P L D 1956 Dacca 266 (PLP)

ELLIS, C. J.‑The 'appellants in Criminal Appeal No. 214/53 are Sekandar Bayati alias Sheku Bayati, Wahab Ali alias Gedu alias Papan, Delu alias Delwar Hussain and Syed Ahmed. They are represented by Mr. Baquer, Counsel. Appel lants in Criminal Appeal No. 228/53 are Rashid, Mofazzal and Dudha Osta represented before us by Mr. Abdul Hye Choud hury. They were all .placed on trial before Mr. M. A. Jalil, Additional Sessions Judge, Second Court at Bakarganj in respect of a dacoity with double murder which took place at the house of one Montajuddin Howladar on the 22nd of January, 1952. They were all convicted under section 396 of the Penal Code and were sentenced to transportation for life, Montajuddin Howladar, a man of 35 years of age, resides at Chandpur two miles north‑east of Tajumuddi Police Station in the Bhola Subdivision of Bakarganj. About 6 o'clock or the evening of the 22nd January, 1952. Montajuddin Howladar received a postcard intimating to him that a dacoity would be committed in his house within a few days. The unknown correspondent, claiming to advise him as a friend, informed him that they had come to know that he possessed a large amount of money and asked him to be read ‑v with that money for the visit of the dacoits. Two hours after he received the postcard the dacoits actually did arrive at his house at 8‑30 p.m.. on that same evening Montajuddin Howladar had gone to his north bhiti but in order to say his Es ha prayer and his brother Ibrahim had gone to his study in the northern Com partment of the kachari ghar. In the southern room of the kachari ghar a private tutor by name Haris Munshi, who lived there was reading the Quoran Sharif. At this moment the dacoits arrived, 19 in number, armed with a double barrelled gun, pistol, ramdaos, dhals, sorki, nine batteried electric torches and the like. Some of them mounted guard at the entrance of the house and others in the courtyard. Others raided the different rooms. The dacoits effected an entry into what is known as the cabin or the strong‑room and broke open the boxes and trunks and looted about 10 maunds of silver ornaments, 75 bharis of gold and cash to the amount of Rs. 90,

244. The noise of the dacoity attracted the villagers. Montajud din Howladar who had managed to escape by the back‑door of his own house also stated what was happening and the villagers advanced towards his house. The dacoits fired on the advancing villagers and Montajuddin's neighbour Abdul Hashem Mir fell dead on the spot. His brother Abdul Kader Mir rushed forward to his help and was run through by a dacoit with a Sorki and another man by name Uzir Ali was also wounded. Three of the dacoits entered the Kachari ghar in which Haris Munshi was reading the Quoran Sharif and one of them mounted guard over him with a ramdao. While the dacoity was actually in progress a neighbour of Montajud din by name Serajul Huq went to the Thang only two miles away and there lodged an information at 9‑30 p.m. The Officer‑in‑charge Chunnu Mia came to the house at 10‑30 p.m. held an inquest on the two dead bodies of Abdul Hashem Mir and Abdul Kader Mir and sent them to Bhola for post mortem examination. He proceeded with the investigation of the case and picked up fired cartridges left behind by the dacoits. In the course of the investigation a number of people were arrested and there was a test identification parade on the 22nd February, 1952, and‑ in that parade Harish Munshi identified the appellant Sekander Bayati as the man who had mounted guard over him with a remdao at the time of the dacoity. Amongst the persons arrested was one Mokbul alias Magha who was arrested by local Ansars and Choukidars on the 17th May, 1952, and was produced before the Police Officer. In pursuance of the statement which he made he took the Police Officer to a place near his house and there pointed out a place wherefrom the Police dug out 1 seer 22 tolas of silver ornaments which are all proved to have been stolen from the house of Montajuddin Howladar. On the next day the 8th May 1952, Mokbul alias Magha was produced before a Magistrate at Bhola, Maulvi S. Ahmed, Sub‑Deputy Magistrate of First Class and there his confession was recorded. The recording of the confession occupied the Magistrate for four hours and he did not finish recording it until 7 p.m. In all 14 persons were sent up for trial before the Additional Sessions judge on charge under section 396 of the Penal Code against 13 of them and under section 412 of the Penal Code against

