P L D 1967 Lahore 1190 (PLP)

13. Amir‑ud‑Din appellant also denied the recovery of the keys Exh. D. I/1‑2 from him. He, however, admitted that wrist watch P.‑2 belonged to him. He also denied that be had led the police to the recovery of Rs. 13,

300. He alleged that his father had also been arrested and he himself was tortured and it was as a result of the third decree methods employed by the police that his father handed over a sum of Rs. 13,300 to the Investigating Officer. He denied that he had accompanied Muhammad Shabbir appellant to Lahore and had paid to Mst. Sharifan P. W. a sum of Rs.

150. He alleged that this case had been brought against him due to the enmity of Mr. Hamza, an M. P. A. He also alleged that before the identification parade he had been shown to the prosecution witnesses.

14. Muhammad Shabbir appellant admitted the purchase of clothes, ornaments, fan etc.; but denied that ornaments P. 10/1‑5 and Exh. P. 11 and a sum of Rs. 5,237 had been recovered at his instance. His allegation was that the Investi gating Officer had opened a suitcase in his house and had found Rs. 3,170 therein along with ornaments. More money was collected by the Investigating Officer, i.e., Rs. 1,500 were taken from Muhammad Ashraf (D. W. 14) and Rs. 400 from the wife of the appellant. This appellant stated that he had been making purchases from a sum of Rs. 8,456 which he had received from Iqbal Hussain (D. W. 13), on account of the sale of a claim. He also claimed that a sum of Rs. 3,170 which according to him was the amount recovered by the Investigating Officer after opening the suitcase was balance of that money. He denied that he had visited Mst. Sharifan P. W. for enjoying the company of the prostitutes. He also complained that he had been shown to the witnesses by the police before his identifica tion parade was held. He further contended that he had in fact been arrested by the Investigating Officer on the 6th of October and not on the 5th of October 1962.

15. The prosecution produced as many as 32 witnesses at the trial. The most material witnesses are Mst. Rehmat Bibi (P. W. 9), Abdul Ghafoor (P. W. 10) and Ali Muhammad (P. W. 11). The rest of the witnesses appeared in support of the statements of these three witnesses. Sufi Rehmatullah, Deputy Record Keeper, Vernacular Record Room Lyallpur (P. W.3) produced file Exh. P. D., containing application Exh. P. D./1, submitted by Amir‑ud‑Din appellant on the 27th of February 1962, for being declared as an insolvent. This application was proved by Mr. Izhar Ahmad (P. W. 28) who was a counsel for the appellant in that case. Amir‑ud‑Din appellant admitted having submitted this application. Mr. Khalid Hussain (P. W. 12), the then Sub‑Accountant in the National Bank of Pakistan, Gojra proved the withdrawal of Rs. 10,000 by Mst. Rehmat Bibi P. W. from her account on the 30th of July 1962, and the deposit by her in that account of the cheque Exh. P. R. for Rs. 20,

000. Muhammad Sharif (P. W. 8), a clerk of Habib Bank Gojra, proved the withdrawal by Mst. Rehmat Bibi P. W. of Rs. 27,000 from her account with that bank. Abdul Majid (P. W. 4) Extra‑departmental Branch Postmaster, Branch Post Office Chak No. 159/G. B. deposed to the entrustment of the registered letter in question to Muhammad Anwar appellant. Dtldar Ahmad (P. W. 15) in a witness of recoveries from various shops made in consequence of the information given by Muhammad Shabbir appellant. The most material witnesses, however, as already stated, are Mst. Rehmat Bibi (P. W. 9), Abdul Ghafoor (P. W. 10) and Ali Muhammad (P. W. 11). They have supported the prosecution story as narrated above.

