1969 PLP 860 (SCMR)

MUHAMMAD SHARIF, J.‑This is an appeal by our special leave from the judgment and order of the High Court of West Pakistan, Lahore, dated the 22nd of March 1956, by which the appeal of six appellants against their conviction under section 396, Pakistan Penal Code, was dismissed, but the sentence of death passed upon each was committed to transportation for life, except in the case of Shafi upon whom the sentence of death passed by the trial Court was confirmed. Early in the morning of 28th of December 1954, three pedlars, viz. Rehmat Ali, Shams Din and Bundu, started out from their house in the city of Jhang for the Railway Station to catch the 4‑00 a.m. train for Sargodha. Each carried a bundle of cloth. They had gone about 11 furlongs from their house when near Chah Tootanwala they were waylaid by six or seven persons. The assailants were armed with sticks and one of them had a fire‑arm. The bundles of cloths were attempted to be snatched away. A struggle ensued in the course of which the fire‑arm was used and Rehmat Ali was hit and he fell down upon the ground. Shams Din also received injuries with a stick. The bundles of cloth were taken away as also the purse belonging to Shams Din which contained two currency notes of Rs. 10 each and a one‑rupee note together with the vouchers relating to the purchase of cloth from Munshi Khan. A report of the above facts was lodged by Shams Din at the Police Station Maghiana at 4‑15 a.m. The assailants were unknown, but it was claimed that he would be in a position to identify them. It was further mentioned that from their talk the dacoits appeared to be men of the locality. Ali Nasir, A. S. I., reached the spot within an hour of the occurrence. Rehmat Ali was lying wounded and he was sent to the hospital. His statement was recorded in the hospital at 10‑25 a.m. in which the version given by Shams Din was repeated. Rehmat Ali died soon after and his statement was treated as a dying declaration. The injuries on the person of Shams Din were duly noted. Some trackers were called. The forward tracks of six persons were seen proceeding to Jhang Lyallpur Road and the Sub‑Inspector following the backward tracks also reached the same point near the grave of Mai Hir. The following day, the marks of a tonga were discovered and it seemed to have taken a sharp turn towards Mochiwala. The markings were rather distinctive and some peculiarities were noticed in the impressions of the hoofs of the horse. For three, days, no trace could be found of the culprits or of the tonga. On the 3rd of January 1955, in consequence of some information, the tonga was traced to Chak No.

183. It was standing in front of the house of Lai son of Allah Ditta appellant. Lai himself was not available. He was produced the next day. The horse was also taken into possession: Lai's interrogation furnished a clue to the other accused. By the 7th of January 1955, all the accused were secured and sent to jail at Jhang. A further remand was .obtained and proceedings for holding an identification parade were initiated. The parade was held on 9th of January 1955. Shams Din correctly identified Muhammad, Haq Nawaz, Nasiri, Lai son of Karam and Muhammad Shall as the persons who had committed the dacoity. He, however, failed to identify Lai, son of Allah Ditta. Bundu, the other companion of Shams Din, could identify only Nasiri and Haq Nawaz. Four other persons were wrongly picked out by him. The footprints of the dacoits were also got identified. On the 10th of January 1955, the accused were taken back into police custody and were put 'in the lock up when regular enquiries started. As the result of communications made by the accused on the 15th and 16th of January 1955, the dacoited properties were recovered from their places of concealment. On the 15th of January 1955, Muhammadiled the, police to a place and dug out Exhs. P. 45 to P. 51; Lai produced Exhs. P. 16 to P. 18; Haq Nawaz Exhs. P. 19 to P. 25 and Muhammad Shafi Exhs. P. 52 to P. 58 wrapped in a piece of cloth. On the 16th of January 1955, Nasiri dug out Exhs. P. 26 to P. 32 from inside a wall. A purse Exh. P. 33 was recovered and it contained two currency notes of Rs. 10 each, a one‑rupee note and the vouchers about the purchase of the cloth from Munshi Khan (P. W. 7) as mentioned in the F. I. R. Lai son of Karam produced Exhs. P. 38 to P. 44 tied in a piece of cloth. On 19th of January 1955, Muhammad Shafi pointed out the place wherefrom a rifle Exh. P. 79 was taken out. It was contended by the learned counsel for the appellants that identification of the appellants or the comparison of the footmarks of some of the culprits could not form a safe basis for conviction in a serious crime as there was a reasonable possibility of a mistake; that the recoveries were not proved by independent and disinterested evidence and that, in any case, Lai son of Allah Ditta, who was not identified at the identification parade by either of the victims of dacoity, should not have been held guilty of an offence under section 396 merely because he was subsequently found in possession of a portion of the ‑property which was the subject‑matter of the dacoity. The weight to be given to identification must depend on the circumstances of each case and its value will be enhanced by the presence of 'other corroborative or independent evidence. It cannot doubted that Shams Din and Bundu‑were in ‑a position to see their assailants and more so as they had come to grips with them. As mentioned earlier, Shams Din correctly identified five of the appellants and specifically pointed out Muhammad Shafi as the person who had fired shots resulting in the death of Rehmat Ali. The prosecution evidence is quite consistent on the point that the fire‑arm was carried by one person only. In the first information report as also in the dying declaration, a pistol was said to have been used and during the recoveries, a rifle was obtained at the instance of Muhammad Shafi. In the melee it could not have been easy to distinguish between a pistol and a rifle and Shams Din and Bundu may not have been very observant or may not have had much knowledge of the difference between a pistol and a rifle, but the fact remains that Rehmat Ali was killed at the spot by a fire‑arm and the minor discrepancy as to the kind of the weapon was rightly disregarded by the Courts below. The recoveries in this case are of very great importance. The identity of the property has been fully established and not a single piece of cloth was claimed by any of the appellants as his own. It was suggested in the course of arguments that the property was planted upon the appellants, implying thereby, that nothing was taken away by the dacoits and everything was found at the scene of the attack. This suggestion cannot be accepted. There could not be reason for Shams Din, who made the first information report or for Rehmat Ali, who made his last statement in the hospital, to assert falsely that the bundles of cloth had been taken away by persons whose description was not given and the police officers who reached almost immediately did not find a bit of the cloth described in detail in the F. I. R: The evidence as to the recoveries has been accepted by the Courts below and nothing has been shown which might in any way induce us to re‑assess the value of the same. The recoveries are now beyond challenge and no leave was granted to dispute them. It has been stated before that all the appellants, excepting Lai son of Allah Ditta, were identified by Shams Din (P. W. 9) and all these persons were subsequently found in possession of portions of the dacoited property. The statement .of Shams Din (P. W. ) was, therefore, corroborated 'by the recoveries and significantly enough, his purse, which contained the .currency notes and the vouchers, was also traced in the possession of Nasiri appellant. The conviction of these persons, under section 396 was therefore, perfectly in order and their appeal is ‑dismissed. In the case of Lai, son of Allah Ditta, the only evidence against him is that of recovery from his. possession of part of the stolen property gained by dacoity. As he was not identified to be one of the dacoits, his possession alone would determine his j offence. This would be covered by section 412 of the Pakistan Penal Code. The conviction of Lai son of Allah Ditta is, consequently, altered from one under section 396 to section 412, Pakistan Penal Code. He is awarded a sentence of seven years' rigorous imprisonment. With the slight modification in favour of Lal, son of Allah Ditta, this appeal is dismissed. Appeal dismissed with slight modification.