1969 P Cr (PLP)

A. K. Lakhan for the State. Date of hearing : 3rd April 1969. The appellants were tried with Arbab son of Talib and Yousif son of Yamin under section 395 read with section 412, P. P. C. for committing a dacoity on 2nd December 1965 in village Parno Taluka Chhachro. Two army Persons Naik Abdul Aziz and Sepoy Ghulzar Hussain Shah who took part in the occurrence with the appellants and the said Aziz and Ghulzar have been tried by Court Martial and convicted. By his Judgment dated the 4th October 1957 the learned Sessions Judge, Tharparkar at Mirpurkhas has convicted the first appellant under section 394, P. P. C. and sentenced him to four years' R. I. and he has convicted the second appellant under section 411, P. P. C. and convicted him to six months' R. I. He has also convicted the said Arbab and Yousif under section 411, P. P. C. and sentenced them to a fire of Rs. 200 each or in default to two mouths' R. I. Arbab and Yousif have not filed any appeal against their conviction and sentence, but Ali Muhammad and Alim have filed an appeal against their conviction and sentence, which has now come up for hearing before me.

2. According to the prosecution, the material facts are as follows. On 2nd December 1965 four men came in a military jeep to village Vehari. The four persons included the appellants and Naik Abdul Aziz and Sepoy Ghulzar who have been convicted by a military Court. P. W. Khairo saw them, and the military persons called him and told him to get meals for them. Meanwhile the said Arbab and Yousif came on camels and the military persons ordered them to dismount and hand over the camels, as their jeep had broken down and they had to reach Parno village, P. W. Khairo then went to P. W. Sakhi, a B. D. member and got the meals ordered by the military persons. Then Naik Abdul Aziz and Sepoy Ghulzar Hussain Shah went away with the first appellant and Arbab and Yousif to village Parno. Naik Abdul Aziz, Sepoy Gulzar Hussain Shah and the first appellant were riding on the two camels whilst Arbab and Yousif followed them on foot. At about 5 p.m. they reached Parno village and went to the shop of P. W. Tuljaram. Allahdad and P. W. Rano were in the shop and they were ordered to get out by Naik Abdul Aziz and Sepoy Gulzar Hussain Shah who also ordered Arbab and Yousif to remain outside P. W. Tuljaram's shop, whilst they went with the first appellant into P. W. Tuljaram's shop. It is relevant to observe here that both Naik Abdul Aziz and Sepoy Gulzar Hussain Shah (hereafter called the Naik and the Sepoy respectively) were armed, and after they went into the shop they told the first appellant to shut the door of the shop. Then they and the first appellant beat P. W. Tuljaram and ordered him to hand over cash and bring out the cloth which was in his possession. Accordingly he pointed out the cloth in the shop and told them that there was more cloth in his house which was immediately behind the shop. Therefore, the first appellant and the Naik and the Sepoy went into the house of P.W. Tuljaram and seized the cloth which was tying there. Then they directed P. W. Tuljaram to supply them a horse, which he did, and after that he managed to slip out of the house. Meanwhile, the Sepoy, the Naik and the first appellant commenced loading the material which they had robbed from P. W. Tuljaram on the two camels and on the horse obtained from P. W. Tuljaram. P. Ws. Rano and Ashan saw this as the loading took place outside the shop. After they had completed loading they all went away. Meanwhile, P. W. Tuljaram, who had slipped out of the house, had been warned by Arbab and Yousif that the Naik and the Sepoy had forcibly seized their camels and made them accompany them, therefore P. W. Tuljaram ran‑away and first went to his brother in village Kantio which he reached next morning. His brother advised him to go to Chhachro, so he went to Chhachro, and after meeting Moolshankar, the local Union Council Chairman, lie lodged his F. J. R. the next day, that is 4‑12‑1965 at 9‑30 a.m. at Chhachro Police Station which was recorded by Mazharuddin, A. S.

1. After recording the F. I. R. P. W. Mazharuddin commenced investigation and went to the vardat. Some of these stolen clothes were recovered by him the Text day from Yousif and Arbab (vide Mashirnamas Exhs. 21 and 22). Almost a week later P. W. Mazharudin went with P. W. Pirbho and others to village Kubri where the second appellant took the police to his house and produced some cloth which P. W. Mazharudin secured vide Mashirnama (Exh. 25) of which P. W. Pirbho was one of the Mashirs. P. W. Mazharuddin also arrested lie second appellant, but the first appellant was arrested on 25th December 1965 having been produced before the police by Major Muhammad Sharif at Khanesar Outpost. On 30th December 1965 P. W. Mazharuddin A. S. I. held an identification parade at which Tuljaram identified the first appellant. In due course, after completing investigations, the appellants and Yousif and Arbab were challaned.