16. It was argued before me that currency notes were not identifiable and their recovery cannot connect the appellants with the commission of the offences. It was urged on behalf of Muhammad Anwar appellant that there was no evidence that actually Muhammad Anwar had tampered with the letter. It was alleged that the letter had been with the Branch Postmaster himself and the possibility that he might have tampered with the letter cannot be excluded. It was also stated that the mother of the appellant was a midwife and was, therefore, in a position to possess the money that was recovered from the house of the parents of Muhammad Anwar appellant. The genuineness of the identification parade was also attacked. Similar arguments were advanced on behalf of Muhammad Shabbir appellant. So far as Amir‑ud‑Din is concerned, the learned counsel, Mr. Muhammad Sarwar Advocate, took me through the evidence and pointed out that in the letter addressed to the Inspector‑General of Police and drafted by Ch. Muhammad Hussain (P. W. 2), no mention of a third person was made. The learned counsel asserted that it was after the arrest of Amir‑ud‑Din appellant that his name was for the first time introduced as an accomplice of the other two appellants. It was also pointed out that Abdul Ghafoor and Ali Muhammad P. Ws. did not support Mst. Rehmat Bibi P. W. in so far as Amir‑ud‑Din appellant is concerned. Ch. Muhammad Hussain P. W. when cross‑examined, however, stated that a third person had also been named but he omitted to mention him in Exh. P. C. The question whether there could be any conviction under section 120‑B, P. P. C., was also raised, in view of the language of section 120‑A, P. P. C. On this aspect of the case I heard Mr. Aslam Riaz Hussain, Assistant Advocate General, for the State.

17. There is no doubt that there is some confusion in the minds of Mst. Rehmat Bibi, Abdul Ghafoor and Ali Muhammad (P. Ws. 9 to 11) about the date on which the money was with drawn. The withdrawal took place on the 30th of July 1962, but if the registered letter was delivered by Mubammad Anwar appellant on 26‑7‑1962, the date of withdrawal should have been the 27th of July 1962. It is very unfortunate that at the trial no explana tion for this discrepancy was required from these witnesses. The learned trial Judge has attributed this confusion to the extreme simplicity of the three prosecution witnesses, referred to above. That may be so, but it is possible to say that the registered letter may have been delivered to Abdul Ghafoor P. W. on the 29th of July, instead of 26th of July 1962. I have seen the receipt (Exh. P. G.) and find that it is also signed by Muhammad Anwar appellant, who has put 26‑7‑1962, as the date of delivery. Below the signatures of Abdul Ghafoor P. W. the same date has been given in the same hand and I can safely presume that this was in the hand of Muhammad Anwar appellant as well. In the register (Exh. P. E.) of the Post Office, entry (Exh. P. E./2) shows that the registered letter in question was delivered on 27‑7‑1962. Again it appears to the eye that the above date is in the same hand in which date had been written twice on Exh. P. G. Muhammad Anwar had received the letter admittedly on the 26th of July 1962. Since the process of tampering with it and putting the faked letter in it would have certainly taken some time, the probability is that it was not delivered on the 26th of July 1962. It would, therefore, fit in with the probabilities of the case and would be in accord with the statements of the prosecution witnesses if it is held that the registered letter was actually delivered on the 29th of July 1962, and Muhammad Anwar appellant, who was a member of a criminal conspiracy, and was interested in showing promptitude on his part in delivering the letter put in a wrong date, as the date of the delivery of the registered letter. 17‑A. Both Muhammad Shabbir and Amir‑ud‑Din appellants were identified in the identification parades and the contention of the accused that they were shown by the police to the witnesses has not been substantiated. No reason appears from this record as to why these witnesses or the police involved the appellants. The effect of the identification of Muhammad Shabbir was sought to be nullified by the evidence of Muhammad Ashraf (P. W. 14), who stated that before the identification parade of Muhammad Shabbir, he happened to go to the house of the Deputy Superin tendent of Police, where the Investigating Officer, Raja Aurangzeb (P. W. 32) was present with Muhammad Shabbir. An old man, a woman, and a boy were also present. The witness by this statement meant to convey an impression that Mst. Rehmat Bibi (P. W. 9>. Abdul Ghafoor (P. W. 10) and Ali Muhammad (P. W. 11) were present at the house of the Deputy Superinten dent of Police, and there they had seen the appellant. It will appear from what follows that this witness took a prominent part in building up the defence for Muhammad Shabbir appellant, whose brother Muhammad Bashir is a Sub‑Inspector of Police and has friendly relations with him. The testimony of this witness, therefore, in my view does not affect the value of the evidence regarding identification parade.

