constable, proceeded to the Bank. Rashid Shah, Manager and Muhammad Haroon, appellant, were there. After some inquiries from them he sent Muhammad Naeem for Muhammad Rafi. Rashid Shah produced a screw‑driver (Ex. P. 3) which had been left in the safe and the lock of the Bank (Ex. P. 5) which was found open. The Head Constable arrested Haroon, Naeem and Rafi. A key (Exh. P. 4). which fitted the lock of the Bank, was, recovered from the pocket of Rafi. Haroon and Rafi were sent with the Constables to the Police Station and the Head Constable started questioning Naeem. accused. He admitted that he had hidden a drum containing the stolen ornaments in a pond adjoining village Allahabad, about 200 yards towards the south of the Grand Trunk Road and not far from the restaurant kept by Muhammad Rafi. Naeem took the Head Constable Rashid Shah, Manager and some others to the pond and going into the water brought out the drum (Ex. P. 7). On being opened the drum was found to contain 73 sealed packages and 3 envelopes containing ornaments stolen from the Bank. Muham mad Shari took the drum and the ornaments to the Police Station and, after a short while, Saeed Ahmad (P. W. 23) arrived there with a khaki bag. It contained currency notes worth Rs. 9,036 and three sealed packages containing some ornaments. These were also taken into possession by the Head Constable. The bag was produced at about 5‑30 p. m. and at about 6 p. m. Faqir Ahmad Shah S. H. O. (P. W. 36) returned from Gujranwala. He found Muhammad Naeem, Muhammad Haroon and Muhammad Rafi under arrest in the Police Station and took over the investigation from Muhammad Sharif. Muhammad Haroon appellant told him that 'he had kept notes worth Rs. 10,000 in a suit case in his house and offered to hand them over to the Sub‑Inspector. He accordingly went with Haroon to his house where, taking some keys from an almirah Haroon opened the suit case (Ex. P. 8) and brought out a bundle of one hundred notes of the value of Rs. 100 each. The bundle as signed by the Sub‑Inspector as well as Mirza Altaf Ali and Fakhar Ullah who were present. On returning to the thana, the Sub‑Inspector questioned Muhammad Rafi who said that he had thrown the empty bottle of chloroform (Ex. P. 2) in a field and, taking the police there handed it over to them. Rashid Shah produced a bogus telegram which he had received from Lahore bearing the name of his brother Kabir Shah about 10 days before the occurrence. The. Sub‑Inspector detailed some persons to produce Muhammad Yusuf and Haidr Hassan and prepared two documents (Exhs. D. J. & K.) relating to their arrest ; but they had disappeared and could not be arrested. The documents were therefore, used to show them as absconders. They were known to the Sub‑Inspector and he gave their description in these documents. It was suggested that these were false documents prepared by the Sub‑Inspector in order to show that Muhammad Yusuf and Haider Hassan were arrested on 8th March. The Sub‑Inspector denied this suggestion and said that entries regarding absconders are made in red ink and they were so made in exhibit D. J. and K. More than a fortnight after the commencement of the investigation, i.e., on 14th April 1949, to be exact, a register from the Wazirabad High School was produced before this witness to show that Naeem was in the school on 17th March 1949 when he was alleged to have gone to Lahore to send the bogus telegram to Rashid Shah. 1 his register was given by the Sub‑Inspector to Head Constable Nawab Din with instruc tions to return it to the Head Master of the School. Nawab Din has deposed that the Head Master took it away from him. It is urged on behalf of the appellants that this register has been suppressed by the police. We can see no force in this suggestion because the register could show nothing more than what has been admitted by the 'Sub‑Inspector i. e., an entry to the effect that Muhammad Naeem attended the School at Wazirabad on 17th March 1.949. On behalf of the prosecution it is said that this register was not produced by the Head Master, though it was sent for, because it would have landed him into. difficulties. In any case, we axe not inclined to attach any importance to this register. Muhammad Ashraf, Inspector, C. I. A. (P. W. 37) took a cash memo from Muhammad Shafi Tulsi, a chemist, in pursuance of information given by Muhammad Rafi. It related to the sales of chloroform and is marked Exh. P. G. G. It Was suggested to the Inspector that he had tried to induce Haroon appellant, to become an approver and to give a false statement. He denied this and said that he had heard the full story of the crime from Muhammad Rafi approver, on 30th March 1949. On 5th April 1949, Muhammad Haroon appeared in the Court of Ch. Muhammad Azam, Magistrate 1st Class, and offered to make p confession. He was told that he was in the presence of a Magistrate and if he made a confession it may be used as evidence against him. He was further informed by the Magistrate that he was under no obligation to make any confession and was given half an hour to sit down and think over the matter. After half an hour he was asked whether lie still wished to make a confession and he had he did. He was then asked whether he was doing this voluntarily knowing that the confession may be used as evidence against him and he said he was. He was asked how long had he been in police custody. He said for 9 days. Had the police beaten him. He said ` No ' ; he‑ had no complaint against the police. He was told that, whether he made the confession or not, he would not be sent book to police custody and, therefore, had nothing to fear from the police. He said he knew that. He was then asked whether he had anything to say