P L D 1966 (W (PLP)

(i) it was highly improbable that in a state of extreme frightfulness and nervousness, the complainant should have been able to lodge a report so promptly within a couple of hours of the occurrence, giving all the details of the stolen property, along with the fairly detailed description of the culprits, (ii) that the evidence of the eye‑witnesses of whom three were ladies suffer from serious discrepancies besides inherent improbabilities, (iii) that the evidence of recoveries of the stolen articles allegedly made at the instance of the appellants was unreliable and has been thoroughly damaged by the statements of Bashir Ahmad (P. W. 3), Nazir Ahmad (P. W. 14), and Ghulam Rasul (P. W. 16) when re‑called, (iv) that the evidence of identification besides being weak per se was not put to two of toe appellants, namely, (sic) (v) that there was no evidence about the time and circum stances of arrest of Murad, Haji and Hakam appellants, and in the absence of definite proof of their dates of arrest, the recoveries attributed to them would become thoroughly unreliable. (vi) that the conviction of the appellants simultaneously under sections 397 and 412, P. P. C. was illegal, as the same appellants could not be convicted both for the offences of dacoity, and the recovery of the property allegedly stolen away in the course of dacoity. (vii) that at any rate, conviction under section 397, P. P. C. was not sustainable inasmuch as, the use of deadly weapon or the allegation of causing grievous hurt to any person, etc., having not been specifically attributed to any particular appellant, which alone could justify a conviction under section 397, P. P. C.

6. Before dealing with the points raised by the learned counsel for, the appellant, I cannot help observing that the trial in this case was conducted in a most haphazard and careless manner. The record is bristling with all kinds of mistakes. The exhibits of which Exs. P. F and P. J. are missing are in a hopeless jumble: Inadmissible evidence was allowed to be recorded and important incriminating questions regarding identification were not put to some of the appellants. There are occasional references to one Bakhshaia in the statement of Ghulam Jilani (P. W. 11) and those of Muhammad Nawaz (P. W. 9) and Wali Muhammad (P. W. 10) when re‑called, giving the impression as if Bakhshaia was also a co‑accused taking his trial with the appel lants, and was therefore, made to join the identification parade. One really wonders, how Bakhshaia crept in this case, and yet it remained unnoticed that he had nothing to do with it. One is only left to guess that probably the learned trial Court was confusing two different files, of different cases when it allowed cross -examination about Bakhshaia in the course of this trial.

