P L D 1964 (W (PLP)

11. On the 22nd of November, a parade was held at the Sub‑Jail, Jacobabad, by Mr. Din Muhammad, Head Munshi and Magistrate Third Class, for the identification of the three appellants. This witness was not produced at the trial, but the Sub‑Inspector stated that Narain Das correctly picked out Mir Hasan and Qalandar Bakhsh, while Dharmi identified Qalandar Bakhsh and Ali Murad.

12. Two days later, on the 24th of November, a track parade was held by the same Magistrate at which the three appellants were mixed up with other persons and Hashim tracker picked out the foot‑prints of Ali Murad only.

13. The appellants pleaded not guilty and ascribed the case to enmity, Qalandar Bakhsh and Mir Hasan alleging that they had been falsely implicated at the instance of one Nabidad Khan. Both admitted having made the judicial confessions, but contended that the statements had been extorted from them under pressure by the police, who had called and detained their women folk. Ali Murad admitted having pledged ten walis with Seth Bat Chand, but stated that they belonged to his mother. He denied having sold any walls to Lal Chand P. W. and alleged that he had been implicated by Qalandar Bakhsh and Mir Hasan as the latter are the haris of his enemy Gulab Khan. All three appellants admitted that identification and track parades had been held, but the defence position is that the appellants had been shown to Narain Das and Dharmi at the hospital, while their footprints had been obtained before hand by the police. No evidence was led in defence.

14. I shall first deal with the case against Qalandar Bakhsh and Mir Hasan. The learned Additional Sessions Judge did not accept the results of the identification parade in respect of these appellants as reliable in view of the admission of Narain Das at the trial that the police had shown him the appellants at the hospital. It may be added that Dharmi had made a similar state ment before the committing Magistrate though, on being con fronted with it, she pleaded ignorance of having made it. So far as the track parade is concerned, Hashim tracker did not identify the footprints of these two appellants.

15. The case against Qalandar Bakhsh and Mir Hasan thus rests exclusively on their retracted confessions. The learned Additional Sessions Judge has relied on this evidence, but I am unable to agree with him. The position relating to retracted con fessions has been thus laid down in Monir's Law of Evidence, 4th Edition, at page 212 of Vol. I. After discussing the value of retracted confession against a co‑accused, the learned author remarks As against its maker, however, a retracted confession may constitute a sufficient basis for conviction, provided it is true and voluntary, though even in such a case it is safer and usual to require corroboration. Adopting the rule of caution referred to above, I am of the opinion that it would be entirely unsafe to convict Qalandar Bakhsh and Mir Hasan on this evidence alone. Not only is corroboration' lacking, but the facts throw some doubt on the truth of the confessions. The contention of the learned counsel for the defence that the confessions only set out what was already known to the police is by no means without substance. As already pointed out, Qalandar Bakhsh's statement makes mention of only twelve walis, ten recovered from the person of Dharmi and two from that of Narain Das. Mir Hasan no doubt mentions that two karis were also taken from Dharmi, but Narain Das clearly stated at the trial that the number of walls of which Dharmi was robbed was not ten but fourteen, and the confessions give no indication of what had happened to the missing orna ments. 16. 1 also agree with learned counsel for the defence that, as there is no honour among thieves, it is somewhat unlikely that Qalandar Bakhsh and Mir Hasan should have remained behind and left Ali Murad to go off to dispose of the ornaments. I am also not inclined to believe that Qalandar Bakhsh and Mir Hasan would have allowed Ali Murad's conduct in keeping back at least two gold walis and the silver karis to pass unchallenged.

17. It may further be mentioned that the atmo3phere of the learned Magistrate's court‑room was not exactly conducive to the making of a free and voluntary confession. Mr. Muhammad Usman stated in cross‑examination at the trial :‑ " My Court has a window on the side of verandah. It has glass panes. Police Patrol occasionally as there is only one cell opposite my office. That police is not concerned with cases but only with judicial lock‑up. The other cell is in north of court room and the remaining six or seven are in the south of my court‑room. Guard‑room is two steps away."

18. Whether or not the police were concerned only with judicial lock‑up, the sight of a policeman patrolling up and downy was scarcely calculated to reassure the appellants.

19. For the above reasons I am of the opinion that the prosecution have failed to establish their case against Qalandar Bakhsh and Mir Hasan beyond reasonable doubt. I accordingly accept their appeal, set aside their convictions and sentences, and acquit them. Their bail bonds are discharged.

20. Coming now to the case of Ali Murad, I am of the opinion that his participation in the robbery is also not conclu sively proved. The first point calling for comment in this connection is that Muhammad Alim P. W. has admitted that he was acquainted with Ali Murad and knew his name. If this is so, I find it difficult to believe that after having taken the trouble of giving a false name to Narain Das and Dharmi, Ali Murad would court exposure by accompanying them to a person who was aware of his real identity. This part of the story does not ring true.