3. In their statements in the Sessions Court, both the appellants denied the alleged offences. However, the first appellant admitted his presence at the occurrence, but he said it was the Sepoy and the Naik who had robbed P. W. Tuljaram. His explanation was drat the Sepoy and the Naik had ordered him take them to Parno village, therefore he had taken them to Parno village. But he denied having committed any offence and lid that he bad been falsely implicated on account of enmity he second appellant, who was both the uncle and the father‑in?-law of the first appellant, likewise denied the offence. He said had never been at the occurrence and, alongwith he admitted pat cloth was recovered from his house, he said that it belonged him and his brother Haji Hussain jointly and that it had been purchased by them for Haji Hussain's daughter's wedding. The appellants did not produce any evidence in their defence.

4. I shall first examine the case of the first appellant. He has admitted his identification by P. W. Tuljaram at the identification parade on 30th December 1965 and he has also admitted his presence at the occurrence with Sepoy and the Naik. However, his plea was that he accompanied them on their orders. Therefore, the only question is whether the prosecution have proved his participation in the offences committed by the Naik and the Sepoy.

5. The case of the prosecution against the first appellant is principally based on the evidence of P.W.Tuljaram. P.W. Tuljaram said in his evidence that at about 5 p.m. on 2nd December 1965 he was sitting in a shop with Allahdad and P. W. Rano and he saw two camels corning towards the shop. The Sepoy, the Naik and the first appellant were riding the camels, whilst Arbab and Yousif, who were known to him, were following them on foot. He then said that the Naik and the Sepoy came with the first appellant into his shop and directed Allahdad and Rano to leave the shop and then closed the door of the shop from inside. Then, according to P. W. Tuljaram the Sepoy, the Naik and the first appellant, who had a cane with him, all gave him a beating and ordered him to bring out the cloth which he had with him, therefore he showed them the cloth in the shop and told them that there was more cloth lying in his house, therefore they went with him to his house and seized all the cloth lying there. Then, on their orders, he supplied them a horse and they loaded the stolen material on the camels and the horse and went away, whilst he managed to slip out of the house. This evidence is supported by that of P. Ws. Rano and Ahsan. P. W. Rano has said that the Sepoy, the Naik and the first appellant came into the shop of P. W. Tuljaram and as the Sepoy and the Naik ordered him and Allahdad, who was with him to leave the shop, they went out of the shop and waited. The door of the shop was then shut, but he was able to hear the cries of P. W. Tuljaram, and other persons also collected on hearing these cries. Then the Sepoy and the Naik came out and ordered Arbab and Yousif to load bundles of cloth on the camels, which they did only after they were threatened by the army men with their rifles. Then the first appellant brought out a horse owned by P. W. Tuljaram and then he and the Sepoy and the Naik went away with all the bundles of cloth. P. W. Ahsan said that on hearing noises he had gone to the shop of P. W. Tuljaram and found that a crowed had collected there. He said that after a while the first appellant cone out with P. W. Tuljaram's horse and then the Naik and the Sepoy had bundles of cloth loaded on two camels, which were there, and then they and the first appellant went away with the bundles of cloth.

