P L D 1952 Lahore 55 (PLP)

A. MUHAMMAD JAN, J.‑Nur Muhammad, Nek Mu hammad, Yaqub, Sarishta and Ahmad Din were accused of having committed dacoity in Chak No. 29‑D, District Mont gomery, on 20th October 1949. They were convicted and sentenced to seven years' rigorous imprisonment each. Nur Muhammad, Nek Muhammad and Yaqub have filed appeal No. 289 of 1951 through Mr. Allah Din Malik. Sarishta and Ahmad Din have filed a separate appeal No. 310 of 1951 through Mr. Muhammad Amin Khan. Both the appeals will be disposed of by this order. The prosecution case is that about two years before the present occurrence, one, Zulfiqar, brother of Bali (absconder), had a fight with Shaman (P. W. 2) which resulted in Zulfiqar's death. Shaman, his cousin Rahrnan and some others were tried for causing Zulfiqar's death but acquitted. On 20th October 1949, Havildar Muhammad Ismail (P. W. 13) was holding a Razakar parade in Chak No. 29‑D. Shaman and many others, including some of the prosecution witnesses, were taking part in it. At about Digarwela they saw eight persons coming on four mates, two riding each mare. Five of these eight, namely, Sarishta and Ahmad Din appellants, Bali, Karam Ali and Lalu absconders, were known to and identified by the prosecution witnesses at the spot. The remaining three, Nur Muhammad, Nek Muhammad and Yaqub were identified subsequently in jail. The culprits were armed with guns and rifles and had come probably, to avenge the death of Bali's brother Zulfiqar. Bali abused Shaman and then some shots were fired where upon Shaman and others, ran pell‑mell. Shaman, apprehend ing danger to his life, ran towards his house to fetch his gun. His brother Imam Din (P. W. 4) on hearing the reports of gun shots was coming towards the parade ground with a gun in his hand. Shaman told him that Bali had brought some dacoits and, taking the gun from Imam Din, told him to fetch another gun for himself. Imam Din had a rifle lying in his baithak. He ran towards the baithak to get it but the accused intercepted him and he had to take refuge in the verandah of his house. The accused then came to Imam Din's baithak and started firing at Imam Din and Shaman. Shaman had also entered the compound of the house and taken shelter in the verandah at some. distance from Imam Din. Imam Din had no weapon but Shaman had the gun and with it returned fire. The cross firing continued for a long time but both sides had taken good care to protect themselves and no one was injured. Many empty cartridges were found at the spot when the police came there. Jambar Khan (P. W. 2) lives in Thatha Mehr Shah which is situated at a distance of about a mile from Chak No. 29‑D. On hearing reports of the gun‑shots he proceeded towards Chak No. 29‑D and met a person on the way who told him that a dacoity was being committed in the Awan's house in Chak No. 29‑D. Jambar Khan is an Awan and related to the complainants in this case. He went straight to Police Station, Huira, situated at a distance of about 10 miles, and reported that some dacoits had attacked the Awans in Chak No. 29‑D, that the Awans were related to him that the police should go there immediately to help. In the meantime, the dacoits had entered into Imam Din's baithak and removed his rifle from there. Then they went to the house of Rahman (P. W. 7)', cousin of Shaman, and removed some ornaments belonging to his wife. After that they dis appeared and when the police arrived Bali, who lived in Chak No. 29‑D, could not be found there. Karam Ali, Lalu, Sarishta and Ahmad Din who were identified at the spot were also looked for in. and around their places of residence but they too could not be found. Bali, Karam Ali and Lalu are still absconding and proceedings were taken against them under section 512, Criminal Procedure Code. Sarishta was arrested on 24th October 1949 but he escaped from custody arid was subsequently arrested on 3rd November 1949. In pursuance of some information received by the police, Nut Muhammad and Yaqub were arrested on 14th November 1949, and Nek Muhammad was arrested on 15th November 1949. On that day, i.e., 15th November, an identification parade was held in jail under the supervision of a Magistrate, Nawab Inayat Ali Khan (P. W. 53). He has deposed that Nur Muhammad, Nek Muhammad and Yaqub were mixed with eighteen under trial prisoners. They were allowed to change their clothes, and to stand where they liked. The prosecution witnesses were kept outside the jail and were called in one after the other. Nur Muhammad was identified by Imam Din (P. W. 4), Rahman (P. W.7), Toga (P. W. 8), and Havildar Muhammad Ismail (P: W. 13), Nek Muhammad was identified by Shaman (P. W. 3), Imam Din (P. VV: 4), Rajju (P. W. 5), Sardara (P: W: 6), Rahman (P. W. 7); Toga (P. W. 8), Dona (P: W. 9), Muhammad (P. W. 11), Shafi (P. W. 12), Muhammad Ismail (P. W. 13) and Fazal (P. W. 14). Yaqub was identified by all the above‑named P. Ws. except Dona (P, W, 9) and Shafi (P. W. 12). The memorandum of identification (Exh. P. Y) prepared by the Magistrate shows that, each witness, after identifying the accused, clearly stated that the person identified by hits had participated in the dacoity which is the subject‑matter of this case. The Magistrate has said that the accused told him that they had been shown to the prosecution witnesses by the polio, but there is no evidence to support this except that of Fazal (P. W. 14) who, on being recalled for further cross‑examination after the charge on 20th November 1950, said that Yaqub appellant was produced before the Sub‑Inspector about twenty days after the dacoity and about