1968 P Cr (PLP)

Ghulam Mustafa Khan for the State. On the 31st of August 1966, the Additional District Magis trate, Bahawalnagar, convicted Mali accused under section 392 read with section 397, P. P. C. for committing dacoity while using a deadly weapon, at the Railway Station Chabiana and hav ing robbed the State Property, and sentenced him to undergo rigorous imprisonment for a period of seven years and fine of Rs. 50 or in default to suffer further rigorous imprisonment for six months. By the same order, his three companions Bashir son of Sultan, Bashir son of Chakar and Neka were found guilty of the offence under section 392, P. P. C. and sentenced to rigorous imprisonment for a period of three years and a fine of Rs. 200 each and in default to suffer rigorous imprisonment for a period of further six months. All the four accused have challenged their conviction in this appeal before me. It is alleged that on the night between the 9th and 10th of June 1965, at about 11-30 p. m. all the above-named four accused went to the Railway Station Chabiana. They found P. W. 2 Falak Sher, Waterman, sleeping at the platform. They awakened him and asked him for the keys of the booking office. The witness replied that those were with the Station-master. The dacoits then proceeded towards the booking office and the witness ran away to the quarter of the Station-master to inform him about it. At the time Mali accused was armed with a gun and he discharged two- fires in the air. His other companions Bashir son of Sultan and Bashir son of Chakar were armed with the Hangs, while the fourth culprit, namely, Neka had no arm. In the booking office they broke open the iron safe and removed Rs. 135.35 paisas. They also broke open the ticket-tube (almirah) and took away Rs. 10 found lying in it. In addition to this. the accused removed the clothes and uniform of the Station-master from the office. They had also cut the telephone card and taken away the receiver with them while decamping.

2. Soon afterwards, Mr. M. S. Sattar, the Station-master con cerned despatched the telegraphic report (Exh. P.F.)and on its basis the formal F. I. R. (Exh. P. F. 1) was entered by P. W. 8 Abdul Rashid, Head Constable No. 191, Railway Police, Bahawalnagar. As a result of the investigation, the police arrested Bashir son of Chakar on 26th June 1965 and the remaining three accused were arrested on 29th June 4965. The receiver of the phone (Exh. P. 4) was recovered from the canal allegedly at the instance of Bashir son of Sultan on 7th July 1965. This was taken into custody by the police under memo. Exh. PH in the presence of P. W. 5 Sultan, P. W. 6 Ghulam Rasool and P. W. 7 Ghulam Noor. They have attested the said memo. Before this, on 1st July 1965, Sayed Akhtar Ali Munir, Tehsildar, Bahawalnagar, had held the identification parade in the District Jail, Bahawalnagar, in which the four accused are stated to have been identified by the witnesses. His report in this connection is Exh. PK. 3. - Broadly speaking. P. W. 2 Falak Sher has supported the prosecution version of the case. But at the identification parade on lat July 1965, he was able to identify Mali and Bashir son of Chakar and was unable to identify the other two accused. In the Court appearing as a witness on 2nd October 1965, he was able to identify Mali and Bashir son of Sultan only. From the cross examination of this witness it fr4nspires that it was a moonlit night at the time. This witness admits that he was kept by the police under suspicion and tortured for 3/4 days. 4, P. W. 1 Abdul Shakoor is a Kanteywala at the Railway Station. He has stated that he was sleeping in his house when at about 11-30 p.m. on the night of occurrence, Fateh Din awakened him and told him that dacoity had taken place at the Railway Station Chabiana. At this he along with Fateh Din and Nawab Maseeh rushed to the house' of the Station-master and then went to the station along with the Station-master. He saw all the four accused, identified by him in Court, coming out of the railway station and proceeding towards the road leading to Chabiana Rest House. The accused threatened them not to step forward, otherwise they would be shot dead. At that time Mali accused had a rifle in his band, Bashir son of Sultan and Bashir son of Chakar had sotas in their hands while Neka accused was unarmed. In his cross-examination, the witness admitted that the accused were going at a distance of 18/20 karams from the railway station when they met them. They were at a distance of 8/9 karonfs from the accused. The witness did not hear any gun fire or any other alarm at the time of the occurrence. P. W. 3 Noor Muhammad son of Sandhi was running a shop near Chabiana Railway Station. He was sleeping in his shop at about 11-00 p.m. when Falku (Falak Sher P. W.) raised the alarm that the dacoity had been committed. He got up and heard the reports of the two fires. He kept sitting at his shop. After about 15/17 minutes, the dacoits passed by that way and be saw them. According to P. W. 4 Nawaza, he along with Noora were bringing vegetables on camels towards B4thawalnagar. When they reached Chabiana Rest House (near to the railway station) at about midnight, they had seen the four persons. Mali accused was armed with a gun while Bashir son of Sultan and Bashir son of Chakar were armed with dangs. They were going towards the canal. When he reached the shop of Noor Muhammad P. W., he came to know that a dacoity had been committed at the railway station.