about the behaviour of the police towards him or about anything else; he replied that he had nothing to say. He was finally asked why was he making a confession to a Magistrate which he had been told was likely to be used as evidence against, him and his reply was as follows : During my life I have committed this first offence and I wish that I, confessing the reality, should receive my punishment and thereafter I should set right my future life. The Magistrate then proceeded to record his confession and this is the gist of what he said. About 15 or 20 days ago, Muhammad Rafi and he were sitting at Wazirabad Addah when they saw a big new car pass by. He said to Muhammad Rafi that there are people in the world who can possess such cars. Why were they not rich too? Rafi said that Haroon was rich enough and had lots of money in his hands. He replied that that was not his money and he could not use it. Rafi said that he could if he wished to. He asked how. Rafi said that it was easy if Haroon did the needful in the Bank and Rafi did it outside. A week or so later, they resumed this conversation and decided that a telegram should be sent to Rashid Shah, Manager of the Bank; from Lahore in the name of his brother Kabir Shah asking him to go to Lahore at once ; and, in his absence, they should rob the Bank. Accordingly, Rafi arranged with. Muhammad Naeem to send the telegram from Lahore. It was sent and received by Rashid Shah at about 2. 15 p. m. on 17th March 1949. He went to Lahore by the train which left Wazirabad at 2.30 p. m. Rafi was, however, called by the police that day and remained with them till late at night. Nothing could, therefore, be done. Three or four days later, they decided that Rashid Shah should be called out of his house on some pretence and chloroformed. Accordingly Ghulam Nasir (P. W, 19) was sent to call Rashid Shah at about 10 p. m. but he did not come. A few days later Muhammad Haroon was sitting, with Rashid Shah, Manager, and Muhammad Anwar, a clerk in the Bank. Khadim Hussain, who works in the Sub‑Treasury, was also there. Muhammad Anwar was recently be trothed and was asked to throw a party in honour of the occasion. Haroon suggested that the party should be given on the bank of river Ravi and from there they could all go to see Mela Chiraghan at Lahore. The Mela was to take place a couple of days later. This was agreed to. On the next day, which was a Saturday, it was decided shat they should go to Lahore on Sunday. Accordingly Muhammad Anwar and Mahboob Alam clerks in the Co‑operative Bank (P. Ws. 20 and 21), Khadim Hussain Cashier in the Sub‑Treasury and Rashid Shah, Manager of the Bank, left for Lahore at about 7 a m. on Sunday, the 27th March 1949.uhaonmad Muhammad Haroon pleaded inability to go at the eleventh hour. He and Muhammad Rafi had arranged that when Rashid Shah and others would go to Lahore they would commit theft in the bank. Accordingly, at about 2 p. m. on Sunday Haroon and Rafi went into the Bank. Haroon had the keys of the safe with which he opened it. Rafi removed the cover irons a cushion and asked Haroon to put the money in that cover. While doing so, Haroon stealthily put a bundle of one hundred notes of the value of Rs. 100 each into his own pocket. He then handed over the cushion cover to Muhammad Rafi who took it to his house. Rafi had brought a screw driver which was left in the safe in order to show that the safe had not been opened with keys; that would have aroused suspicion against Haroon. Haroon went with Rafi to his house were Rafi suggested that they should go to a cinema. They came out and met Karam Din, Chaprasi of the Bank. He said that he would also like to go to cinema. They walked with him round the Bank where Allah Ditta Chanhidar also turned up. They gave one rupee each to Karam Din and Allah Ditta to go to the cinema and changed their minds about going there themselves. Maroon then went to his house and put the bundle of Rs. 10,000 notes in his suit case. At about 7 p. m. he went to see Muhammad Rafi again and decided that they should go to the Bank again at night and remove the gold ornaments which were lying in the safe. They agreed to meet in the Veterinary Hospital at about 7‑30 p. m. where. Rafi promised to bring his friends Naeem, Yusuf and Haider Hassan. When Haroon arrived there at 7‑30 p. m. they were all present. It was then suggested that the key of the‑lock of the outer door of the Bank should be obtained from the Chaukidar Yusuf and Haroon went to the Chaukidar's house and brought him with them towards, the hospital. When they reached near it, Yusuf put a piece of cloth soaked with chloro form on the mouth of the Chaukidar and threw him on the ground. Rafi rushed up and caught the Chaukidar by the legs and Haider Hassan stabbed him with a knife in the belly: The Chaukidar was then picked up and brought in the verandah of the hospital where Yusuf cut his throat. Then Rafi removed the key from the Chaukidar's pocket and made it over to Haroon Naeem and Haroon went to the Bank and found Jiwan, Chaukidar outside, in front of the door. They told him that Rashid Shah, Manager, had arrived at the station with a lot of luggage and he should go to bring it over. They told him that Allah Ditta, Choukidar had also gone there for this purpose. Jiwan went to the station and they opened the door of the Bank with the key taken from Allah Ditta. After opening the lock, and removing the key from it they left it open on the latch. The safe was already open and they removed .the ornaments from it Naeem tied them in a sheet of cloth and put the bundle over his shoulder which was covered with a blanket. They returned to their companions who were standing outside ; the bank and then proceeded