P L D 1954 Lahore 179 (PLP)

MUHAMMAD JAN, J.‑--Nami, Anwar, Ghulami, Yaru, Sadiq, Namdar, Sana Ullah and Rafiq were tried on a charge under section 395 read with 397 P. P. C. Namdar, Sana Ullah and Rafiq were acquitted. The other five were convicted and sentenced to seven years' rigorous imprisonment each. They have filed a joint appeal. The facts of the case have been stated in detail by the trial Court and need not be repeated at length According to the prosecution, a dacoity took place in the house of Raja Fateh Khan Subedar (P. W. 3) situated in Chak No.

34. District Gujrat, on 1st July 1952, at about 10 p.m. As the crime was in progress Din Muhammad, Chaukidar of the village, (P. W. 9), went to Police Station Malakwal, situated at a distance of about fourteen miles from the scene of the crime, and made the report Exh. P. M. to the effect that at about 10 p.m. he had heard a sound of firing from the direction of the house of Raja Fatah Khan and on going there he bad seen some people firing from the roof and the courtyard of the house of Raja Fatah Khan. Raja Fatah Khan and the members of his family were wailing and crying. On hearing their out‑cries Fazal Hussain, Amir Hussain and some others belonging to the village reached the spot and he came to inform the police. According to him, there were ten or eleven men engaged in the crime. The report was recorded by Head Constable Fazal Abbas Shah who went to the spot and found about 62 empty and misfired cartridges on the spot. Strangely enough, none of the occupants of the house was found to have any gunshot injuries. Only two of the occupants, namely, Raja Fatah Khan (P. W. 3) and his son Bashir (P. W. 10) had minor abrasions. There were some woman in the house also but they were not injured nor have they been produced as witnesses. One Nur Muhammad (P. W. 8) was produced as an eyewitness of the occurrence but he was not named in the report. Din Muhammad Chaukidar Way asked whether he had named Nur Muhammad in the report and he said that he had; but the Head Constable who recorded his report said that he had not. Bashir son of Raja Fatah Khan was not specifically named in the report but he may be considered to have been included in the members of the family who were stated to have been present. Bashir is about 20 years of age and the evidence is that on seeing the dacoits he had gone and called Amir Husain and Fazal Hussain, He and his father Raja Fatah Khan had seen the dacoits when they entered the house and were in a better position to identify them than the witnesses who came later on and stood at some distance because the dacoits were firing. Bashir was unable to identify anyone of the accused and Raja Fatah Khan, in his anxiety, identified even Sana Ullah who has been acquitted and who, according to the prosecution evidence, had kept sitting in the station wagon in which the dacoits had come to Chak No.

34. Fatah Khan, there?fore, had no occasion to see Sana Ullah but he identified him as a dacoit all the same. His evidence was rejected as undependable. The evidence of identification relied upon by the trial Court is of the other three witnesses, namely, Amir Husain (P. W. 6), Fazal Husain (P. W. 7) and Nur Muhammad (P.W. 8). Nami and Anwar were identified by all three of them. Sadiq was identified by Fazal Husain, Fatah Khan and Nur Muhammad. Yaru was identified by Fatah Khan and Amir Husain. Ghulami was identified by Nur Muhammad only. As the identification by Fatah Khan has been correctly held to be of no value, Sadiq should be taken to have been identified by Fazal Husain and Nur Muhammad; Yaru by Amir Husain and Ghulami by Nur Muhammad. Namdar and Sana Ullah accused who were acquitted were also identified by one witness each but that identification was not consi?dered sufficient corroboration of Muhammad Khan who played the role of an approver in this case without being granted any pardon. The learned counsel for the Crown admits that the case of Ghulami cannot be distinguished from that of Namdar or Sana Ullah and he may also be acquitted. On that principle, if the evidence of Fatah Khan is excluded, as it should be, there remains only one witness, namely, Amir Husain, against Yarn and he must also be acquitted. That leaves three appellants behind, namely, Nami, Anwar and Sadiq. A Gun (Exh. P. 21) is said to have been recovered from the possession of Nami but it has not been said by Abdul Majid Qureshi, Ballistice Expert (P. W. 23), that any of the empty cartridges found at the spot appeared to have been fired from the gun recovered from Nami. Two guns (Exh. P. 7 and P. 22) were recovered from the possession of Sadiq along with some cartridges. Some of the empty cartridges found at the spot were stated by the expert to have been fired from gun Exh. P.