18. The learned Special Judge has also discussed the evidence of recoveries and before me no serious fault was found with that evidence. All the three appellants are men of meagre means and the recoveries of substantial amounts from them on various dates in October 1962, also clearly points out to their criminality, Muhammad Anwar was a village Postman while Muhammad Shabbir is said to be a labourer in a factory. Amir ud‑Din was involved in financial difficulties. On the 27th of February 1962, this appellant applied to a Court at Lyallpur for being declared as an insolvent. That application was dismissed in default on the 10th of July 1962. In that application he had stated that he was indebted to his wife to the tune of Rs. 5,624/5 and also owed Rs. 400 to Bahadur Khan and Rs. 300 to Master Rehmat Ali. Muhammad Anwar's father was a Potntman in the railway and was retired in the year 1951 after the payment of a sum of Rs. 525 as gratuity. It has not been shown that thereafter he had any source of income. Muhammad Anwar claimed that his mother was a midwife and was earning three to four hundred rupees per month, but no evidence was adduced in support of this bare assertion at the trial. This appellant deposited a sum of Rs. 2,540 with Basbir Ahmad (P. W. 5) soon after the payment of Rs. 37,000 to Muhammad Shabbir appellent by Mst. Rehmat Bibi (P. W. 9). It is too much to believe that Bashir Ahmad will come forward as a false witness and risk a sum of Rs. 2,540 by producing it as having been deposited by Muhammad Anwar. Actually it was a result of a disclosure by Muhammad Anwar appellant that this amount was recovered from Bashir Ahmad P.W.

19. Evidence was led in the defence to show that the father of Muhammad Anwar had been harrassed and compelled to borrow Rs. 1,550 from Niaz Muhammad (D. W. 5) on the 4th of October 1962, vide pro‑note Exh. D. J. and had also mortgaged his house in favour of one Abdul Hakeem on the 10th of October 1962, in lieu of Rs. 1,000 under agreement Exh. D. K. The recovery of Rs. 2,540 was made on the 8th of October whereas agreement for mortgage of the house was made on the 10th of October 1962. Therefore, the money recovered on the 8th of October 1962, had no relation with the money alleged to have been paid on the basis of agreement Exh. D. K. As for the loan of Rs. 1,550 alleged to have been advanced by Niaz Muhammad (D. W. 5) to Allah Ditta (D. W. 7) father of Muhammad Anwar appellant, on the basis of pro‑note Exh. D. J., the scribe or the attesting witnesses of this document were not produced. It is also unbelievable that Niaz Muhammad D. W., who admitted to have no relationship with Allah Ditta D. W., father of Muhammad Anwar appellant, could advance a loan of Rs. 1,550 to a person of such meagre means. I agree with the learned trial Judge that the pro‑note could be fabricated at any time.

20. So far as the recovery of Rs. 6,360 which is said to have been made at the instance of Muhammad Anwar on that 3rd of October 1962, is concerned, the evidence of the prosecution shows that the currency notes of the value of above amount were taken out by the appellant after digging out the floor of on of the rooms of ‑his house. The recovery was attested by Inayatullah (P. W. 13) and Nazeer Ahmad (P. W. 14). The veracity of the evidence of the latter witness was objected to on the ground that he was a tonga driver and had appeared in four or five police cases earlier. The evidence of Inayatullah P. W. and S. 1 Aurangzeb P. W., however, remains unshaken and unassailed this point. The recoveries of these two sums of money have therefore, been proved by the prosecution and this amount being admittedly beyond the means possessed by Muhammad Anwar or his parents, a legitimate presumption can be drawn that the was a part of the ill gotton money which was paid to Muhammad Shabbir appellant by Mst. Rehmat Bibi P. W.