fifteen days later he identified Yaqub in jail. It is pointed out by the learned counsel for the Crown that this witness was examined before the charge on 16th February 1950, and he did not say that he had seen Yaqub appellant with the police before the identification. It is suggested that he made this statement about nine months later in order to oblige the appellant Yaqub. Be that as it may, even if the evidence of Fazal (P. W. 14) against Yaqub appellant is excluded, there remains the evidence of no less than eight witnesses, some of whom are entirely disinterested. After the identification, the accused were remanded to police custody for inquiries about the stolen property. Yaqub produced a gold ear‑ring (Exh. P. 6) a gold pari (Exh. P. 7) and a pair of silver bangles (Exh. P. 10) from his house. They were lying buried underground vide memo. Exh. P. R. Nek Muhammad produced a pair of gold‑ear‑rings (Exh. P: 8) from his house vide memo. Exh. P. B. B. and Nur Muhammad produced a gold ear‑ring (Exh. P. 4) and five silver bangles (Exh. P. 5) vide memo. Exh. P. O. All these articles were identified by Rahman (P. W. 7) and his wife Mst. Jan Bibi (P. W. 10) as their property. Hassan Din goldsmith (P. W. 34) has deposed that he made all these ornaments for Rahman and his wife. It appears that a list of the stolen pro perty was prepared by Imam Din shortly after the dacoity and was handed over to the police' when they arrived. The trial Court has admitted this list in evidence. It was proved by Imam Din and marked Exh. P. D. The learned trial Magistrate has stated in his judgment that he compared the recovered articles, with the list Exh. P. D. and found that articles marked P. 4, P. 6, P. 7, P: 8, P. 9, P. 10 and P. 13 are mentioned in this list. The learned counsel for the appellants objected to the admissibility of this list on the ground that it was a written statement made by a witness to a police officer in the course of investigation. The only reason given by the trial Court for admitting this list is that it was produced at the earliest possible time after the arrival of the police. The true criterion for de ciding whether the list was admissible is whether or not it was given to the police in the course of investigation. There is no doubt that a report relating to this dacoity had been made at the police station and the police had come to the village for the purpose of investigation and it was in the course of that investigation, howsoever early it might have been, that the list was delivered to the police. I, therefore, exclude it from consideration and rely‑only on the oral evidence regarding the ownership of the ornaments mentioned above. On the side of the prosecution there is the evidence of Rahman, his wife Mst. Jan Bibi, and the goldsmith' Hassan Din. On the side of the accused there is the evidence of Mehr Din (D. W. 1). and Shahab Din (D. W. 3). Mehr Din said that the ornaments recovered from Yaqub belonged to Yaqub and he had seen them on various occasions. Shahab Din said that the articles recovered from Nek Muhammad belonged to Nek Muhammad and he had seen them on several occasions. Yaqub belongs to Chak Hassan Arain and Mehr Din belongs to Chak No. 283‑E. B. They do not live in the same village and it does not appear in the evidence of Mehr Din what oppor tunities he had of seeing the ornaments and how he was in a position to remember the details of their make. Similarly, there is nothing in the evidence of Shahab Din to show that he was so connected with Nek Muhammad that he had opportunities of seeing the ornaments and remembering how they were made. The evidence of Muhammad Din (D. W. 2) is that, about a year and a half before the occurrence, he and Yaqub appellant were called by one Aslam Khan of Chak No. 99 who suspected Yaqub of something which has not been mentioned. This evidence is irrelevant and the evidence of Mehr Din and Shahab Din did not impress the trial Court nor does it impress me. The evidence of Rahman (P. W. 7) is that he was taking part in the parade when the accused arrived. He identified Sarishta and Ahmad Ali appellants and Bali, Lalu and Karam Ali absconders. He later on identified Nur Muhammad, Nek Muhammad and Yaqub in the identification parade. On account of fear he went away to the house of some carpenters and returned to his house after the dacoits had gone. He had a list prepared of the articles stolen from his house and identified Exh. P. 4 to P. 10 as belonging to him. Mst. Jan Bibi (P. W. 10), wife of Rahman, stated that on hearing the reports of the gun‑shots she ran away for safety to her fields and on returning to her house found the lock of the door broken and articles P. 4 to P. 10 missing. Hassan Din goldsmith (P. W. 34) deposed that he made Exhs. P. 4 to P. 8, P. 10 and P. 13 for Rahman and Mst. Jan Bibi. He no doubt admitted in cross‑examination that similar ornaments were prepared by other goldsmiths to but he said that the ornaments mentioned above were made by him and he was able to identify them. He is a village goldsmith and, has no registers or records in which the ornament made by him are entered ; but it is not impossible for goldsmiths to identify the ornaments‑made by them. The prosecution evi dence regarding the ownership of the ornaments is not over‑whelming but it is natural and believable. There is no reason to reject it and I accept it as true. A rifle (Exh. P. 11) was also recovered from the possession of Nur Muhammad appellant. Nur Muhammad had no license for this and, naturally enough, did not claim it as his own. He denied that it was recovered from his possession. It