P L D 1962 Dacca 249 (PLP)

19. The last 2 dacoities in which the approvers did not take part are boat dacoities committed on the same night at Bharania Khal Garu‑Goja‑Khal. In connection with these dacoities accused Shaheb Ali who has been convicted by the learned Additional Sessions Judge accepting his plea of guilty, was convicted. The judgment in connection with the cases relating to these dacoities do not appear to Gave been exhibited. The witnesses on which the prosecution has relied to connect this gang with these dacoities are P. Ws. 373‑

376. P. W. 373 Abdul Bari Mirza and P. W. 373 Ansar Mirza speak of having seen Sheb Ali, appellant Mazu, convicted accused Chhoto Panchu and Akkas Fakir in a boat on the afternoon preceding the night of the dacoities and thereafter on the morning following. These witnesses were examined in connection with dacoity cases. It is evident that their evidence as against Mazu, Chhoto Panchu and Akkas was not accepted. P. W. 375 Sahabuddin Sheikh and P. W. 376 Abdul Khateque Sheikh speak of having seen the above persons and others at the house of Shaheb Ali on the afternoon preceding the night of dacoity. These witnesses were also examined in the dacoity cases. In view of this, we cannot hold that the connection of the gang with these dacoities has been established.

20. Out of the dacoities committed by this gang, murders were committed in dacoity Nos. 27 Ranbbum II and 29 Badokbali and rape was committed in dacoity No. 35 Govindapur II. The, learned Judge has come to this conclusion on evidence and we find no reason to differ from trim.

21. Before we take up the cases of individual accused persons, we propose to dispose of one point, which is of general importance in this case. The question that arises is whether inspite of the acquittal of an accused in connection with a specific charge under section 395 or some such allied section it is open for the prosecution to lead evidence to the effect that he was connected with the occurrence concerned and by some supporting evidence which corroborates the approvers' evidence.

22. Mr. Fazlul Huq, relies on the decision in the case of Bachchu v. Emperor (A I R 1930 Oudh 455), which is a decision of a Division Bench of the Oudh Chief Court, in support of his contention that it can be done. In this case, it has been held that even if an accused has been acquitted of a charge of dacoity, it is open to the prosecution to prove that on the day before the dacoity he was seen in the neighbourhood of the dacoity. This is the view which has been taken also by our learned brothers Rahman and Murshed JJ., relying on this case in an earlier gang case (Bhulu Das and 40 others v. The State), where it has been observed as follows: "But we are of the opinion that evidence which, though not believed for the purpose of conviction in a specific case under section 395 of the Pakistan Penal Code, may yet be relied upon for the purposes of a conviction under this section. It is true that once a man has been acquitted after a trial in respect of an offence, it is not open in a subsequent criminal prosecution to prove that he actually committed that offence; but, the case is different where the prosecution is endeavouring to establish some offence with which he was not charged but a different offence. Although the acquittal of that particular accused in that dacoity case cannot be utilised to show that he participated 9n that dacoity, yet may well serve as an evidence of association with other members of a gang." In the case reported in A I R 1930 Oudh 455, reference has been made to an earlier decision decided by one of the Judges constitut ing this Division Bench. That case is Lale and another v. Emperor (A I R 1929 Oudh. 321). The learned Judge in this case seems to have taken a different view from the one taken in a decision of the Oudh Court to which he himself was a party. According to the learned Judge, the evidence of participation can he admitted in a case under section 400 of the Penal Code where the prosecution is not endeavouring to establish an offence with which the accused was charged in the previous case. His view is that the evidence can be admitted under section 14 of the Evidence Act. In the case of Khilawan and others v. Emperor (A I R 1928 Oudh 430), Stwert, C. J. and Raja, J. held that evidence showing previous conviction of accused persons in a trial under section 400 of the Penal Code was admissible under section 14 of the Evidence Act not as evidence of character but as evidence to prove habit and association and section 54 was no bar to the said admission. It was also held that in such a case if it was found that a man had been acquitted fn connection with a particular dacoity, it was not open in a subsequent criminal prosecution to prove that he actually committed that offence. It was, however, open for the prosecution to prove that the accused concerned was seen in the neighbourhood of the dacoity sometime before the commission of the same. On a careful consideration of these decisions, we agree with the view taken in Khilawan and others v. Emperor, and hold that in a case where an accused was charged with a specific offence previously and acquitted, it is not open for the prosecution in connection with a trial under section 400 of the Pakistan Penal Code to lead evidence to the effect that he actually participated in that occurrence or he was charged with the offence, but it is open to them to stow that he was found in the company of some members of the gang in the neighbourhood of the place of occurrence sometime before or after the occurrence along with other members of the gang whose purpose was to habitually commit dacoities.

