P L D 1967 Supreme Court 545 (PLP)

The association and the purpose of the association may, of course, be proved either by direct evidence to the effect that the accused, or the accused and others, met and resolved to join together for the purpose of habitually committing dacoity or, in the absence of such direct evidence, it may even be established by proof of facts from which the association may reasonably be inferred. The evidence of the first kind, namely, direct evidence, it is manifest, can in such a case only come from a participant or an associate alone, for, it is unlikely that persons entering into an agreement to join together for the purpose of habitually committing dacoities would do so in the presence of strangers. It is for this reason that it has become the general practice in such cases to get this direct evidence through the mouths of accomplices who are made approvers by the tender of pardon. Such a person is, no doubt, a competent witness against an accused person and under section 133 of the Evidence Act a conviction upon the uncorro borated testimony of such an approver may not even be illegal, but since under section 114, Illustration (b) of the said Act, the Court is to presume that an accomplice is unworthy of credit unless his testimony is corroborated in material particulars, the practice of the Courts in this Sub‑Continent has been so consistent as to harden into a rule of law that the evidence of an accomplice unless corroborated in material particulars by independent evidence, is not relied upon. The extent and the nature of corroboration required may, no doubt, vary from witness to witness and from case to case, but as a rule it is not necessary that there should be corroboration in every particular, all that is necessary is that the corroboration must be such as to affect the accused by connecting or tending to connect him with the crime. In other words, there must be corroboration not only of the commission of the crime alleged but also of the participation of each individual accused charged with the commission of that crime. The corroboration again need not be by direct evidence nor is it necessary that the corroborating evidence should itself be such as to be sufficient to form the basis of a conviction. It is sufficient if it establishes the existence of circumstances from which the connection of the accused with the crime can be reasonably inferred and supports the approver's evidence in such a substantial manner as to make it safe to be relied upon. It is in order to provide such corroboration to the approver's evidence that the practice has grown up, in such cases, to lead evidence of, what has been called, association, general and specific The evidence of general association .is usually of the type that certain persons, who were known as badmashes or bad character in a locality, were often seen moving about together, meeting frequently at the houses of each other, making lavish purchases together or seeking amusement together. Such evidence can at best only lead to the inference that the persons so seen meeting together are associates or fellow‑travellers, but it does not establish the purpose of the association. To do this is adduced evidence of specific association. This generally takes the form of witnesses testifying to having seen some members of the gang meeting at a particular place in groups under suspicious circumstances, proceeding in a particular direction or to a particular village, either immediately before or after a dacoity followed soon after by information of the dacoity itself. Such evidence of association cannot, by its very nature, be of a very precise or definite character and it is, therefore, essential to bear in mind that it may not always be safe to rely only upon the ipse dixit of a witness of this kind unless he is of such a reliable character that neither his veracity nor his memory can be doubted or that his identification of the person or persons so seen by him is of such a nature that it can be implicitly relied upon. Even an honest witness deposing about such chance meetings or hasty observations after the lapse of several years may well make an honest mistake. Extra caution is all the more necessary, for, such type of witnesses are rarely forthcoming in cases of this nature. We, therefore, are of the view that it would be safer when assessing such association evidence to seek for some further confirmation of the oral testimony not only for fixing the identity of the person claimed to have been seen but also his participation in the particular dacoity. The circumstances which may normally be regarded as sufficient for furnishing such confirmation might well be:‑

(1) that the witness had contemporaneously reported this fact to somebody else; (2) that other witnesses also support the testimony; (3) that in the information, if any, lodged with regard to a dacoity the person or persons named by the witness have been shown as accused persons; (4) that the person so named was, in fact, arrested or challaned in that dacoity, and (5) that some article looted in that dacoity was actually recovered from the person named or at his instance. It is not possible to lay down any exhaustive enumeration of the circumstances which may be considered to be sufficient for this purpose but what we wish to impress is that it must not be lost sight of that evidence of such a nature must be scrutinised with care and caution in order to eliminate all chances of false implica tion or even an honest mistake. It is the