4. Of their number we are now concerned only with the case of the 7 appellants. The first point taken on behalf of the appellants touches the examination of the approver in the Court of Sessions. It was claimed that as the approver had also been committed for trial by the Committing Magistrate he could not be examined as a witness in the case in the Sessions Court. This was the point which was taken in a previous case of Abbas Ali v. The Crown (4 D L R 247); and it was there held that if a Magistrate by oversight or mistake includes the name of an approver amongst the accused committed for trial, that does not bar his examination in the Sessions Court as witness on the side of the prosecution. That was a decision to which one of us was a party. We see no reason at all to differ' there form. We, therefore, hold that the examination of the approver was not illegal. With regard to the evidence of the approver the main criticism is that the story told by him as to the manner in which the dacoits assembled in Ilsha 40 miles away from the village of dacoity and proceeded from their rendezvous to Chandpur and the scene of the dacoity and their subsequent return have not been narrated in any detail by the approver, so as to afford opportunities for testing his accuracy and reliability and to warrant the acceptance of his story as being a true one. It is true that the confession has not been recorded in any great detail but the fault for that must lie on the shoulders of Mr. Shafiuddin Ahmedo Magistrate, who record ed it. Ha deposed that the approver was produced before him on the 18th May, 1952, at 3 p.m. He cautioned him and gave him about three hours' time fore reflection. Thereafter he repeated the caution and the approver insisted on making a statement. The Magistrate adds that he finished the recor ding of the confession at 7 p.m. and he was sitting for four hours at a stretch. It is clear from his own evidence that he did discard the details of the approvers's story. He admitted as much in his cross‑examination : "I might have discarded the detail in recording the confession". It is unfortunate that the Magistrate took it upon himself to omit the details of the confession. The fact that he did so, however, does not show that the approver was not telling the truth. It was suggested to us that the approver was a "dull -witted fisherman" who was not intelligent enough to take in the story that he was tutored to say and that is why he makes contradictory statements in his evidence in the Court of Sessions and does not trust himself to speak to any details of the expedition. If the approver is to be held a dull‑witted fisherman of limited intelligence, it is, to say the least of it, surprising that the Police should find in him their approver for the purpose of the present case. It was argued that the approver never went at all to the house of Montajuddin Howladar and that was the reason why he failed to mention the Hezag lamp spoken to by the other prosecution witnesses and why he is vague with regard to the number and the site of the buts in Montajuddin's house. It is true that the approver does not speak of the Hezag light stated by P. W. No. 6 Lutfar Rahman to have been lighted by the dacoits and to have been kept on the thresh-hold of the west bhiti but. No other witness speaks of a Hezag light and it may well be, in' our opinion. that P. W. 6 was describing as Hezag light one of the nine batteried torches spoken to by the approver. With regard to the supposed discrepancy between the evidence of the approver and the evidence of Montajudin Howladar regarding the number and disposing of the huts in his house we find no serious discrep ancy. The approver stated: "At Montaz Howladar's house there is one but on the east bhiti, another on the west bhiti. These two huts again are joined by some buts on the north bhiti which may be Bola or something like this". That is, the witness speaks on one but on the east bhiti and one but on the west bhiti which are joined by some huts whose numbers are not specified on the north bhiti. Montaj uddin Howladar himself says "we have two huts on the east bhiti two huts on the north bhiti, two burs on the west bhiti and all these are joined with one another". It may well be that the northern but on the east bhiti and the northern but on the west bhiti were considered by the approver to be huts on the north bhiti all joining the southern but on the north‑east bhiti and southern but on the west bhiti. After all he was visiting the house 40 miles away at night and for the first time. We do not think that he can be held strictly to account because he would consider as being huts in the line of buts in the north bhiti two huts which are more accurately described by the house‑holder himself as being on the east and west bhitis, respectively. The approver gives his story of the manner in which the dacoits assembled at Seku Bayati's hat‑khola and then went three miles south‑west to Char Bheduria where they picked up Syed Ahmed and other dacoits and the weapons they were to carry. Thereafter they returned to the hat‑khola where the other members of the gang kept the rendezvous of the number of

19. From this point of assembly on Monday the 22nd January, they set out for the house of the dacoity by way of Adkhania khal 15 or 20 miles away from the hat‑khola and the dighi at north Chandpur. He speaks of the dacoity in the Montajuddin Howladar's house and the return up to the point near Kaonia khal where the party found that the addition of their booty overloaded the boat to such an extent that certain members of the party had to abandon ship and proceed on foot. As they are said to have looted over 10 maunds of silver ornaments it does not seem to us, that this story is incredible. It is true that apart from certain evidence which will be discussed in the individual cases there is no evidence of any observer to corroborate the approver's story that all the dacoits were seen right up to the house of Montajuddin Howladar. That, however, cannot be expected. If there is evidence on which reliance can be placed to show that they assembled at the rendezvous and were seen at some stage of their journey to Chandpur and if there is evidence that they were actually seen also at some stage of their journey back to the point of assembly carrying suspicious bundles, we think that is as much as reasonably can be expected. The learned Additional Sessions judge in each case has pointed out what that evidence is and why he is prepared to rely upon it. The first appellant whose case has to be noted is that of Sheku Bayati in respect of whom four Assessors were divided in the proportion of 2 to