7. The legal objection taken up by the learned, counsel for the appellants to the sustainability of simultaneous convictions under sections 397 and 412, P. P. C. or for that matter of one under section 397, P. P. C. alone are easy to decide and present no difficulty. I, therefore, take up these two points first. It was readily conceded by the learned counsel for the State that just as one person could not be simultaneously convicted of an offence under section 379, and one under section 411, P. P. C. on the same analogy conviction under section 397 and 412, could not stand, as the same person could not, be a dacoit as well as himself the receiver of the booty of dacoity committed by him. The conviction is accordingly set aside and I shall proceed to examine as to what offence or offences if any, stand proved against each of the appellants. No doubt, deadly weapon or weapons were used by the culprits in the dacoity committed in the house of Abdul Hamid resulting in pellet shot injuries to his father‑in‑law Khair Din, but in the absence of any evidence on the record to show that the injuries sustained by Khair Din were caused by either Rehmat or Haji from whom pistol, appear to have been recovered, it would not be possible to particular arise the appellants who had used deadly weapons. In the first instance, these recoveries appear to have been made long after the occurrence, and secondly there is nothing to connect them with the pellets and empties recovered from the spot. Even the evidence of recovery itself in the absence of any relevant recovery memos., is not free from doubt, and can hardly be relied upon. But the learned trial Court while convicting all the appellants under section 397, P. P. C. presumably took the view though, it is not specifically mentioned in the judgment, that even if at the time of committing robbery or dacoity one of the offenders uses any deadly weapon or causes grievous hurt to any person, etc., all the other co‑accused would be equally liable on the principle of constructive or joint liability. This obviously is an erroneous view as would be clear from the language of the section itself, which reads as follows: "397.‑If, at the time of committing robbery, or dacoity, the offender uses any deadly weapon, or causes grievous hurt to any person, or attempts to cause death or grievous hurt to any person, the imprisonment with which such offender shall be punished shall not be less than seven years." The plain reading of this section leaves one in no manner of doubt that section 149 would not, be applicable to an offence under section 397, P. P. C. The distinction would be further clear if this section is compared with the preceding section 397, where the principle of joint liability has been made applicable. Section 396, reads as follows: "396.‑If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or transportation for life, or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine." I am further fortified in this view by an authority cited as Qalandar Bakhsh and another v. State (P L D 1964 Kar. 269) J. Ortcheson, J., the learned Judge who delivered the judgment observed as follows: "It is well settled that section 149, .P. P. C. cannot be invoked for the application of section 397, P. P. C. and that only those accused 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." Same principle was held to be applicable to an offence under section 398, which deals with a case of attempted robbery or dacoity in which the offender is armed with any deadly weapon, in Muhammad Nawaz and others v. State (P L D 1963 Lah. 361), which is again a judgment by the same learned Judge. It was held by his Lordship that section 398 was applicable only to an accused actually armed with any deadly weapon. Although there ‑is a reference in the first information report to one of the dacoits being armed with a pistol and one with a hatchet, the allegation of each one of the appellants having used any deadly weapon is not established by the evidence on the record. There is yet another aspect of the matter which cannot be lost sight of. While framing charge against the appellants, the learned trial Court charged all the appellants with offences under sections 397 and 412, P. P. C. Here again, the learned trial Court seems to have erroneously taken the view that an offence under section 397, P. P. C. is substantive offence. I need hardly cite any authorities. on the point that this section does not create a substantive offence, and therefore, no charge could have been framed, under this section alone. In this case, the substantive offence alleged against the appellants was one of dacoity under section 395, P. P. C. which was omitted in the charge and as such, the charge was defective. This error can, however, be cured under section 537, Cr. P. C. as amended by Act XVII of 1964 (Code of Criminal Procedure West Pakistan Amendment Act). The upshot of the foregoing discussion is that neither a conviction under section 397, P. P. C. against all the appellants can be sustained, nor a conviction under this section simultaneously with one under section 412, P. P. C.

8. There is obviously a good deal of force in the contention of the learned counsel that evidence of identification per se is a weak type of evidence and is not to be readily believed having little evidentiary value. But this may not always be the case as in some cases and under certain circumstances it may be accepted as quite reliable. In the instant case it suffers from more than one defect. In the first instance, as would be clear from the statement of Mian Ghulam Jilani, Magistrate (P. W. 11) who held the identification parade, that one Bakhshaia was also made to join the parade along with Anwar and Hakam appellants as an accused person to be identified, who had obviously nothing to do with this case and reference to whom in the course of the trial as stated earlier remained an unexplained mystery. Abdul Hamid (P. W. 2) and Mst. Sharifan (P. W. 3) identified both Hakam and Anwar. Mst. Ahmadan and Mst. Allah Rakhi (P. W. 6) identified Anwar, while Khair Din (P. W. 4) refused to identify anybody on account of weak eye‑sight. The occurrence took place on the night between 14/15th December 1961. The identi fication parade was held on 12th July 1962, i.e., about eight months after the occurrence. The appellants were not known to the witnesses before and they had only a glimpse of them during the commission of dacoity when even a man of extraordinarily strong presence of mind would be likely to become frightened and unnerved. This fact, coupled with the intervening period considered in the light of the definite allegations of the appellants that they had been shown to the witnesses prior to the identifica tion parade makes the evidence of identification extremely doubtful and difficult to accept. The question was considered in Gulbeg and others v. State (P L D 1964 Kar. 275), in a case of murder where the witnesses had a momentary and partial glimpse of the faces of assailants in torch light, and the parade was held after twenty days of the occurrence, it was observed by their Lordships as follows: "This delayed identification test based upon a momentary and partial glimpse of the face of the assailants is such that we find it extremely difficult to accept with implicit reliance. Besides, identification evidence has been considered by various Courts to be a weak type of evidence a form of evidence which is always to be taken with a considerable amount of caution, as held in the case of Ramzan and others v. Emperor (A I R 1929 Sind 149). Monir in his law of Evidence, Volume I at page 43 has remarked that.‑ "identification at night during a dacoity when the people are terrorised is generally of very little value." and again‑ "Chances of error in indentification become greatly increased when the identification is based upon a momentary glimpse in the confusion and excitement of the moment at night though it be a moon‑lit‑night." In Dil Muhammad Mondal v. Crown (P L D 1956 F C 402), it was held by their Lordships that "the result of the parade were discounted by the learned Judges on the ground that in the prevailing darkness with only the light of the lantern and a few torches to see by, the witnesses could not be expected" to memorise the faces of so many decoits. It was also observed that "these .are strong grounds in support of the existence of doubt regarding the participation of these nine accused persons in the dacoity." It may, however, he observed that in this case the number of dacoits was certainly much larger, but this in my opinion, is not going to make any material difference in view of what I have stated earlier. I have, therefore, no hesitation in rejecting the evidence of identification.