6. The evidence of P. W. Tuljaram clearly implicates the first appellant and the evidence of P. Ws. Rano and Ashan also proves that the first appellant went away with the Sepoy and the Naik taking away the bundles of cloth from P. W. Tuljaram's shop. The learned Sessions Judge has accepted this evidence as sufficient proof of the first appellant's guilt, but learned counsel for the appellant has criticised this finding on the ground that there was delay in lodging the F. I. R. and that there were discrepancies in the prosecution evidence which have not been considered by the learned Sessions Judge. As to the question of delay, the occurrence took place at 5 p.m. on 2nd December 1965 and the F. I. R. was lodged on 4th December 1965 at 9/30 a.m. The delay is obvious, therefore P. W. Tuijarain's explanation has to be examined. As I have observed, P. W. Tuljaram first went to inform his brother of the occurrence in village Kantio which was 24 miles away. He said that he reached this village the next morning and at night he went by camel to Chhachro where, on the following morning he lodged the F. I. R. But in his cross? examination he had admitted that he had left village Kanto for Chhachro at 3 p.m. and that Chhachro was 25 miles away, therefore he reached Chhachro at 10 p.m. Assuming for the sake of argument that this statement is correct, it means that he spent the whole night in Chhachro before lodging the F.I.R. the next morning, and his explanation that lie first met Moolshankar is not sufficient for explain this delay specially as Moolshankar was not examined. However, whilst in his evidence he said that he went to Chhachro by camel, in the lower Court he had said he had gone to Chhachro by lorry. It means that he must have reached Chhachro long before 10 p.m. on 3rd December 1965. It is obvious that his statement in the Sessions Court that he went to Chhachro on a camel was false and was made in order to explain away the delay. Therefore, I have absolutely no doubt that there was considerable delay in lodging the F.1. R. But whilst this aspect of the case is relevant to the second appellant's appeal, it has no relevance to the appeal against the first appellant. This is because learned counsel for the appellant leas himself relied on the discrepancies between P. W. Tuljaram's evidence in the Sessions Court and his statement in the F. I. R. and has said chat the statement in the F. I. R. should be preferred. As I have observed, in his evidence P. W. Tuljaram said that lie was beaten by the Naik, by the Sepoy and by the first appellant, who had a cane with him. But in his F. I. R. he has not attributed any active role to the first appellant. He leas only said that the first appellant was with the Sepoy and the Naik, and that it was the army persons "who had demanded cash from him, threatened him and robbed him. As the F. I. R. was lodged after much delay, it must have been lodged after proper consideration, therefore it seems to me that P. W. Tuljaram has falsely exaggerated the case against the first appellant in the Sessions Court. But even accepting the version of the facts in the F.I.R. it is clear that the first appellant was with the Sepoy and the Naik, therefore, prima facie he is guilty under section 394, P. P. C. Learned counsel for the appellant stated that, as the first appellant did not take any active part in the occurrence, the statement of the first appellant in the Sessions Court that he was forced to join the Sepoy and the Naik was true should be believed. But the appellant has produced no evidence whatever in support of his plea of innocence. Assuming for the sake of argument that no common intention of dacoity or robbery had been formed before he entered P. W. Tuljaram's shop with the Sepoy and the Naik, he saw the Sepoy and Naik beat P. W. Tuljaram and rob him. Not only did he do nothing to help P. W. Tuljaram, but knowing that an offence had been committed by the Sepoy and the Naik, he went away with them, taking with him the stolen property which was the subject ?matter of the robbery. Further, after he left Porno village with the Sepoy and the Naik he has produced no evidence of his whereabouts, and the only evidence on the record is the statement of P. W. Mazharuddin, A. S. I. that on 25th December 1965 he was produced by Major Muhammad Sharif at Khanesar Police outpost. This means that with full knowledge of the robbery he lead been with the Sepoy and the Naik and been caught with them. In the circumstances it is not possible to believe his story that he had nothing to do with the robbery and that he had accompanied the Sepoy and the Naik innocently. Accordingly, I agree with the finding of the learned Sessions Judge that he was guilty under section 394, P. P. C.