21. A sum of Rs. 13,300 was recovered from Amir‑ud‑Din the form of currency notes from an attache‑case, in whip some clothes of the accused were also found. The attache was opened with the keys found on the person of this appellate. The factum of recovery is supported by the statements Muhammad Siddique and Muhammad Hassan P. Ws. 6 and respectively both of whom were members of the local Union Committee, The defense attacked their evidence on the ground that they belonged to the party of Mr. Hamza, who had litiga tion with the appellant's father. This fact in itself would not be sufficient to make these witnesses perjure themselves in a Court. They may have some political affiliation with Mr. Hamza, but it does not seem plausible that they will go to the length of giving false evidence to please Mr. Hamza even if he had persuaded them to do so. The defence plea is that the money belonged to Ghulam Nabi (D. W. 8), father of Amir‑ud‑Din appellant. Ghulam Nabi stated in his evidence that the police had also taken him' into custody and detained him till 2nd of October 1962, on which date he returned to Gojra. According to this witness, Raja Aurangzeb, S. I. (P. W. 32) reached Gojra on the 3rd of October 1962, with Amir‑ud‑Din appellant in custody and he threatened him with grave consequences. The witness thereupon brought out a suitcase from which a sum of Rs.13,300 was recovered. Raja Auranzeb promised to give him a receipt of this money but this promise, according to the witness, was not kept. The witness on the 24th of October 1962, filed an application before the Additional District Magistrate, Lyallpur (Exh. D. Q.) alleging that he had been tortured and the police had taken away all the cash that he possessed. It is to be pointed out that this application was made to the Additional District Magistrate, about three weeks after the alleged recovery and it may be just a man oeuvre on the part of the defence to utilise this application at the trial in their own favour. It is also to be pointed out that the names of D. W. 9 and D. W. 10, who were produced at the trial in support of the defence, had not been mentioned in that application. It has not been shown that the father of Amir ud‑Din appellant is a man of such an extensive means that he could have accumulated Rs.13,300 The money was recovered from an attach case which was opened with the keys supplied by. the appellant, and some clothes of the appellant were also found in it. This would clearly indicate to the exclusive possession of this money by this appellant.

22. A sum of Rs.5,237 was recovered at the instance of Muhammad Shabbir appellant, on the 8th of October 1962, from a suit‑case opened with the keys which were found on his person. We have also noticed that Muhammad Shabbir after the incident has been squandering money and making all sorts of purchases. It is in the evidence of Hafiz Muhammad Ghulam Rasul (P. W. 24) that this appellant is a labourer in Gojra Textile Factory. There is no evidence that he had suddenly come into opulent circumstances which enabled him to purchase costly clothes and to pay heavy tailoring charges. The explanation given for all these purchases is that he had sold a claim worth Rs.8,456 on its face value to Iqbal Hussain (D. W. 13) on the 12th of June 1962, and it was out of this amount that he had made all the purchases referred to earlier. This plea appears to be a false one for the simple reason that claims are never purchased at par with their face value. The object of purchasing a claim is to save some money and it is common knowledge that these claims are purchased at the rate of 50 to 60 per cent. of their face value. If Iqbal Hussain D. W. had to pay this money to the Settlement authorities, he could have paid this amount directly without going into the formalities of purchasing a claim at its face value. Iqbal Hussain D. W. who is said to have purchased this claim, is a friend of Muhammad Bashir, S. I., who is a brother of Muhammad Shabbir appellant. It appears that it was for reasons of friendly relations that this witness came forward to depose in favour of the appellant and do a good turn to the family. Neither the scribe of the agreement Exh. D. L. and receipt Exh. D. M., which evidenced this transaction of sale nor the attesting witnesses of these documents were produced at the trial. The learned trial Judge has found that this transac tion was not genuine and has given some other reasons also to support this conclusion but I need not reiterate them here.