quality of the evidence and not the mere quantity thereof that counts. It should also not be overlooked that the word used in the, section is "belong" to a gang and, therefore, it is not sufficient to make a person a member of a gang if he is shown only to have participated in one or two isolated dacoities. This word involves the notion of continuity rather than of permanency and suggests that the connection should be of such a long duration as to reasonably warrant the inference that the accused persons had identified themselves as members of a gang. The association, as already stated, to come within the mischief of this section must furthermore be for the purpose of habitually committing dacoity. The word "habitual" also imports a sense of continuity. It would appear, therefore, that generally speaking what the prosecution should endeavour in such cases to prove is that the accused or groups of them had been concerned in a large number of dacoities in a comparatively short space of time. In order to get a conviction under this section one has not to establish actual participation in the commission of dacoities but it is enough if there is some active participation or employment for the purposes of the crime, such as scouting, collecting information, giving warning of approaching police or in some other way facilitating the commission of the crime. Normally in such a case general evidence of bad character in the shape of commission of other crimes or conviction for other crimes, such as thefts, burglaries, etc., although inadmissible as evidence of character, may be admissible to prove habit or association. In this case even previous acquittals in cases of dacoity or for being in possession of goods stolen in a dacoity may be relevant for establishing the association of the accused with the gang. We are not unmindful of the fact that by reason of the riverine nature of many of the districts of the Province of East Pakistan the incidence of dacoity in that Province is unusually high and that more often than not such crimes remain undetected due largely to the failure of the witnesses to identify the dacoits but at the same time we cannot agree that even these difficulties can furnish any justification for the non‑observance of the rules relating to appreciation of evidence in criminal cases or that the same should in any way be relaxed. These rules have been designed to secure for accused persons the assurance of a fair and impartial trial and practical difficulties notwithstanding the standards which have been laid down for the safe dispensation of criminal justice, cannot be altered or deviated from to meet the difficulties of the investigating agencies fn the Province. In spite, therefore, of the difficulties pointed out to us and to which we are fully alive we cannot approve of the tendency, displayed in such gang cases to too readily accept the ipse dixit of the witnesses of association and to draw inferences from them which do not always follow. Finally the evidence of association by itself, even if believed, it must also be remembered, may well be insufficient, as pointed out by the Federal Court in the case of Dalilur Rahman Chowdhury and others v. The Crown (Criminal Appeal No. 59 of 1954 unreported,) if it does not tend to show that the approver's statement that certain dacoities were committed by the accused persons was true. With these general observations we now proceed to consider the cases of the appellants, other than Ramzan and Chand Mia, whose appeals, as already stated, have abated. In this case the prosecution has adduced a vast volume of evidence to establish that the alleged gang was responsible for some 194 misdeeds, of which 102 were dacoities, 7 were robberies, 4 were attempts to commit dacoities, 2 were assemblies for the purpose of commission pf dacoities and 23 were mere reparations for dacoities. The rest 59 consisted of house burglaries with thefts and 18 thefts from railway wagons. The prosecution left out one train theft as in respect of it no evidence was presumably available. In this large catalogue of occurrences the prosecution has included many, in which neither the approvers nor the accomplices claimed participation or even included them amongst the depredations of the gang. Again, the prosecution has also included 15 incidents which admittedly took place prior to the charge period, namely, April 1942, and 9 dacoities which, according to one of the approvers, Surat Ali (P. W. 2), were not the work of this gang at all but even after excluding these the field of activity of the gang, it will appear, extended from Feni, which is at a distance of about 85 to 90 miles from the headquarters, Bhairab, on the Chittagong side to Narayanganj which is at almost a similar distance on the Dacca side. Some of the dacoities spoken of are indeed so daring that one may well wonder if any law and order at all prevailed in this area at the time. Some of the dacoities now being disclosed by the witnesses were not even reported to the police at the time they are alleged to have taken place, although eye‑witnesses are now coming forward to claim that they even recognised some of the dacoits. The explanation given for this is that the witnesses were so overawed by the reign of terror prevailing at the time that they dared not disclose the names of the dacoits, even though in some cases they had actually recognised them. The Courts below have accepted this explanation and taken into account the evidence given many years after the occurrences to