on the road to Nizamabad. When they reached near the Sialkoti. signal, Haroon handed over the key of the Bank to Rafi and asked him and others to chloroform him so that he may be found lying unconscious on the road and it should be thought that he had been chloroformed and the Chaukidir had been killed by some dacoits who had taken away the keys. He was accordingly chloroformed 'and left at that place. He, however, regained consciousness after a couple of hours and went to the shop of Rafi. In the morning he went to his house. Soon after his arrival Karam Din Chaprasi came and, told him that a theft had taken place in the Bank and Allah Ditta Chaukidar was not to be found. He went to the Bank and there the police took him into custody; He told them what he had done. At the end of this confession there is a certificate by the Magistrate which reads as follows: " I have explained to Muhammad Haroon that he is not bound to make a confessional statement and if he will do so, that statement may be used as evidence against him. I am certain that the confession has been made voluntarily which, I myself recorded. It was read out to Muhammad Haroon, who admitted it to be correct. It contains true facts which the said person disclosed ". The Magistrate appeared as a witness at the trial and gave evidence to the same effect: This confession was, however, retracted shortly afterwards vide Exh. D. L. which bears no date and is addressed to the Deputy Commissioner, Gujranwala. It says that the petitioner, Haroon, was beaten by the police and compelled to make a statement before the Magistrate. He was also told that he would be made an approver and if he did not make the statement the police would get him remained to their custody and beat him again. On coming to jail he learnt that he had not been given pardon and, therefore, he prayed that the statement made by him before Ch. Azam Ali, Magistrate, 1st Class should not be considered as his statement, but as that of the police. He made a similar petition to A. D. M. on 11th April 1949 through Sh. Nazir Ahmad, Advocate, in which he made reference to the previous petition mentioned above. That petition must, therefore, have been made between the 5th and 11th‑ April 1949. The confession was thus retracted within a week of its making. But, though retracted, it can be used against the maker, if it was made voluntarily. So far as its admissibility, against the cc‑accused is concerned, a retracted confession does not differ from one that is not retracted. But‑the evidentiary value of a retracted confession against a co‑accused is considerably less than against the maker. It is generally not considered sufficient to justify the conviction of a co‑accused; but, where it stands unrebutted and there is no think to show that the confessing accused had any reasons for falsely implicating the co‑accused and the story related by him fits in with proved facts and is sufficiently corroborated by material evidence against the co‑accused, the retracted confession becomes a strong piece of evidence even against the co‑accused. As against the maker himself a retracted confession may form the basis of conviction if the Court is satisfied about its truth and voluntary nature. But, even in such a case, it is wise and usual to require) Muhammad corroboration: So far as Haroon is concerned, his confession is amply corroborated by his producing a sum of no less than, Rs. 10,000 in Government currency notes from his suit case. This recovery is proved by the evidence of Muhammad Sharif (P. W. 35), and Rashid Shah (P. W. 17). It was urged by the learned counsel for the appellant that two out of the four keys required .for opening the safe were in the possession of Rashid Shah and, therefore, the safe could out have been opened without the complicity of Rashid Shah. This argument ignores the fact that Haroon, who is son of a blacksmith, could have had duplicates of the keys, which ordinarily remained with Rashid Shah, made; even if he had them in his possession for a very short time. There are substances over which the impressions of a key can be taken in no time and then it is a simple matter to make a similar key. Dr. Hans Gross in his book called the Criminal Investigation has made the follow ing observations at page 495: " Ever since locks have existed, people have attempted to open them either by force or by using false keys * * * * * When a safe, guaranteed fire and burglar proof, is sold, three similar keys are handed to the purchaser; the first he himself carries, the second is enclosed in the safe itself, whereas the third is entrusted to an intimate friend or confidential servant; but it is certainly not the manufacturer himself who makes these three keys, but one of his workmen and, whatever confidence we have in the latter, we cannot help supposing that there may be a dishonest one among them ; what hinders him in making a fourth key like the others and keeping it himself ? And when he is in possession of a certain number of these keys it will not be difficult for him to find out, from packers and servants employed in the factory, to whom these safes have been sold, and whether they have been sent ". In any case, Haroon has stated in his confession that he had the keys and the approver has also deposed that Haroon had been telling him before the theft, that he had the keys with which he could open' the safe and it does not really matter where he got them from. It is suggested that he may have got them from Rashid Shah, but Haroon has at no time said that he got them from Rashid Shah and there is no evidence to this effect. We are, therefore, not prepared to accept the suggestion that Rashid Shah is a thief or an accomplice. Nor have