23. Another question, "which, we think, should be disposed of as a general question of importance in order to avoid repetition is whether it is safe for us to maintain a conviction of an accused whose participation in any of the dacoities concerned has not been established though his association with some members of the gang has been deposed to by some witnesses. It has been held in Kader Sundar and others v. The Emperor (16 C W N 69), that the essence o an offence under section 400 of the penal Code is that it must be shown that there was a gang of which the accused persons were members and the purpose of the gang was to habitually commit dacoities. Section 400 of the Pakistan Penal Code lays down that whoever belongs to such a gang he is guilty of an offence under that section. It is evident; therefore, that in order to establish the guilt of an accused under this section, it is no incumbent upon the prosecution to show that a particular accused, belongs to such a gang, did actually take part in any one or more of the dacoities concerned. The participation of an accused in any dacoity is evidence showing (sic) establishing his object for such connection as held in 16 C W N1 69, mentioned above. In the present case, the evidence of general association as against all the appellants is of a set type, namely, that the appellants, the other convicted accused person, the approvers and others were seen moving about in groups and met at places, such as, Bazars, Hats, road sides and at the houses of some of the accused persons, some times before and sometimes after some particular dacoities. There is no evidence to show that the accused persons had any particular rendezvous where they used to meet. In such a state of things, we do not feel safe to uphold a conviction of any accused whose participation in none of the dacoities has been established. The association in order to be penal must not be of a casual nature and must be for the purpose of committing dacoities habitually. Such association must be shown to have been spread over a sufficiently long period of time, in order to establish that the person concerned had identified himself with a group of persons whose common purpose was the habitual commission of dacoity. ,