5. As already mentioned P. W. 13 Sayed Akhtar Ali Munir, Tehsildar, Bahawalnagar, held the identification parade on the 1st of July 1965. In his presence M. S. Sattar, the Station-master had correctly identified all the four accused. But it appears that the Station-master had died before he could be examin ed by the Court. Abdul ShakoorP. W had also correctly identified all the four accused both in the Court and also at the identification parade. The other two winesses Noor Muhammad and Nawaza did .not, at all, identify any of the accused.

6. P. W. 5 Sultan, a witness of the recovery, has deposed that he had joined the investigation when Bashir son of Sultan accused pointed out to a spot in. the canal where he had thrown the receiver of the telephone. The police asked Ghulam Rasool P. W. to search for the same in the flowing water and after search he took out the receiver from the canal near the place pointed out by the accused. P. W. 6 Ghulam Rasool has supported this version. P. W. 7 Ghulam Niaris another witness of the recovery. He has, however, stated that the receiver was recovered from the spot at the instance of Bashir son of Chakar. The memo prepared at the time in this connection is Exh. PH and is signed by these witnesses. It shows that the recovery of the receiver was made at the instance of Bashir s6n of Sultan. It is clear that P. W. 7 Ghulam Niaz had made a mistake in his statement in Court In saying that the recovery was made from Bashir son of Chakar. This appears to be a share lapse of memory on his part. But there is nothing on this record to show that the receiver Exh. P. 4 recovered from the canal was the one removed by the dacoits from the booking office. The prosecution has failed to produce any witness to identify the same.

7. After recording the evidence, the learned Additional District Magistrate, Bahawalnagar, found all the four accused guilty of the offences for which they were charged. It was established to his satisfaction beyond all doubts that all the accused had committed robbery at the Railway Station Chabiana and robbed away the State property. I have heard the learned counsel for the appellants. He has very strongly contended before me that under the circumstances of this case it was not at all possible for the eye-witnesses to have seen the accused at the dead of night from a distance and identified them later. But as regards P. W. 2 Falak Sher, he was sleeping at the railway station at the time and was awakened by the dacoits who had demanded the keys from him. He made no mistake in identifying Mali accused who was then armed with a gun. He had identified Bashir son of Chakar at the identification parade on the 1st of July 1965, but was unable to identify him in the Court. Instead he had identified Bashir son of Sultan whom he could not identify previously. This causes a grave doubt on the identity of the three other companions of Mali who had participated in the offence. It is true that P. W. 1 Abdul Shakoor had correctly identified all the four accused both at the identification parade and in the Court below as well. But accord ing to his statement he had seen the accused from a distance of 8/9 karams when they were running away from the railway station at the mid of the night. In my opinion it shall be unsafe to base the conviction of all the four accused on the statement of this witness without the corroboration. The learned counsel for the appellants has, In this connection, relied upon the Medical Jurisprudence and Toxicology by Modi, 1963 Edition, page 60, to show that in questions regarding the amount of light sufficient for recognition of the features for subsequent identification of the individual, according to Tidy, the best known person cannot be recognized in the clearest moonlight beyond a distance of seventeen yards colonel Barry, I. M. S. is of opinion that at distances greater than 12 yards the stature or outline of the figure alone is available as a means of identification. To define the features even at a shorter distance is practically impossible by moonlight. In this case the other two witnesses of the occurrence, namely P. W. 3 Noor Muhammad and P. W. 4 Nawaza were both unable to identify any of the accused at the parade. But in my opinion the Court below has failed to attach any importance to this part of the case.

8. I have no reason to doubt the testimony of P. W. 2 Falak Sher. He had no reason to falsely implicate the accused in the offence and he made no mistake in identifying Mali, as one of the accused, armed with the gun. From it he had discharged the two shots into the air. But as regards the true identity of the other three accused this has become doubtful. The evidence against them is ocular and in the circumstances explained above it is unsafe to base any conviction on it.

9. In this appeal no other point was argued before me by the learned counsel for the appellants at the hearing. The loss of State property by the robbery was not even doubted before me. For the reasons discussed above, I accept this appeal of the three accused, Bashir son of Sultan, Bashir son of Chakar and Neka and giving them the benefit of doubt set aside their sentence and conviction under section 392, P. P. C. They are accordingly acquitted. If not otherwise wanted by the police in any other case they shall be released forthwith. But I find no force in this appeal by Mali appellant and the same is dismissed. Appeal partly accepted.