we any reason to suppose that Muhammad Sharif, Head Constables, took Rs. 10,000 from Rashid Shah and planted it on Haroon appellant. It is urged by the learned defence counsel that Khushi Muhammad and Farakh Ullah were also said to be present at the time of this recovery. Farakh Ullah was given up as having been won over and Khushi Muhammad said that Haroon appellant did not produce anything before the police. We have no doubt that Khushi Muhammad was also won over and was rightly declared hostile by the trial Court. We believe that Rashid Shah and Muhammad Sharif spoke the truth when they said that Muhammad Haroon appellant produced Rs. 10,000 from his house, The learned counsel for Muhammad Haroon argues that even if this recovery is accepted as genuine it only corroborates the confession of Muhammad Haroon, and the evidence of the approver, in respect of the burglary during the day. It is no corroboration in respect of the dacoity committed at night. On behalf of the prosecution, it is urged that the corroboration required in such cases need not necessarily be all the facts contained in the confession or the approver's statement. All that is necessary is that there should be corroboration on some particular points showing, or tending to show, that the accused was concerned in the commission of the crime. Once a foundation is laid for the belief that an accomplice, or a confessing accused, is speaking the truth, because his statement is corroborated on some material points, the Court is at liberty to accept other statements which may not be corroborated. This is correct, but in respect of statements relating to one offence. Where the statement relates to two separate offences committed at different times, in pursuance of a conspiracy, the corroboration of the statement regarding on, I cannot be treated as corroboration regarding the other. In this case the approver's evidence is corroborated not only in respect of the burglary during the day but also in respect of the dacoity and murder committed at night. On 11th April 1949, i.e., six days after Haroon had confessed in Court and on the day when he retracted it by petition. marked Exh. D. M., the District Magistrate tendered pardon to Muhammad Rafi under section 337, Criminal Procedure Code. He accepted it and made a statement which was recorded by Asghar Ali, Magistrate, 1st Class, Gujranwala. The papers relating to the tender of pardon and the statement made by Muhammad Rafi were subsequently stolen, as stated in petition Ex. P. A. filed by Faqir Ahmad Shah, Sub‑Inspector on 13th May 1949. The District Magistrate ordered that another statement of the approver should be recorded by Muhammad Ashraf, Magistrate, 1st Class (P. W. 18). After that the approver appeared as a witness at the trial and gave evidence to the following effect. Muhammad Riaz, a cousin of his, appeared for the Matri culation examination last year. Haroon also appeared for that examination. Rafi, approver occasionally went to see how Riaz was faring and became acquainted with Haroon. He started visiting the opprover's hotel and became a fast friend of his. They went out for walks together and one day, in the beginning of March 1949, they saw a fine car. Haroon said that in spite of the revolutionary changes the capitalists were having a fine time. He added, that if the approver‑ helped him they too could become rich. There was plenty of money and gold in the bank where Haroon was working. Rafi said that Haroon should make the plan and he would make the plan and he would provide the men to execute it. He mentioned Naeem, Haider Hassan and Yusuf as likely confe derates and Haroon approved of them. A few days later Rafi spoke to Naeem, Haider Hassan and Yusuf and they agreed to join. On 15th March 1949 Haroon went to Rafi at his hotel and told him that he had planned that Rashid Shah, Manager, should be sent somewhere and, in his absence, cash and ornaments should be removed from the safe of which he had the keys. He said that the clerks should be choloroformed and, after the money and the ornaments had been removed, Haroon too should be chloroformed so that when the theft is discovered it should be thought that the thieves had chloroformed them all. Rafi went to look for chloroform and on the following day he went with Muhammad Naeem to the shop of Tulsi, chemist and bought a bottle for Rs

7. The plan was to send a telegram to Rashid Shah in the name of his younger brother Kabir Shah, who was employed at Lahore, asking him to go there at once. Naeem was, accordingly, sent to Lahore for this on 17th March 1949 by the train which left Wazirabad at 6 a.m. On that day Rafi was called to the police station in connection with a theft case and remained there from 2 p. m. till about 10 p. m. On 18th March 1949, Haroon met Rafi in the hotel and told him that the telegram was received from Lahore at about 2 p. m. on the previous day and Rashid had gone to Lahore; but, because Rafi was not available and Rashid' had also returned at about 10 or 11 p. m., nothing could be done. He said that they would have to think of something else now. A little later in the day Rafi met Muhammad Naeem who told him that he had been to Lahore‑ and had sent the telegram. Rafi said that he had been called to the police station and nothing was done ; and that he would inform Naeem when a new plan was made. On 20th or 21st March a friend of Muhammad Rafi named Nasir came and asked him for some petrol to clean his coat. Rafi took Nasir into confidence and asked him if he would like to join in the plot. Nasir said he would think it over and returned next day to say that he was willing. On 24th March 1949 Haroon went to Rafi at about 9 or 10 p. m. and said that he