hold that even those dacoities which were never reported to the police did actually take place. The appellants, of course, did not challenge that dacoities did, in fact, take place, as they disclaimed all knowledge thereof, but their case was that they were not responsible for them either individually or as members of any gang or that they belonged to any such gang. Such a large number of dacoities could not possibly have been committed by any single organised gang over such an extensive area, They were possibly sporadic offences in which local Badmashes or local groups of dacoits may have participated but they could not be recognised and, therefore, either no prosecutions were launched or those that were launched failed. The trial Court has, of course in an elaborate judgment first discussed the evidence with regard to each dacoity and then tried to marshal the evidence against each individual accused but we do not think that any useful purpose will be served by repeating that procedure, for, the main question before us is as‑to whether these were the work of any particular gang and, if so, whether the appellants were members of that gang? We would therefore, deal with the cases against each of the appellants separately but before doing so we would like to indicate that since the main evidence upon which the existence of the gang is sought to be established is that of the three approvers and the four accomplices, we fail to appreciate how, if they have not ascribed an incident to the gang, the evidence of such an incident can be treated as affording corroboration to the evidence of the approver, or accomplice. The incidents, which are alleged to have taken place prior to the period of the charge, have rightly been excluded by the Courts below and we too shall not take them into account. But as regards incidents about which no reports were lodged with the police we cannot agree with the Courts below that they can be taken into account. If a person never lodged an F. I. R. about a dacoity in his house how can his veracity be accepted after 8/10 years, when he comes forward to assert that such a dacoity did, in fact, take place in his house. The evidence of such incidents j must, in our view, be treated with great caution and unless confirmed through extremely reliable independent evidence should not be acted upon. There is another important fact which must be kept in mind while assessing the evidence in this case, namely, that none of the approvers or accomplices implicated either their leader Ramzan or his two sons Lal Mia and Chand Mia or his brother Shahjehan in their confessional statements. They brought them in only subsequently when giving evidence in Court. The explanation for this is that as Ramzan, his sons and brother had not been arrested by then, they were afraid to implicate them knowing that in the past whoever opposed them did not remain alive for long. This explanation does not, however, impress us, for, after the approvers had been arrested they could have no reason to be afraid of Ramzan or his relations, because, until they were granted pardon they would have remained in police custody and neither Ramzan nor his near relations could have caused them any harm there. In our view, this is an important omission from the confessional statements of the approvers of which Ramzan and his near relations are legitimately entitled to take advantage. As for the accomplice evidence it has to be pointed out that P. W. 4 Ahsanullah on his own statement did not become a member of this alleged gang and did not participate in any dacoity alleged to have been committed by the gang. If, as he states, he gave up his association with Ramzan before the gang came into existence it is difficult to accept that his information about the formation of the gang could have been either first‑hand information or that he could have known all the members of the gang. It is not surprising, therefore, that he should have failed to identify a large number of the important members of the gang including Shahjehan, the step‑brother of Ramzan. So far as Kadir (P. W. 5) is concerned it is an admitted fact that he was arrested as being a member of this very gang itself and was kept in detention for 10/15 days. He claims that he remained a member of the gang up to the end of 1942 but in those 4 years he participated only in two dacoities and in a meeting for another one. It is said that he has come to depose being repentant. If this really be so it is difficult to appreciate why he was not produced before a Magistrate to have his con fession recorded and later made an approver granted pardon. Similarly Suruj Ali (P. W. 6) claimed that he repented and gave up his connection with the gang after participating in only two dacoities, the last of which, namely, the Sipri flat dacoity, it is alleged, took place on the 31st of May 1943. Neither Kadir it (P. W. 5) nor Suruj Ali (P. W. 6) could identify all the accused charged in this offence, and it is not without significance that Suruj Ali failed to identify even Lal Mia, one of the sons of Ramzan. Again Abdur Razzak (P. W. 7) on his own admission never became a member of the present gang, although he was arrested and detained in custody for nearly five months in connection with the train dacoity between Talshahar and Ashugang which took place on the 14th of September 1948. He also purported to give evidence with regard to this very train dacoity as an eye‑witness. In the case of this witness if he was not a member of the gang then we find it