23. The defence also sought to explain the recovery of Rs. 5,237 from this appellant. It was stated that the police had recovered a sum of Rs. 3,170 from a suit‑case (Exh. P. 5) lying in the house of the appellant. This was the remnant of the sum of Rs. 8456, which was the sale price of the claim said to have been sold by the appellant to Iqbal Hussain (D. W. 13). It is stated that the police got a sum of Rs. 1,500 from Muhammad Ashraf (D. W. 14), who is again a friend of Shabbir's brother. According to this witness he paid this amount to Raja Aurangzeb (P. W. 32) as a consideration for the said Officer refraining from harassing the family of Muhammad Shabbir in future. The case of the appellant further is that some other amounts were also realised by the police from his wife as well as from Iqbal Boot House, Saeed Cloth House and Chand Cloth House. This, according to this appellant, came to a sum of Rs. 5,237, but according to the prosecution was recovered at the instance of the appellant from a suit‑case in his house. 23‑A. I have stated above that Muhammad Ashraf (P. W. 14) is a friend of Muhammad Bashir, S. I., the brother of Muhammad Shabbir appellant. His evidence therefore is to be accepted with caution. The wife of Muhammad Shabbir, and the shop‑keepers from whom the police is said to have recovered the money have not been produced in the witness‑box. The defence version, therefore, does not deserve credit.

24. The recoveries made from the appellants of substantial amounts have been proved and the sources of their income being extremely meagre, the irresistible conclusion is that this is a part of the ill‑gotten money which the three appellants shared with each other.

25. We have in the statement of Mst. Sharifan (P. W. 26) that both Muhammad Shabir and Amir‑ud‑Din appellants had been indulging in nocturnal orgies after the commission of their nefarious crime. They paid a sum of Rs. 150 to this witness as a price of the carnal pleasure that they derived from the two girls supplied by this prostitute. She surrendered a sum of Rs. 100 out of the money paid to her and no reason has been shown by the learned counsel for the defence as to why her testimony which was believed by the learned trial Judge should be discarded.

26. It was alleged on behalf of Amir‑ud‑Din appellant that no third person had been mentioned in the application Ex, P, C., which later on was treated as an F. I. R. Ch. Muhammad Hussain (P. W. 2), however, admitted that a third person was also mentioned before him by the lady but he forgot to mention the same. There is some discrepancy in the statements of P. Ws. 9 to I1 as to how they got to know the name of Amir ud‑Din. We have it, however, in the evidence of Mst. Rehmat Bibi (P. W. 9) that both Muhammad Shabbir and Amir‑ud‑Din represented to her that they will go to Lahore and inform her later about the purchase of the land. It is also in the statements of Abdul Ghafoor and Ali Muhammad (P. Ws. 10 and 11) that Amir‑ud‑Din was standing outside the Habib Bank at Gojra and he told the three witnesses that they should withdraw the money from the Bank as a raid was imminent. Amir‑ud‑Din was later on identified both by Mst. Rehmat Bibi (P. W. 9) and Ali Muhammad (P. W. 11). No question has been put to these witnesses to show that they were inimical to this appellant or had any motive to involve him. The omission of Amir‑ud‑Din's name in Exh. P. C., has been explained by Ch. Muhammad Hussain (P. W. 2). The prosecution, in my opinion, has proved the case against all the three appellants.