had got a new idea. The Bank building was divided into two parts, he said ; one was occupied by the Bank and other by Rashid Shah, Manager. The court yard was common. The Manager and the clerks worked till late at night. Mahbub Alam, clerk, who lived in Nizamabad, usually left earlier than the others. Someone should go to Rashid Shah after Mahbub Alam had gone and tell him that Muhabub, Alam had got into trouble over some girl and wanted Rashid Shah to go to his help at once. Rashid Shah would go to help Mahbub Alam. He should be waylaid and chloroformed or killed. Rafi suggested Nasir as the decoy and Haroon agreed. Accordingly, Rafi went and informed Naeem, Yusuf and Haider Hassan about the plan they had made and told them to be at the railway level‑crossing in the evening. Naeem knew Nasir and was told to bring him. In the evening they all' met at the railway level‑crossing. Rafi and Nasir were sent to the Bank. Nasir went to the residential part of the building whilst Rafi stayed outside. A fey minutes later, Nasir returned and said that Rashid. Shahbad recognised him and, therefore, he merely asked him at what time Mahbub clam had left the Bank. The party then dispersed. On 26th March 1949, Haroon again went to Rafi, approver, at about 10 a.m. and said that he was trying to induce Rashid Shah, Manager and the clerks of the Bank to go to Mela Chiraghan at Lahore. Haroon himself would drop out of the party and he told Rafi not to go anywhere. On 27th March 1949, Haroon came to Rafi between 10 and 11 a. m., and told him that Rashid Shah and the clerks had gone and Rafi should go with him to rob the Bank. They went to Rafi's house from where he took a bag in which he used to bring provisions from the bazar. Haroon had brought a screw‑driver which he said he would leave in the safe to show that it had not been opened with keys. They first went to the house of Karam Din, Chaprasi. Haroon told him that Rafi wanted to buy some cloths and Karam Din should give him the keys of the room in the Bank where cloth ' was kept. Karam Din said that the keys were with Rashid Shah who had gone to Lahore. Haroon, however, persuaded him to come into the Bank and see if the keys could be found anywhere there. They entered the Bank by the back door which is used for going to the residential quarters of the Manager and pretended to look for the keys and, not finding them, came out the same way as they went. This visit to. the Bank was obviously intended to find out, without arousing any suspicions, that they could get into the Bank from the back door. When they came out they met Allah Ditta Chaukidar and started talking about the cinemas. They gave two rupees to Allah Ditta and Karam Din and told them to. go and see the pictures in the matinee show. Allah Ditta and Karam Din accordingly went away and Haroon and ‑ Rafi approver returned to the Bank through the back door. Rafi stood near the courtyard whilst Haroon opened the safe with his' keys, and, taking the bag from Rafi, filled it with money. Then a cushion cover was removed and some money was put into that. During this time Haroon managed to put away a bundle of Rs. 10,000 currency notes into his pocket without the approver's noticing it. Haroon then gave the bag containing the money to Rafi and carried the cushion cover himself. They went to the baithak of Muhammad Yusuf and told him that they had brought the money but not the gold for bringing which they needed the help of Muhammad Naeem, Yusuf and Haider Hassan. He was, therefore., required to meet them near the Veterinary Hospital, in the evening and to bring Haider along with him. Yusuf asked for his share of the money which had already been removed. Haroon handed over the cushion cover to him with the money and asked him to keep that until they had time to divide the shares. Rafi went to his house with the bag which; on counting, was found to contain Rs. 9,

036. He tied the bag with a string and took it behind the shop of Saeed, cycle dealer, and hid it under some bushes and stones. In the afternoon, at about 4 or ' 5 p. m., Rafi met Muhamm,ad Naeem and 'told him that he and Haroon had removed the money from the Bank and Naeem should meet them in the evening eithet in the baithak of .Yusuf or in the Veterinary Hospital: After sunset, Haroon appellant went to 'Raft's hotel and from there they proceeded to the Veterinary Hospital. On the way Rafi took the bottle of chloroform and a blanket from his house. Shortly after their reaching the Veter inary Hospital, Naeem, Yusuf and Haider Hassan arrived. It was then about 8 p. m. and they saw a train from Lahore coming into Wazirabad Station. Haroon suggested that they should go and see whether Rashid Shah and the clerks had returned by that train and they all went to the station. Rashid Shah and the clerks had not come by that train ; ,so, Rafi and his companions returned to the Veterinary Hosital. Then it was decided that Yusuf and Haroon should go and bring Allah Ditta, Chaukidar from his house to the dilapidated sarai near the Veterinary Hospital. The Chaukidar should be chloroformed and the key of the Bank should be taken from him. Yusuf took the bottle of chloroform and a handkerchief from Rafi and went with Haroon to bring the Chaukidar. Muhammad Naeem was made to stand in a corner of the compound wall of the Veterinary Hospital with instructions to whistle when he saw Yusuf and Haroon coming with Allah Ditta, Chaukidar. Rafi and Haider Hassan waited in the verandah of the saran. Some 15 or 20 minutes later, Muhammad Naeem whistled and then they saw' Yusuf talking to Allah Ditta, and Haroon walking behind them. Suddenly Yusuf put the chlororformed handkerchief on the face of Allah Ditta and threw him down. Rafi