difficult to follow the reasoning of the trial Court that he must nevertheless be treated as a natural witness because he was a member of the former gang of Ramzan. We cannot help looking at the evidence of these accomplices with great suspicion. If they were not members of the gang they merely gave evidence of association. On the other hand, if they were members of the gang, then they should have been made approvers and not examined merely as accomplice witnesses. The veracity of these accomplice witnesses is open to serious doubt. We might also mention here that the evidence discloses that Ramzan was convicted in 1926 in a case of abduction under section 366, Pakistan Penal Code, read with section 457, Pakistan Penal Code, and was sentenced to rigorous imprisonment for seven years. It further appears that he was actually arrested after the Daulatkandi train dacoity No. 1 which took place on the 27th of November 1942, and again after the Lalpur boat dacoity which took place on the 21st of July 1943. Again, he was involved in a case under section 110 of the Code of Criminal Procedure, which remained pending from March to August 1944, and in August 1946, he was arrested for the murder of Jabbar and was kept in detention till June 1947. While in detention he became a victim of rheumatism and was so badly affected that even according to the prosecution he could not participate in any dacoity committed after 1947. He was afterwards discharged in all these cases but these facts certainly do not support the prosecution story that Ramzan enjoyed complete immunity during this period. We would also like to mention here that even the evidence of specific association adduced in this case, though voluminous, is of an extremely vague, indefinite and stereotype nature. All that these witnesses state is that they saw some of the appellants meeting either in the house of Ramzan or Jabbar or at some road‑side or near some Ghat or railway station or moving about together. There is no evidence that they ever reported these meetings to any responsible person. A few, who have stated that they did inform others of such meetings, are careful enough to name only such persons as are now dead and cannot be called either to confirm or to contradict them. There is also nothing in this mass of evidence to show that the circumstances in which the appellants were seen did, in any way, give rite to any curiosity or suspicion. There is also nothing in this evidence to show that the alleged gang had any kind of fixed rendezvous. The purpose of such evidence is to lead to the inference that the habitual meeting or collection in groups of suspicious character, is so consistently followed by the report of a dacoity that the two cannot be without some causal connection. In the circumstances it is usual to bring on the record some more facts, such as the subsequent affluence of the suspected participants in the dacoity or their disappearance from their respective villages or some other unusual behaviour to complete the chain of circumstances. There is no evidence of this nature in the present case. Apart from this a large number of these witnesses have even failed to identify the members of the alleged gang in the dock. In the circumstances, we consider this evidence of association to be of an extremely weak nature and by itself this evidence, in our opinion, establishes nothing. We are unable, therefore, to place any credence on such evidence unless it has received further confirmation: With these observations we now proceed to examine the argu ments advanced before us. The learned counsel appearing for the State has assisted us by taking us through the evidence only in respect of those appellants whose cases he considered to have been adequately and convincingly proved. He has also prepared a chart of the evidence for the use of the Court but on examina tion we find that the chart is far from accurate and cannot safely be relied upon. The learned counsel engaged at State expense to support the appeals of the appellants has, on the other hand, stated that be does not wish to go into the evidence but would confine himself to general arguments relating to the inherent improbabilities of the case. His first contention is that the gang set up in this case was a figment of the imagination of the investigating officer for, indeed it is extremely improbable that any single gang of dacoits could have operated over such an extensive area ranging from Feni in Noakhali District to Narayanganj in Dacca District or for such a prolonged period of ten years. The possibility also of Ramzan and Jabbar joining hands was so remote that it would indeed be a miracle that two persons so bitterly opposed to each other would join together for the commission of dacoities. At any rate, even if it is accepted that such a gang came into existence then, after Ragazan and his sons Chand Mia and Lal Mia, and his stepbrother Shah Jehan were actually arrested and prosecuted for the murder of Jabbar, one of the essential elements of a gang, namely, continuity, was clearly broken. The same gang could not and did not subsist after that. It is next urged that the evidence of the approvers should be totally discarded, for, they are deliberate liars and procured witnesses. Their evidence is not only tutored but is extremely contradictory and discrepant. So far as P. W. 1 Nidhu is concerned, although he was shown as arrested in this gang case on 15‑1‑52 and produced for recording his confession on 16‑1‑52, it has transpired in evidence that