24. Now, we propose to take up the case of each one of the appellants seriatim. Appellant No. 1, Nur Ali Gazi. The approvers state that this appellant joined them when they formed the lathial party and continued in sharing their activities in connection with the Gazi‑song party as well as commission of dacoities. According to their evidence, this appellant committed 8 (eight) dacoities out of the dacoities and burglary in question. This appellant has been implicated in connection with the following dacoities, which it is alleged, were committed by the gang (l) Dacoity No. 1, Baradia‑I. All the three approvers, it is said, took part in this dacoity. This dacoity was committed on 8‑4-45 at the house of Ram Charan Pal. According to the evidence of P. W. 1 Ahad Ali, before commission of this dacoity he along with Amir Ali, Shamsher, Afsar Fakir, Nuruddin and Nur Gazi held a meeting in connection with this dacoity at Chanditala Hat. This evidence of the approver finds corroboration in the evidence of P. W. 568 Ananta Kumar Nath and 1065 Abinash Chandra Paul. As against the former, the only suggestion was that he had some trouble with the appellant in connection with the removal of a but of a school, which however he denied. P. W. 1662 Abinash Chandra Paul, though otherwise deposing in favour of this appellant, fully corroborates the approver about the meeting at Chanditala Hat. We are, therefore, of the view that the participation of this appellant in the 1st dacoity committed by the gang at Baradia has been established. (2) Dacoity No. 2 Kumlail. This dacoity was committed by some members of the gang including P. W. 2 Shamsher Sheikh. The prosecution examined P. W. 546 Dayamoy, and P. W. 550 Akhoy Debnath to corrobo rate the evidence of the approver Shamsher with regard to the participation of this appellant in this dacoity. Both these two witnesses could not identify the appellant in the committing Court and therefore it cannot be said that when they speak of having seen this appellant along with some others of the gang at the house of Musa Khan on the afternoon previous to this dacoity, their evidence can be acted upon. We, therefore, hold that the connection of this appellant with this dacoity has not been established. (3) Dacoity No. 3, Sholakura‑I. P. W. 2 Shamsher Sheikh claims to have taken part in this dacoity. P. W. 571‑Khorshed Ali Kazi who speaks of a meeting near Talbunia Hat at 4 or 4‑30 P. M. 3 or 4 days before this dacoity was committed, corroborates the evidence of the approver. The suggestion against this witness is that he was deposing falsely against this appellant at the instance of Mafiz and Hamza, enemies of the appellant. There does not appear to be any reason for disbelieving this witness and., we are of the view that the participation of this appellant in this dacoity has been established. (4) Dacoity No. 7, Gilatala‑II. According to the evidence of the approvers all the three took part in this dacoity. P. W. 739 Aminuddin Sheikh speaks of a meeting at the house of this appellant at about dusk preceding the night of this dacoity. The evidence of P. W. 740 in the committing Court, which was put in under section 288 of the Code of Criminal Procedure also is to the same effect and this witness corroborates the approvers. According to the approvers, Nur Ali Ghazi was injured in this dacoity and was treated by P. W. 21 Khitish Doctor. P. W. 1 Ahad Ali states that Nur Ali Gazi received a bleeding injury on his hand; whereas P. W. 21‑Khitish Chandra Nath, the doctor, who, it is said treated Nur All Gazi, speaks of a cut injury on the leg of a person who was produced by Ahad Ali and another to him. He could not say if Nur Ali Gazi was the injured person. In that view of the evidence, though the learned Judge has relied upon this injury on Nur Ali Gazi for the purpose of corroboration of the approvers' evidence, we are unable to do so. We are, however, of the view that the evidence of P. W. 739 corroborates the approvers and the connection of this appellant with this dacoity has been established. (5) Dacoity No. 18, Betkata‑I This dacoity was committed on 11.4.49 at the house of Jatindra Pal. P. W. 2 Shamsher claims to have taken part in this dacoity and has implicated the appellant. The only witness examined in corroboration of this evidence is P. W. 742 Menajud din Howladar. This witness did not name the appellant in the Sessions Court and though he named Nur Gazi in the committing Court, did not identify him. We, therefore, hold that the contention of this appellant with this dacoity has been established. (6) Dacoity No. 31, Baradia‑III. All the three approvers claim to have taken part in this dacoity and implicate the appellant; but there is no evidence which corroborates the evidence of the approvers that the appellant took part in this dacoity. Hence, we find that the complicity of this appellant in this dacoity has been established (7) Dacoity No. 35, Govindapur‑II It has been established by evidence in this case that during the commission of this dacoity, rape was committed on P. W. 670 Husna Banu Begum. She was then a newly married bride. P. W. 649 Arshad Ali Sheikh, though speaks of a meeting at the house of Ahad Ali some 2 or 3 days before the date of occurrence could not identify Nur Ali Gazi. There is no other evidence to connect this appellant with this dacoity. In that view of the matter we hold that there being no corroboration of the approved evidence in regard to the participation of this appellant in this dacoity, it must be held that it has not been established that he took part in this dacoity. (8) Dacoity No. 40, Betibunia. P. W. 1 Ahad Ali took part in this dacoity. It was committed at the house of Abdul Bepary on 23/24‑10‑