and Haider Hassan .rushed out of the verandah of the sarai. Rafi caught Allah Ditta by the legs and Haider Hassan caught him by the arms. Allah Ditta cried.for help;, whereupon, Yusuf asked Haider Hassan to take the knife out of Yusuf's pocket and stab Allah Ditta. Haider Hassan did so. Allah Ditta managed to release his legs and kicked Yusuf who took the knife from Haider Hassan and struck Allah Ditta with it. Then they picked him up and brought him into the verandah of the sarai. There Haider Hassan took the knife from Yusuf and cut Allah‑ Ditta's throat whilst Yusuf held his head. Allah Ditta died and .Raft took the key of the‑ Bank from his pocket and handed it over to haroon. Then they all went to the Bank. On the way Haxoon asked Naeem to go into the Bank with him Accordingly, Naeem, arid Haroon went into the Bank through the front door by opening its lock with key taken from Allah Ditta, Chaukidar. Rafi, Yusuf and Haider Hassan remained outside. Ten or fifteen minutes later Naeem and Haroon, appellants, came out of the Bank with the gold ornaments tied in a bundle which was carried by Naeem. Then they proceeded towards. Nizamabad and on the way Haroon handed over the key to Rafi approver because he was going to be chloroformed. The bundle containing the ornaments was carried by the culprits in turns. When it was the turn of Rafi approver to carry it he quietly removed three packages out of it. On reaching the railway line Haroon was chloroformed and left there. Before chloroforming him it was decided that the gold ornaments should be deposited with Nasir. Accordingly Rafi, Naeem, Yusuf and Haider Hassan‑ went to the house of. village Allahabad. At first Nasir refused to keep the ornaments but, after some persuasion, agreed to do so if one of the four visitors remained with him. Naeem was deputed to remain with him and Rafi, Yasuf and Haider Hassan started back for Wazirabad. After they had gone some distance they were overtaken by Naeem and Nasir who followed them on a bicycle. Nasir said that he was not prepared to keep the ornaments in his house. Raft told Haider Hassan to go back with Naeem and Nasir and bring the ornaments from Nasir's house so that they may be kept somewhere else. Yusuf and Rafi proceeded on their way. In Wazirabad Yusuf handed over the chloroform bottle to Rafi and went away to his house. Rafi went to the place where he had hidden the bag with the money 'and put the three pack ages which he had removed from the bundle of ornaments into that bag. The bag was then put back in its place and Rafi went home. On the way he. threw the chloroform bottle in a wheat field. Next morning, i. e., 28th March 1949, Rafi took the bag from its hiding place to Saeed, cycle dealer, and asked him to keep it as a deposit for him. Sultan and Shafi (P. Ws. 24 and 25) were present when the deposit was made. Rafi then returned to his hotel at about 11 a. m. A little later, the police came and took him away to the Bank. After inter rogating him they brought Naeem to the Bank and then arrested Rafi, Naeem and Haroon. The key of the Bank was found in Rafi's pocket which was taken away from him by the police. This statement of the approver is corroborated by the following evidence :‑

1. Mst. Inayat Begum (P. W. 12) is the daughter of Allah Ditta, Chaukidar and 141st. Begum (P. W. 13) is his widow. They have deposed that on the night of the occurrence Haroon appellant, accompanied by another person whom they did riot know, came to their house at Kuftanwlla when Allah Ditta had just finished his dinner and took him away from the house. Next morning they learnt that Allah Ditta was killed. This is supported by medical evidence which shows that the stomach of the deceased was full of food. Haroon accused was the treasurer in the Bank where Allah Ditta was the Chaukidar. The witnesses knew him and there is no reason to believe that they have given false evi dence against him. The learned counsel for Haroon argues that Haroon should have realised that he was known to the members of Allah Ditta's family and they would give evidence against him if Allah Ditta was killed. The learned counsel for the Crown, on the other hand argues, that Haroon went because he was in a position to bring Allah Ditta from his house. He would not have come at the bidding of any body and every body.

2. The safe was not broken open and Haroon had been saying even before 17th March, when the telegram from Lahore was sent, that he had the keys with which he could open the safe. Haroon in his confession also stated that he opened the safe with the keys which he had.

3. Rashid Shah (P. W. 17), Mahbub Al m (P. W. 20), Muhammad Anwar (P. W. 21) and Khadim Hussain (P. W. 22), deposed that Haroon appellant induced them to go. to Lahore on 27th March 1949 for a party on Ravi and Mela Chiraghan and himself dropped out at the eleventh hour.

4. The recovery of the key (Ex. P. 4) from Rafi approver which fitted the lock of the Bank (Ex. P. 5). ' It is urged by the learned counsel for the appellants, that there was no sense in killing a man to get the key of the Bank when the accused could have gone thought the back door by which they had gone during the day. The answer by the learned counsel for the Crown is that the accused found, with the help of Karam Din, Chaprasi, that the back door leading to the residential quarters of the Manager was open in the afternoon; but, it could not have been expected to remain open even at night, especially when Rashid Shah had gone to Lahore and his family was alone. The learned counsel for the appellants say that there is no evidence that this was the reason. This, however, is a reasonable explanation of why the accused found it necessary to get the key.