9. The only point, which remains to be considered is hove far reliance could be placed on the evidence of recoveries. It may be observed at this stage that since there is nothing on the record to indicate the dates of arrest of Murad, Haji and Hakam appellants, who have filed Jail appeals and since Muhammad Shafi, A. S. I. who appears to have arrested Haji and also perhaps Hakam and Murad, did not appear as a prosecution witness, if would be difficult to place any reliance on the recoveries attributed to them. Purse Exh. P. 5 was allegedly recovered on the personal search of Murad on 13th July 1962, and subsequently on 31st July 1962, a golden clip Exh. P. 1 was recovered at his pointing out, while in police custody from Abdul Gham (P. W. 19), a goldsmith of Okara, who produced receipt Exh. P. Q/2, dated 14th February 1962, purported to have been thumb‑marked by Murad in token of receipt of Rs. 95/15 as the price of the stolen clip P. 1, besides an amulet and a pair of silver bangles. Abdul Ghani admitted having scribed the receipt himself and stated that Murad appellant had thumb‑marked the same in his presence. The relevant recovery memos. Exh. P. S. and P. T. were signed by him. He admitted in cross‑examination that Bashir goldsmith (P. W. 12) was his nephew and that an enquiry was held on the application of some goldsmiths to the Superintendent of Police that the police had taken away their own ornaments and that Wali Muhammad, father of Bashir had appeared as a witness in the enquiry. It is pertinent to observe that neither Abdul Salam; the only marginal witness on Exh. P. Q/2, nor Muhammad Bashir, a marginal witness of Exh. P. S. and P. T. was produced in support of these recovery memos, whereas, Faqir Muhammad (P. W. 26), the second marginal witness of these memos. did not support the prosecution. He admitted having signed the memos, but stated that the articles were not recovered in his presence, nor had the police, any accused in custody at that time. The non‑production of Muhammad Bashir, and Abdus Salam and the statement of Faqir Muhammad make these recoveries extremely doubtful. Silver necklace Exh. P. 8 and golden Inam P. 9 were recovered from Fazat Muhammad (P. W. 15) at the pointing out of Hasan Din and Haji appellants in police custody. These had been purchased by him from both of them on 18th December 1961, vide receipt Exh. P. N., purported to have been written by Muhammad Iqbal (P. W. 23) ‑and thumb‑marked by both Hasan Din and Haji in token of the receipt of Rs. 13/12 as price of the golden necklace and Rs. 112/8 by Haji as price of the golden inam. The receipt was also signed by Ghulam Rasul, who appeared as P. W. 16 and supported the prosecution version, which, however, did not find support from Muhammad Iqbal scribe (P. W, 23), who was allowed by the Court to be cross‑examined by the P. S. I on his request. Apart from the fact that Muhammad Iqbal mentioned as scribe of receipt Exh. P. N/1 refused to support the prosecution version, suggesting that he had signed it at the instance of the thanedar. It is not altogether free from doubt that both Haji and Hasan Din should have gone together to Fazal Muhammad goldsmith on the same day for the disposal of the stolen property. The relevant entry Exh. P. N/1 is on the second leaf of bahi Exh. P. N, which contains fourteen entries in all, of which 12 are subsequent to Exh. P. N/1. Strangely enough, all the subsequent entries except one in pencil are purported to have been signed by Muhammad Iqbal as scribe, including receipt Exh. P. N/2 dated 25th February 1962, which was thumb‑marked by Hasan Din appel lant in token of receipt of Rs. 60/15 as price of one golden dandi. This is not signed by any marginal witness and its writing was also denied by Muhammad Iqbal. The perusal of the receipts bearing the name of Muhammad Iqbal as scribe creates a serious doubt about their genuineness, particularly when considered in the light of denial. of Muhammad Iqbal. Likewise, entries Exh. P.Q./I and Exh. P. Q./2 on receipt Exh. P. Q are not free from doubt.