is, however, proved by the evidence of Sultan Ahmad (P. W. 26, Ali Muhammad (P. W. 27) and Asghar Ali Sub‑Inspector (P. W. 38) that this rifle was re covered from the possession of Nur Muhammad appellant. But, Shaman and Imam Din were not asked whether the rifle (Exh. P. 11) belonged to them and it has not been proved that it is the same rifle as was stolen from the baithak of Shaman and Imam Din. Imam Din has, however, deposed that he had a rifle in his baithak before the accused entered it and that it was not there when he went to the baithak after the accused had gone. The fact of a rifle having been found in the house of Nur Muhammad is; therefore, not without some significance. It is in evidence that when the dacoits were going away they met Sadiq (P. W. 16) just outside the village. He was riding a mare and the dacoits robbed him of it. Sadiq knew Bali and said he was one of the eight dacoits. A mare was recovered from the possession of Sarishta appellant ; but the description of the mare given by Sadiq did not tally with the description of the mare found. The trial Court, therefore, held that it was not proved that the animal recovered from Sarishta belonged to Sadiq. The evidence of Sadiq is, however, used by the learned counsel for the Crown to show that the culprits in this case were out to steal and rob and that they had robbed Sadiq of his mare in pursuance of their common object. The fact that Sadiq was robbed of his mare is not rebutted by the defence. The animal recovered from Sarishta may not be the animal stolen from Sadiq. The recovery of the stolen property/ 'is, however, not necessary to prove theft. The mare of Sadiqi might have been stolen and not recovered. The main question that remains to be considered is whether the appellants were correctly identified by the prosecution witnesses. It was argued by the learned counsel for Sarishta and Ahmed Din that his clients should not be held guilty on the ground that a large number of witnesses have chosen to impli cate them. He has not been able to show that the witnesses who have implicated them had any reason to falsely implicate them. Some of them, like the drill instructor, are entirely inde pendent. Moreover, they are residents of the village where the offence took place and are natural witnesses. I can see no reason to reject their evidence. The learned counsel for Nut Muhammad, Nek Muhammad and Yaqub has argued that the witnesses who identified them did not say that they had taken part in the dacoity. This is not correct. The memorandum of identification (Exh. P. Y.) shows that when pointing out the accused the witnesses clearly said that they had committed dacoity. It may be observed that Nawab Inayat Ali Khan, who" held the identification parade, was not specifically asked when he gave evidence whether the witnesses, when identifying the accused, had or had not said that they had taken part in the dacoity. But he has deposed that the memorandum of identi fication prepared by him is a correct record of the identification proceedings and the fact that the witnesses said that the accused picked out by them had taken part in the dacoity is clearly stated in that 'record. The correctness of this was never challenged in cross‑examination: This memorandum is, how ever, not the evidence on which conviction can be based. It is only a previous statement made by the witnesses which can be used to corroborate them. In Court they have deposed that the appellants committed dacoity and considering that some of them are entirely disinterested I believe what they say. The trial Court has convicted them under section 308 P. P. C. This is an obvious mistake. Section 398 says that if, at the time of attempting to commit robbery or dacoity, the offender is armed with any deadly weapon, the imprisonment with which such offender shall be punished shall not be less than seven years. It merely prescribes the sentence arid relates to cases in‑which robbery or dacoity has been only, attempted and not committed. The section applicable when robbery or dacoity is actually committed and,, at the time of the commission of the offence, the offender uses any deadly weapon or causes grievous hurt or attempts to cause death or grievous hurt to any person is section 397 P. P. C. The learned counsel for 'the appellants have argued that it is impossible that shots should have been exchanged for a couple of hours, as alleged, and no one should have been hurt. The empty cartridge cases found at the spot on that some firing did take place there; but I am inclined to think that there has been some exaggeration by the prosecution witnesses in this respect. The empty cases found at the spot may have been the cartridges fired by Shaman in self‑defence. I am, therefore, not disposed to apply section 397 P. P.C. to this case. But, I am satisfied that the ornaments recovered from Nur Muhammad, Nek Muhammad and Yaqub were removed from the house of Rahman P. W., that the five appellants took part in this dacoity and out of them Sarishta and Ahmad Khan were correctly identified at the spot whilst Nur Muhammad, Nek Muhammad and Yaqub were correctly identified in Jail and then in Court. They have been guilty of an offence under section 395 P. P. C. and I convict them under that section. In view of the fact that no injuries of any kind were caused to the complainants and the value of the‑ stolen property, almost all of which has been recovered, is not very much, I reduce the sentence of the appellants from seven years to four years' rigorous imprisonment each. The appeal is otherwise dismissed. A. H. Sentence reduced.