2. He is of course mentioned by the approver and there is credible evidence that he was seen in the meeting held at his house two days before the Commission of the dacoity. In his case there is the evidence of the private tutor Harish Munshi. As we have already stated, this witness identified him in the test identification parade on the 22nd February, 1952. The defence challenges this identi fication on the ground that the witness did tell the Investigating Police Officer that he would not be able to identify the man who stood guard over him with ramdao. It is true as Police Officer has proved that the witness did make that statement. At the same time he described the man as being of "medium complexion, thin built man of medium size" and the learned Additional Sessions Judge has commented that this description fits Sekandar Bayati. The witness described the man as wearing a black chapdari and he suspected that the beard was false. By that statement he did not necessarily mean that the beard was false but he only voiced his own suspicions. As the witness did give the description of the man who mounted guard over him we see no reason to reject his identification of the appellant. Sekandar Bayati as being that man, particularly when we find the Court recognises the description as fitting the appellant. On the evidence the witness had no reason maliciously to identify Sekandar Bayati if he was not the man he saw. The fact that he stated to the Police that he would not be able to identify him cannot, in our opinion, outweigh the positive fact of his actual identification of the appellant. It was suggested on his behalf that the learned Additional Sessions Judge overlooked the evidence of his alibi. Sheku Bayati examined two witnesses on his behalf. The first witness was Talukdar Nurul Haque, the Store‑keeper of the Civil Supply Office at Bhola who stated that in January, 1952, Sekandar Bayati had an appeal against a civil levy. The appeal was heard on the 22nd January, but the witness stated that Sekandar Payati was not present in their office. D. W. 1 Maulvi Syed Ahmed, a practising Pleader at Bhola stated that Sekandar Bayati's son was present in the Court of the Levy Appellate Officer one day in the later part of January, 1952. As one of these witnesses stated that Sekander Bayati was not present in his office and the other spoke of his son being present we do not think any fault can be found with the learned Additional Sessions Judge when he summarily dismissed this evidence by saying that there is nothing in support of the plea that he was elsewhere in the district on the night of the dacoity. The appellant Wahab Ali alias Gedu was also spoken to by the approver and there was in his case also the finding in his house of two live cartridges which were sent to the Arms Expert along with five fired catridges left by the dacoits at the house of Montajuddin Howladar. It was suggested on behalf of Wahab Ali that the cartridges had been planted upon him. So it may be taken that there is no suspicion that the cartridges were found in his house. The finding of the cartridges is a very material piece of corroboration of the fact stated by the approver that Wahab Ali also took part in the dacoity. He was found guilty by all the four Assessors. The appellant Delu was also found guilty by all the 4 Assessors. In his case not only is there the evidence of the approver that he took part in the dacoity coupled with other evidence that he assembled at the rendezvous of the dacoits, started with them carrying weapons and returned home on Thursday morning carrying certain bundles but also there is evidence that certain properties were recovered from his house when it was searched by the Police Officer and that property was proved to be property pawned by the owner to Montajuddin Howladar. The appellant was indeed fortunate in that the evidence supporting the charge under section 412 of the Penal Code was not accepted. The appellant Syed Ahmed in the opinion of the three Assessors was guilty under section 396 of the Penal Code. One of them thought that he was not guilty. Against him there is the evidence of the approver coupled with the evid ence that he took part in the conference which preceded the dacoity, that he set out from the rendezvous in the body of men armed with deadly weapons and after the dacoity he returned home in the same company carrying the weapons and also certain bundles. We see no reason to disbelieve the evidence of the approver that Syed Ahmed actually took part in the dacoity and hold that he has been rightly convicted. The appellant Rashid was thought by three of the Assessors to be guilty while one of them thought that the charge had not been proved. Here again there is the evidence of his participation in the conference which preceded the dacoity of his departure from and his return to the point of rendezvous. There is also, as in the case of Delu, the fact that when his house was searched by the Police on the 18th February, 1952, certain ornaments were recovered which were identified by the prosecution witnesses as having been pawned by the owners to Montajuddin Howladar. The ornaments were found concealed under a heap of ashes. There was a charge under section 412 of the Penal Code against Rashid in respect of this finding and Rashid was fortunate. In that it was accepted in respect of the charge under section 412 of the Penal Code that as his father Ahmed Ali was also living in the same house there was some doubt as to which of them might have concealed the ornaments under the ashes. As it is, we think the evidence establishes that it is no ocher than Rashid who did so. This amply corroborates the evidence of the approver. The Assessors were unanimous in regard to the appellant Mofazzal and all of them thought that he was guilty. Against him there is the evidence that he took part in the conference and that he left the rendezvous along with other dacoits and returned thereto on the following Thursday carrying weapons and certain bundles. We see no reason to differ from the Assessors' estimate of the credibility of the witnesses who gave evidence against him. Lastly, there is the case of Dudha Osta who on the evidence of the case clearly must have been the informer who supplied the information on which the dacoity was planned in the house of Montajuddin Howladar. Dudha Osta lives in North Chandpur 40 miles away from where Sekandar Bayati and his men used to live. We see no reason to differ from the Assessors' estimate of his guilt. In the result then we are satisfied that the evidence of the approver represents the truth and maybe safely relied upon and that it has been corroborated in so far as corrobora tion was possible touching the association of each one of the present appellants in the actual dacoity. We have further pointed in the individual cases the additional corroboration such as the identification of Sekandar Bayati and the finding of the property and cartridges which go to show that the approver's story was true. In these circumstances we see no reason to interfere with the convictions or, in view of the double murder, with the sentences of any of the appellants either in Criminal Appeal No. 214 or

228. The appeals are, accordingly dismissed. BADIUZZAMAN, J.‑I agree. K. B. A. Appeals dismissed.