27. I may now advert to the question of the legality of the convictions and sentences passed under section 120‑B, P. P. C., by the trial Judge. It was contended on behalf of the appel lants that since section 120‑A, P. P. C., refers to an agreement, no conviction under section 120‑B, P. P. C., could be sustained unless an agreement is proved. Reference was made by the learned counsel for the appellants to Rakhal Chandra Dass and others v. Emperor (A I R 1930 Cal. 647); Emperor v. Picha Kone and others (A I R 1938 Mad. 726) and Emperor v. Aftab Muhammad Khan (188 1 C 649). In the first mentioned case it was held that the fact that a person was an associate of the persons who were party to a criminal conspiracy is not in itself sufficient to provide a founda tion for the conviction of that person. In the Madras case, the accused were found in a temple in the middle of night with house‑breaking implements and some weapons including fire‑arms in their possession. It was held that they were guilty of an offence under section 143, P. P. C., but there was nothing to support a conviction under section 120‑B, P. P. C. In the last mentioned case, which is a Division Bench judgment of the Allahabad High Court, it was held that the offence of conspiracy under section 120‑B is one, which requires detailed and specific proof against each of the accused that he individually participated in a particular design to do a particular criminal thing. 28.The learned Assistant Advocate‑General, whom I heard on this aspect of the case, submitted that it is very seldom that there is direct evidence available with regard to conspiracy. It is a matter of inference from the sequence of circumstances and drawn if an inference from those circumstances can legitimately be that privity between the persons concerned existed to commit an offence or to achieve an object by unlawful means, the offence of conspiracy will be said to have been proved. In this connec tion he referred to the case of Reg v. Duffield and others (Cox's Cr. L C 404), where the nature of the offence of conspiracy was described in the following words:‑ "In these cases the essence of the offence is the combination to carry out an unlawful purpose and the unlawful combina tion and conspiracy is to be inferred from the conduct of the parties. If several persons take several steps, all tending towards one obvious purpose, it is for the jury to say whether those persons had not combined together to bring about that end which their conduct so obviously appears adapted to effectuate."

29. Reference was also made by the learned Assistant Advo cate‑General to the following cases: Punjab Singh Ujagar Singh v. Emperor (A I R 1933 Lah. 977), Benoyendra Chandra Pandey v. Emperor (A I R 1936 Cal. 73), Goloke Behan Takol and others v. Emperor (A I R 1938 Cal. 51) and Keshabdeo Bagat v. Emperor (A I R 1945 Cal. 93). In the Lahore case, referred to above, it was held that though the essence of the offence of criminal conspiracy is agreement between two or more persons to commit an offence or do any of the acts mentioned in section 120‑A in the matters described therein, the finding of criminality in such cases is a matter of inference deduced from the acts of persons concerned, done in pursuance of an apparent criminal purpose in common between them. In the three Calcutta cases, referred to above, it is also laid down that the guilt in a charge of conspiracy is to be inferred from facts and circumstances proved before the Court. Mian Aslam Riaz Husain, also referred to Dur Muhammad and another v. Emperor (A I R 1934 Sind 57), wherein it was held that the prosecu tion cannot be called upon to prove as to when a conspiracy started and when it ended because this must be in the exclusive knowledge of the conspirators themselves. The principle that emerges out of the above authorities is that an agreement as referred to in section 120‑A; P. P. C., is l to be inferred from the facts and circumstances of each case. The offence of conspiracy by its very nature is secretive and surreptitious, and if a rule of evidence, as convassed by the learned counsel for the appellants, is laid down to the effect that an agreement, as referred to in section 120‑A, P. P. C. is to be positively proved, the proof of conspiracy would become impossible. I, therefore, find that there is no force in the contention raised by the learned counsel for the appellants and hold that the appellants have been rightly convicted under section 120‑B, P. P. C., notwithstanding the absence of positive proof of agree ment.

30. As a result of the above discussion, I uphold the convic tions and sentences of all the three appellants on each count and dismiss their appeals..

31. The money recovered from the appellants has been deposited against the fine imposed on them. This money and the amount received by sale of the articles recovered in the case should be paid to Mst. Rehmat Bibi P. W. If the above amount comes to less than Rs. 37,000 (thirty‑seven thousand), the balance should be paid to her from the amount recovered or paid on account of balance of fine outstanding against the appel lants. K. B. A. Appeals dismissed.