50. The approver does not implicate the appellant 9n his evidence before the Sessions Court in this dacoity. Therefore, we are unable to hold that he took part in the same,

25. There are a large number of witnesses who have deposed to the effect that this appellant used to associate with the approvers and used to hold meetings at different places with some members of the gang on different occasions. Some of these witnesses could not identify him either on the Sessions Court in one in the committing Court, some others who identified him in one Court could not identify in another. Even excluding the evidence of these witnesses, we have quite a large number of witnesses who have proved the association of this appellant with the gang. Some 9f the prosecution witnesses in their cross‑examination state shat they did not see this appellant associating with bad men and he is a man of means and used to take part in suppressing thefts and other misdeeds in the village. Taking into consideration the evidence of these witnesses, we cannot bold that their evidence controverts the evidence of those witnesses who have deposed about the association of this appellant with the gang. On a careful consideration of the evidence we are of the view that the evidence of the approvers that the appellant was one of the first members of the gang and that he took part in the three dacoities Nos. 1, 3 and 7 mentioned above has been established by reliable evidence:

26. It has been suggested en behalf of this appellant that his pecuniary condition is good and he was one of the Matbars of his village. He, it is claimed, had a grocery shop and used to take to task thieves and dacoits. It is also his defence that P. W. 1 Ahad Ali deposed against him out of enmity because he had deposed against Ahad All in connection with an abduction case. As against the other 2 approvers, his case is that they had stolen a boat and ever that matter the appellant had some trouble with them. Moreover, there was some litigation with the uncle of his father and the brother‑in‑law of Amir Ali and that is why he had been falsely implicated. So far as the enmity with Ahad Ali is concerned, it appears that P. W. 747 Mozahar Gazi in his cross -examination has stated that Ahad Ali along with some others abducted the daughter of Soleman and in that case Nur Ali Gazi deposed against them. This was about 9 or 10 years before October, 1959. No other evidence has been produced in support of this allegation. He is one of the witnesses who has also deposed to the effect that the pecuniary condition of this appellant is good and that he had a shop and further that he used to chastise thieves. He is a neighbour of the appellant. It is very difficult to place implicit reliance on this witness for the purpose of holding that there was really enmity between the appellant and P. W. 1 Ahad Ali and even if we believe that evidence, it does not follow that the evidence of Ahad All implicating this appellant with some of the dacoities if supported by other reliable evidence should be discarded on this account. So far as the enmity with approver Amir Ali is concerned, this has been spoken of by this witness also who has said that the uncle of father of Nur Ali Gazi had litigation with the brother‑in‑law of Amir Ali. It does not follow from this that Amir All had any enmity with Nur Ali Gazi. As regards the enmity over the theft of a boat, we do not find any positive evidence on this account.

27. There is, therefore, no substance in his defence and he has been rightly found guilty under section 400 of the Pakistan Penal Code.

28. In the result, we affirm the conviction of appellants Nur Ali Gazi, Nooruddin Sheikh, Moju alias Maijuddin Sheikh, Ansar Khan, Sadek Sheikh, Ranga Shikari and Abu Bakar Shikari, with regard to the sentence imposed on them, we do not see any reason to interfere in the cases of others excepting that of Nur Ali Gazi, whose sentence, in view of the facts and circumstances of the case, we reduce from transportation to 10 years rigorous imprisonment.

29. We allow the appeals of Gafur Sheikh, Sherjan Ali Chokidar, Abdul Malek Sheikh, Mirdhan Molla, Sobhan Molla, Sobhan Sardar and Mongla Howladar and set aside their convictions and sentences and acquit them of the charge under section 400 of the Pakistan Penal Code and we direct that these appellants be released at once if not wanted in any other connection. CHOWDHURY, C. J.‑I had the occasion to go through the judgment just now delivered by my learned brother. We held discussion before the judgment was prepared to be delivered in the Court and I entirely agree with the judgment and the order passed by my learned brother in this appeal. S. B. Order accordingly.