21. Muhammad Alim further stated at the trial "On the next day I came to know of the robbery of Oads. Oads had come to Tajodero Thana. Oads told me this. I told Oads that Ali Murad Rind had come with the complainant. In cross‑examination he also stated that Narain Das and Dharmi were accompanied by the police on the occasion of the above visit. Accepting his statement as correct, it follows that the police learned of the identity of Ali Murad on the 13th of November. Muhammad Umar, S. H. O., on the other hand, states "On 17‑11‑61 accused Qalandar Bakhsh and Mir Hasan surrendered. I interrogated them. I went to the village of Ali Murad. Accused Ali Murad came and I interrogated him." This carries the clear implication that Muhammad Umar did not learn the identity of Ali Murad until he came to interrogate Qalandar Bakhsh and Mir Hasan on the 17th of November, which is completely inconsistent with the evidence of Muhammad Alim that he had given this vital clue not only to Narain Das and Dharmi, but also to the police accompanying them, four days earlier.

22. Taking the above facts into consideration, it appears to me that the position adopted by Muhammad Umar is correct, and that it was only on the 17th of November that the identity of Ali Murad became known. If this is so, Muhammad Alim has deliberately perjured himself, and the question arises why he should have done so. The learned Additional Sessions Judge considers Muhammad Alim to be a completely independent witness, but I cannot agree. By his own admission he is the servant of Gulab Khan, already referred to. He must, therefore, have been familiar with Gulab Khan's affairs, but when asked whether there was any enmity between Ali Murad appellant and Gulab Khan, he pleaded ignorance. Reference may here be made to the statement of Khudadino (P. W. 8), the only recovery witness produced apart from the Sub‑Inspector. Khudadino is Gulab Khan's neighbour, but when asked whether there was any murder case against some relations of Ali Murad appellant, he also pleaded ignorance. The fact of the murder case in question is clearly established, learned counsel for the defence having called my attention to Bacho and others v. The State (P L D 1963 Kar. 891) In that case ten accused, including Ali Murad son of Nakeef Rind, were charged with conspiracy to commit the murders of two persons, Noor Muhammad and Nazar Muhammad. Ali Murad and. six others were acquitted. Paragraph 5‑A of the judgment shows that the case of the three appellants was that they had been implicated at the instance of Gulab Khan, a prosecution witness, while in paragraph 13 the learned Judge observed Although attempts have been made to deny his presence at the scene with the police, Saifal, Exh. 17 has admitted that Gulab Khan was their nekmard and had come to the scene with the arrival of the police and Gulab Khan told the police that Arbab, Jumo and Sadoro were the culprits and that they should be arrested. Besides S. H. O. Barkhurdar, P. W.19, who recorded the further statement‑of Allahrakhio, has admitted that P. W. Allahrakhio had said in his further statement that he had given the names of Ali Murad and Arbab on account of previous enmity Since the question whether there was enmity between Ali Murad and Gulab Khan is a relevant fact in this case, the judgment referred to above is admissible as tending to show the existence of that enmity. On the basis of the above facts I am unable to hold that either Muhammad Alim or Khudadino is an indepen dent witness.

23. The learned Additional Sessions Judge has relied upon the retracted confessions of Qalandar Bakhsh and Mir Hasan as evidence of the participation of Ali Murad in the robbery, but it is settled that the evidentiary value of a retracted confession against a co‑accused is small and that the very fullest corroboration of such a confession is necessary, even where the confession is true and voluntary. In the present case I have held, for the reasons already given, that little or no reliance can be placed on the con fessions even against the makers, and their evidentiary value a against Ali Murad is, therefore, nil.

24. Another point which has been overlooked by the learned Additional Sessions Judge in convicting Ali Murad under section 394 read with section 397, P. P. C. is that according t~ the statement of Narain Das at the trial Ali Murad was unarmed. It is well settled that section 149 cannot be invoked for the application of section 397, P. P. C. and that only those accused D can be brought within the orbit of the latter section who are armed with deadly weapons or cause grievous hurt to any person or attempt to cause death or grievous hurt.

25. For the above reasons I set aside the conviction and sentence of Ali Murad under section 394/397, P. P. C., and acquit him of this charge.

26. On the other hand, the prosecution have established the guilt of this appellant of an offence under section 411, P. P. C. Although Khudadino, in view of his connection with Gulab Khan, is not an independent witness, Ali Murad himself admits having pledged ten gold walis with Seth Bal Chand P. W., while an the circumstances I am also inclined to accept the statement of Lal Chand that Ali Murad was the person who sold two gold walls to him. So far as the first of these transactions is concerned, I do not believe Ali Murad's assertion that the walls belonged to his mother. No attempt was made to produce the mother in evidence to support this story, and in the circumstances I accept the identification of the walls in dispute by Narain Das andl Dharmi as correct. I accordingly convict Ali Murad and sentence him to three years' rigorous imprisonment. K B. A. Appeal partly accepted.