5. The recovery of the chloroform bottle at the pointing of Rafi approver. Dr. Tulsi, who sold the chloroform, would have been a very important witness but he was given up as having been won over.

6. The recovery of Rs. 10,000 from Haroon appellant. This is proved by the. evidence of Faqir Ahmed Shah, Sub‑Ins pector, Rashid Shah, Manager, and Mirza Altaf Ali, Lambardar (P. W. 29). Another witness of this recovery is Abdul Majid (P. W. 30), but he has been obviously tampered with and has said that the recovery list relating to this sum of money was shown to him by the police who said that they had recovered it from the house of Horoon appellant, and he signed it on that representation. He said that Altaf Ali, Lambardar, had also signed the fard in the same way; but Altaf Ali gave him the lie by deposing that in his presence Haroon ‑opened the suit case and produced the money. Farakh Ullah Khan was another witness to this recovery but he was not produced. The Public Prosecutor said that he had reasons to believe that the witness would not speak the truth, if produced.

7. The recovery of Rs. 9,.036 and three sealed packages, containing gold ornaments, from Saeed Ahmed (P. W. 23) with whom the appover had deposited them in the presence of Sultan (P. W. 22) and Muhammad Shafi (P. W. 25). Khushi Muhammad (P. W. 28) is one of the witnesses in whose presence Saeed Ahmed produced the bag before the police. He stated that one Rashid had produced this bag. He is one, of the hostile witnesses but when asked who that Rashid was, replied that he was a blacksmith but by profession a tailor. So the attempt to make out that the bag was produced by Rashid Shah, Manager, did not succeed. He further stated, that Rashid referred to by him as the person who had produced the bag had given evidence on the previous day. No Rashid had given evidence on the previous day. It was Saeed Ahmed (P. W. 23) who had given evidence on the previous day, i. e., 9th December 1949, and it is, there fore, clear that the reference by Khushi Muhammad was to Saeed Ahmed (P. W. 23) although he called him Rashid by mis take. ' Saeed deposed that he knew Rafi approver and he had deposited a khaki bag with him, early in the morning of 28th March 1949, in the presence of Muhammad Shafi and Sultan Ahmed P. Ws. At about noon he came to know that Rafi was arressted by the police and he took the bag and handed it over to them. The bag on being opened by the police was found to contain the three packages of gold ornaments and the sum of Rs. 9,036.

8. The recovery of the drum containing 78 sealed packages and three envelopes and gold ornaments bearing the seals of the Bank at the pointing of Naeem appellant from a pond. The memorandum relating to this recovery (Ex. P. W.) was prepared by Muhammad Sharif, Head Constable and attested by Rashid Shah, Manager, Khushi Muhammad and Farukh Ullah. It shows that, in the presence of the witnesses named above, Muhammad Naeem, son of Chiragh Din, Awan by caste, resident of Mohalla Kawan, Wazirbad, saying that he had thrown an iron drum con taining the potlies in the water drain, near a shisham tree close to the Grand Trunk Road and pointing the said place and entering the water produced the drum which contained the Potlies and the envelopes enumerated therein. Muhammad Sharif, Head Constable and Rashid Shah, Manager have deposed that the drum was produced by Naeem appellant, as stated in the memorandum; but Khushi Muhammad said that it was Rafi approver and not Naeem appellant who gave this information. Khushi Muhammad is contradicted by the memorandum (Ex. P. W.) which was attested by him and we have no doubt that his evidence is false. Farukh Ullha, as stated above, was given up as having been won over: That leaves the evidence of Muhammad Sharif and Rashid Shah on this point and we are satisfied that they are honest witnesses and the drum in question was produced by Naeem appellant. This recovery is corroboration of the approver's statement in respect of the dacoity and murder at night.

9. The despatch of the telegram (Ex: P. E.) to Rashid Shah by Naeem from Lahore. Ghulam Ali Shah (P. W. 15) stated that he was a licensed telegram writer at Lahore and the telegram P. E. was written by him and signed on the back by some one other than Naeem. The specimen writing of Naeem appellant was obtained by the trial Court and an Handwriting Expert, Mr. Cyril Bhan (P. W. 6) expressed the opinion that not only signature "Kabir Shah" at the back of the telegram but some other' portions of the telegram were also in the handwriting of Muhammad Naeem appellant. Ghulam Ali Shah said that except the signature "Kabir Shah", on the back of the telegraphic form, the rest was written by him. The trial Court held that the signature Kabir Shah only was written by Naeem. We have seen the original telegram and the specimen writing of Muhammad Naeem and we accept as correct the finding of the trial Court that the telegram was only signed by Muhammad Naeem. The opinion of an expert is never binding on a Court. It is admitted in evidence only to help the Court in arriving at a correct decision. But it does not follow that the opinion of an expert is always correct. In this case it is not.