7. I shall now consider the case against the second appellant. It is admitted by the prosecution that the second appellant was not present at the occurrence, nor is it even alleged that he was near Parno village when the robbery took place. However, the prosecution case against him is based on the allegation that he was in the military jeep which came with the first appellant, the Sepoy and the Naik to Verhari village, and that more than a week after the occurrence some of the cloth stolen from P. W. Tuljaram's shop was produced by him before the Police prior to his arrest. The first allegation is based on the evidence of P. W, Khairo and Sakhi. P. W. Sakhi has said in this con?nection that on the afternoon of the occurrence a military jeep stopped outside Verhari village and one of the two "army persons" in it had ordered him to get some meals, therefore he had got some food from P. W. Sakhi. He said that he had seen the second appellant standing outside the jeep. P. W. Sakhi said in evidence that on receiving the request for the supply of meals through P. W. Khairo he had taken some food for "the army persons" in the jeep and found that the jeep had been left behind in the charge of two persons, one of whom was the jeep driver and the other was the second appellant who appeared to be known to the jeep driver. But merely because the second appellant remained with the jeep at Vehari village, it is not possible to hold that he knew or could anticipate the criminal intentions of the first appellant and the Sepoy and the Naik, nor is there any evidence whatsoever to show that the second appellant was aware of the intention of the first appellant and the others to commit robbery. The second allegation against this appellant is that cloth belonging to P. W. Tuljaram was recovered at his instance from his but in village Kubri. But this was more than a week after the occurrence, and his explanation of the articles recovered was that they had been purchased by him and his brother for the wedding of his brother's daughter. The burden of proving this wedding was obviously on the second appellant and he did not produce any evidence in support of this plea. However, P. W: Sakhi has said in his evidence that he knew that Haji Hussain's daughter was to be married about the time of the occurrence and that the marriage had been delayed because of the occurrence. In view of this evidence there is no reason to doubt this appellant's statement about the marriage of his niece. I have observed that the articles recovered from his house were secured vide Mashirnama Exh. 25 and that P. W. Pirbho was a Mashir of these recoveries. Both P. W. Mazharuddin A. S. I. and Pirbho have said that the second appellant took them to his but and produced the articles. But whilst the Mashirnama states that the recovery was made at 2 a.m. (at two hours) P. W. Pirbho has said in his evidence that the recovery was made in the evening. Apart from this discrepancy between the Mashirnama and the evidence of the Mashir who has signed the Mashirnama, the Mashirnama shows that 14 varieties of cloth were recovered but that the total value of the entire cloth recovered was only Rs.

279. The items include red, blue and green cloth printed with flowers, voils printed with flowers, red voil snuff vorl etc. Thus the type of material recovered support the appellant's claim that they bad been purchased for a wedding. But one item recovered was a piece of khaki cloth, therefore the learned Sessions Judge has taken the view that this appellant's story was false because khaki cloth could not have been purchased for a bride. The view of the learned Sessions Judge that khaki cloth is not an article required for a bride is correct, but that does not rule out the possibility that the close relations of the bride may have desired to purchase some cloth for themselves on such an occasion. Accordingly, I see no reason to disbelieve the appellant's story merely because the cloth produced by him included one piece of khaki cloth. Here it is very relevant to observe that there was great delay by P. W. Tuljaram in lodging the F. I. R. Yet of all the items recovered from the second appellant the only item mentioned in the F. I. R. is the piece of khaki cloth. As P. W. Tuljaram had ample time to recollect events before lodging the F. I. R. the fact that 13 out of the 14 items recovered from the second appellant were not mentioned by him in his F. I. R. casts doubt on his claim that the cloth secured from this appellant was the cloth stolen from his shop. In view of this and in view of the explanation given by the appellant, it appears to me that it was incumbent on the prosecution to give some independent evidence such as the account books of P. W. Tuljaram in support of its case that the cloth recovered from the second appellant had belonged to P. W. Tuljaram but no such evidence was produced. Additionally, learned counsel for the appellant has very rightly laid great stress on an admission by P. W. Pirbho in his evidence. P. W. Pirbho has clearly said in his evidence that the second appellant was arrested after the recoveries made from him. Finally, assuming for the sake of argument that the articles recovered from the second appellant were the articles that had been stolen from P. W. Tuljaram's shop, as the second appellant had not taken any part in the occurrence, the appellant had to prove that the articles secured from the second appellant had been retained by him, although he knew or had reason to believe that these articles were stolen property. Except that this appellant is the uncle and father‑in‑law of the first appellant, the prosecution has not produced any evidence in this respect. But merely because he was closely related to the first appellant it is not possible to hold that he had the guilty knowledge under section 411, P. P. C. Accordingly, I hold that the prosecution have failed to prove beyond reasonable doubt that the second appellant has committed an offence under section 411 or 412, P. P. C. therefore I allow his appeal and set aside the conviction and sentence passed against him. I have held that the first appellant has been rightly convicted under section 394, P. P. C. But in sentencing him to four years' R. I. the learned Sessions Judge has accepted the evidence of P. W. Tuljaram in the Sessions Court that this appellant had actively participated in the occurrence and had beaten P. W. Tuljaram with the Sepoy and the Naik. As I have not been able to believe the statement of P. W. Tuljaram in the Sessions Court that this appellant had attacked him, some reduction in the sentence is justified. Accordingly whilst I uphold the conviction of the appellant under section 394, P. P. C. I reduce the sentence to three years' R. I. In the result, the appeal of the second appellant is allowed, but the appeal of the first appellant is dismissed subject to the reduction of the sentence passed against him from four years' to 3 years' R. I. Order accordingly.