22. This indeed is an incrimi?nating circumstance against Sadiq and would have been enough to convict him if there had been some reliable direct evidence to show that he had participated in the dacoity. The mere recovery of a gun from which some of the empty cartridge cases found at the spot appeared to have been fired does not prove that he had taken part in the dacoity and fired the shots. Someone who had done so might have deposited the gun with him. The only direct evidence in the case was of Muhammad Khan (P. W. 1) who had driven the station wagon in which the dacoits went to commit the crime. He tried to show in his evidence that he did not know that the passengers were going to commit dacoity. He believed that they were going to play kabaddi: But, in the course of his evidence, he used the expression 'we had gone to commit dacoity' and on being asked to explain what he meant by saying 'we had gone to commit dacoity' he had no answer to give and merely kept quiet. He admitted that after the commission of the dacoity he passed by several towns, police B posts and police stations but he never pulled up anywhere to make over the culprits to the police. Not only that, he further admitted that he was examined by the police either in the third or the last week of July, the occurrence having taken place on the 1st of that month, and he did not tell anyone about this occurrence until he made his statement to the police. He was quite correctly treated as an accomplice by the trial Court and his evidence was in need of corroboration. On the corroboration supplied by the evidence relating to identification, the recoveries of the guns and some injuries on the appellants, they were convicted. A number of defects have been pointed out in the evidence of Muhammad Khan by the learned counsel for the appellants. Even the prosecution did not rely upon him and asked for permission to cross‑examine him. The permission was granted and the witness was shown to be a lier not only by the accused but also by the prosecution. The learned counsel for the Crown has stated that he can place no reliance on the evidence of this witness. It is therefore, excluded from consideration and there is no direct evidence left to connect the appellants with the crime. The recovery of a gun from the possession of Sadiq from which some of the empty cartridge cases appeared to have been fired is not sufficient to prove that he had participated in the offence for which he has been convicted. So far as Nami and Anwar are concerned, it is argued on their behalf, that Nur Muhammad, one of the witnesses who identified them, was not named in the first information report. Nur Muhammad's evidence should, therefore, be viewed with suspicion. Apart from this, his evidence suffers from the same defect as the evidence of Amir Husain and Fazal Husain who saw the dacoits at about 10 o'clock at night from a distance and at a time when confusion and panic prevailed. They were asked to identify the appellants on 5th August 1952, i.e., a month and five days after the event. The appellants protested at the time of the identification that they had been shown to the witnesses. Accord?ing to them they had been taken into custody by the police much before the 31st July on which date they were arrested according to the prosecution. Even if they were arrested on 31st July, as alleged by the prosecution, then too there was sufficient time to show them to the witnesses if the police wanted to do so. This delay in the identification of the accused, keeping in mind the conditions in which the witnesses had seen them, was by itself enough to render the identification doubtful. But it is pointed out that these witnesses picked out not only the appellants as the persons who bad committed the dacoity but also some innocent persons who were in no way connected with the crime. This makes the evidence of identification still more suspicious. There are some pellet marks on the appellants except Yaru. Nami, Sadiq and Anwar were asked to explain these injuries and they said that they had received them during the disturbances of 1947. They produced some witnesses who bore similar injuries and they deposed that Nami, Sadiq and Anwar were injured with them during the disturbances. The doctor who examined them on Ist August 1952, exactly a month after the occurrence, said that after a month it is not possible to tell the duration of the pellet marks. Therefore, the prosecution have not proved beyond doubt that the pellet marks on Nami, Sadiq and Anwar appellants were caused in the course of this dacoity. On the other hand, the appellants have not only given an explanation which may reasonably be true but have actually supported that explanation by the evidence of witnesses who bore similar injuries which, they swore, were caused to them along with the accused long before the dacoity. No property alleged to have been stolen from the house of Raja Fateh Khan has been found from the possession of any of the appellants. A couple of finger rings and four ear‑rings were stated to have been recovered from some goldsmiths at the instance of Anwar and Rafiq accused. Rafiq, as already stated, has been acquitted and the evidence relating to these recoveries has been found by the trial Court to be false and fabricated. There is evidence on the record that one of the investigating officers, namely, Sikandar Shah (P. W. 30) had falsely implicated Anwar appellant on two previous occasions in criminal cases but he was acquitted in both cases. In the circumstances mentioned above, the case against the appellants has not been proved beyond reasonable doubt. I, therefore, accept the appeal, set aside the convictions and sentences of the appellants and acquit them all. A. H. ??????????? Appeal accepted.