10. Ghulam Nasir (P. W. 1‑9) stated in his examination‑in -chief that he knew Rafi, Naeem and Haroon since many years and, through Rafi approver, he had come to know Haider Hassan and Yusuf also. Some four or five days before the theft in the Bank he had gone to Rafi to get some petrol for cleaning his coat. Rafi told him about the plot to rob the Bank and asked him if he would like to join. He said. that he would think it over and on the following day agreed to join. A few days later, he was asked to go and call Rashid Shah from his house whilst the others stood at some distance with the intention of chloroforming or, if necessary killing him when he came. On seeing Rashid Shah he lost nerve and merely asked him at what time Mahbub Alam, clerk, had left.; He then returned to his companions and told them that he could not compel Rashid Shah to come. On 27th March 1949 at about 9 p.m. Naeem appellant, Rafi approver, Yusuf and Haider Hassan came to his house and told him that they had looted the Bank and asked him to keep the stolen property. He asked them where Haroon was and Rafi replied that he had been chloroformed by them and left near the railway line. He refused to keep the stolen property, but was pressed to do so and agreed on the condition that one of Rafi's party should remain with him to guard the property. Naeem was, accordingly, left there and others went away. As he was afraid of becoming involved in the crime he told Naeem that he did not wish to keep the property and taking Naeem with him went on a bicycle after Rafi, Yusuf and Haider Hassan whom he overtook near the railway crossing. Rafi then directed Haider Hassan to go with him and Naeem and bring the stolen property. On reaching his house Naeem picked up a drum which was lying in the baithak and filled it with stolen property. It consisted of small cloth bags bearing red seals. Then Naeem and Haider Hassan took the drum and went away. This also corroborates the evidence of the approver in respect of the dacoity at night. When asked to identify the drum (Ex. P.7) the witness suddenly changed front and said that that was not the drum nor could he say whether the cloth bags shown to him were the same. He was asked whether the bags were put into the drum in his presence as stated by him, and he replied that he knew noth ing; the police had tutored him and he had made the above state ment. He was then confronted with a statement made by him before Magistrate under section 164, Criminal Procedure Code, marked Exh. P. J. He said that he was feeling sick and could not say anything more. He was given time to rest and on re‑appearing stated that he had been threatened by the police that if he did not make the statement which he did he would be arrested. He was cross- examined by the Public Prosecutor and admitted that he had made no complaint about the police to the Magistrate who recorded his statement or to anyone else, including his father who is a Head Master in a Middle School. We are convinced that the statement made by Ghulam Nasir in his examination‑in‑chief is true and he resiled from it as a result of pressure brought to bear upon him by the friends and relatives of the accused. Muhammad Ashraf, Inspector, C. I. A. (P. W. 37), has stated that he took a cash memo from Muhammad Shafi Tulsi, a chemist of Wazirabad, who is brother of Muhammad Sharif Tulsi, Head Master of Wazirabad High School. From the facts mentioned above, it is clear that the statement of the approver has been corroborated on material particulars, by independent and, reliable evidence, in respect of the burglary during Cie day and the dacoity and murder at night. It is also corrobora ted by the confession of Haroon appellant. The learned defence counsel urge that the retracted confession of Haroon is tainted evidence and cannot be used to corroborate the tainted evidence of the approver. It may not be used to corroborate the evidence of the approver against the co‑accused Naeem, but it is certainly good corroboration of his evidence against the maker 9f the confession himself, There is thus sufficient corroboration of the approver's evidence against both the appellants in respect of the theft. during the day and the dacoity with murder The learned counsel for the appellants have also argued that there is no corroboration of the approver against the two absconders and if the case against them is not proved, the number of the culprits is reduced to .three and section 396 cannot apply. We cannot accept this contention because all the stolen property has not been recovered. A substantial portion of it still remains to be traced. It is not known what corroboration of the approver's statement and Haroon's confession may be forthcoming when Yusuf and Haider Hassan are arrested. As their case is not before us we do not wish to say anything about them but we can see no reason to hold that the approver's statement, which is amply corroborated and which we believe to be: true, is incorrect in respect of the number of persons who participated in the crime. We, therefore, hold that the appellants have been rightly convicted under section 396 Pakistan Penal Code. Finally, it is urged on behalf of Haroon that he is a year or so younger than Naeem and he has been sentenced to transportation for life whilst Naeem has been sentenced to ten years' rigorous imprisonment. It is suggested that his sentence should also be reduced from transportation for life to ten'' years' rigorous imprisonment. We realise that, Haroon was the servant of the Bank which he robbed‑but we feel that he should not have been put in the position occupied by him at his immature age. We also feel that it was his misfortune to come under the evil influence of Rafi approver, who was the principal offender in the case and who has got off with a pardon. If Rafi had not incited Haroon and secured the services of the other offenders this crime may not have been committed. Considering the inexperience and immaturity of Haroon and the evil influence of Rafi under which he was working we consider that a sentence of ten years' rigorous imprisonment for him, as for Naeem, would meet the ends of justice. We, accordingly, maintain the conviction but reduce the sentence of Haroon appellant from transportation for life to ten years' rigorous imprisonment and dismiss the appeal of Naeem in toto. A. H. Appeal dismissed.