he was arrested much earlier for assaulting Daloo, the appellant in Cr. A. No 21‑D of 1963. The other two approvers, namely, Surat Ali (P. W. 2) and Kali Mohan (P. W. 3), were arrested on 30‑8‑51 and 8‑11‑51 respectively, but were not produced for recording their confessions until 1‑9‑51 and 20‑11‑51 respectively. This, it is suggested, clearly shows that the prosecution had enough time to tutor each one of them. According to the defence the approvers were all along also under the control of the prosecution, for, they actually received regular financial help and support from the police and the Government throughout the period of the trial. A great deal of comment has also been made on the fact that none of the approvers implicated Ramzan, his sons and step brother in their confessional statements, although they brought them in at the time of giving evidence in Court several years later. Learned counsel for the defence has also criticised the evidence of association, both specific and general, as being of an extremely unsatisfactory character. According to him, implication at such a belated stage merely on such association evident could be wholly unsafe, unless such evidence is supported by contempo raneous identification of the participants of the dacoities deposed to by those witnesses or by recoveries made from the persons implicated or at their instance. There is a great deal of force in these general contentions. As we have already indicated earlier, the need for caution in a case of this nature cannot be over‑emphasised. The approvers themselves, it cannot be disputed, have been seriously contra dicted by their confessional statements. This is not a case of mere omission. They not only did not implicate Ramzan, his two sons and his stepbrother as members of the gang in their confessional statements but, in fact, Nidhu (P. W. 1) therein clearly stated that the "leader of that gang was Jabbar of Kalipur. He is dead. .. Jabbar led that gang for 5/6 years. Thereafter Akel Ali became the leader of the gang. We all acknowledged him as leader." Similarly P. W. 2 stated that "Lalu Mistry, Chand Mia, Sona and Akel Ali upon consultation took us in their party to commit dacoity. We were 150 persons in that gang." So far as Kali Mohan (P. W. 3) is concerned he associates himself with Kala, the appellant in Cr. A. No. 56‑D of 1963 and his brother Ansar, the appellant in Cr. A. No. 30‑D of 1963. He does not mention either Ramzan or his relations or even Akel Ali. In fact, his confessional statements seem to indicate that he belonged to a much smaller and a different gang consisting of 15/20 persons. An approver is always an unreliable person, for he is betraying his erstwhile associates. His evidence itself needs corroboration not only with regard to the offences deposed to by him but also with regard to the complicity of the persons sought to be implicated by him. We are unable, therefore, to agree with the learned counsel for the State that if an approver has been corroborated with regard to the details of an incident described by him by independent reliable evidence then that should by itself be sufficient also to accept that all those persons whom he has implicated in that incident must also have taken part therein. The possibility of the approver falsely implicating his enemies must be carefully guarded against. Keeping these features of the evidence in view we now proceed to the discussion of the individual cases. (After dealing with each in4iddual appeal the judgment proceeded) Before parting with this case, however, we cannot help observing that we have been compelled to enter upon an exami nation of the evidence in this case, as neither the trial Court nor the High Court had followed any consistent principle or examined the evidence with the care that was expected in a case of this magnitude. In some cases the accused were held to have partici pated in a dacoity when they were clearly under arrest and could not have so participated. In some cases the evidence has been misread and in several cases the Courts below have clearly become confused between different accused bearing similar names. The High Court, which was the final Court of facts, again unfortu nately did not examine the evidence at all in respect of a large number of the appellants before it purely on the ground that their appeals had been pressed only on the ground of sentence. In a criminal appeal, whether the appeal is pressed or not, it is the duty of the High Court to examine the evidence on the record. The findings of the Courts below based purely upon association evidence cannot also, in our view, be considered to have been arrived at upon sound principles or principles con sistent with the safe dispensation‑ of criminal justice even in a case of this nature. In view of the above we have been compelled to re‑examine the evidence ourselves and upon such examination we have come to the conclusion that in a large number of cases the concurrent findings of the Courts below are clearly unsupportable. In a case of this magnitude, which was made more compli cated by reason of a number of the accused persons and witnesses bearing the same names the chances of confusion had to be guarded against but we regret to find that the Courts below have failed to exercise that degree of care and caution in analysing the evidence which the nature of the case demanded. We are, in the circumstances, also unable to endorse the certificate which the High Court has granted to the trial Court. A. H. Order accordingly.