10. For the foregoing reasons, I am not inclined to hold the recoveries against Murad, Hakam and Haji as genuine, and do not consider it safe to place reliance on that evidence for basing conviction. Strangely enough, Exh. P. U is a recovery memo, which tends to show that a country made '12 revolvers and a bandolier containing eight 12 bore live cartridges were recovered at the instance of Haji appellant, who produced them from a suit‑case at his house in Got Mahmood, Police Station Pad Eedan, district Nawab Shah on 14th June 1962. These recoveries appear to have been effected by Muhammad Shafi, A. S. I./C. I. A, Narowal. The memo. Exh. P. O. was signed by Jan Muhammad and thumb‑marked by Nathu. Neither the A. S. 1, nor any one of these witnesses appeared in Court and in spite of that this recovery P. U. some how found its way on the record, and an incriminating question pertaining to the same was also put to Haji without any basis. The recovery of gluband P. 3, silver bangles P. 7, dug out by Hakam appellant while in police custody is mentioned in the statement of Muhammad Nawaz (P. W. 9), Wali Muhammad (P. W. 10), and Yusuf Inspector (P. W. 34). Unfortunately, the relevant recovery memos. Exhs. P. F. and P. G. attested by P. W. 9 and P. W. 10 are not traceable on the record. Since there is a reference to these recovery memos. in the judgment of the trial Court, reliance could have been placed on it, in spite of their non‑availability, but their disappearance coupled with the fact that there are no definite indications of Hakam's date of arrest, showing the duration of his custody in the police before the recoveries, they become rather dubious and it would not be safe to rely on them.

11. The result is that no case against Murad, Haji and Hakam, either under sections 395/397 or 412, P. P. C. is established. Their appeal is therefore accepted, their convictions and sentences are set aside and they are acquitted.

12. I now proceed to deal with the case of Rahmat, Anwar and Hasan Din. As stated earlier, Rahmat was arrested by Safdar Husain (P. W. 29) and Jamal Din (P. W. 33), Foot Constables of Shakargarh police station in the early hours of 30th June 1962, as would be clear from report Exh. P. W./1, showing the registration of a case under section 19 of the Arms Act, against him at Shah Gharib P. S., District Sialkot and a country made .12 bore pistol along with some cartridges and a Sandheva were recovered from his possession contained in a bag. It was during the investigation of this case that a clue was found to the instant case of dacoity. Anwar appellant was arrested by Muhammad Saeed Khan, Inspector Police on 10th July 1962. On 30th July 1962, while in police custody on his pointing out golden inam P. 4 was recovered from Bashir goldsmith of Chak No. 24 G. D. district Montgomery. This Bashir goldsmith appeared as P. W. 12 and produced bahi Exh. P. K. containing on its sixth page receipt Exh. P. K/l, bearing signatures of Muhammad Anwar, in token of the receipt of Rs. 137/9 ‑as price of golden inam Exh. P. 4, and a golden dandi. It bears signatures of one Muhammad Hanif as a marginal witness. The golden inam and the dandi were taken into possession vide memo. Exh. P. L, which was signed by aforesaid Bashir, Muhammad Shafi lambardar of Chak 24 G. D. and Nazir Ahmad of the same village, of whom only Nazir Ahmad was produced. The golden inam Exh. P. 4 and the silver necklace P. 8 were identified by Abdul Haq (P. W. 22) which he had prepared "for some persons, residing in village Chandowal, five or six years prior to his appearance in Court on 7‑12‑1962'". Unlike Mahnga and Haji goldsmith of Narowal and Bashir goldsmith of Zafarwal, who were mentioned in the, first information report by Abdul Hamid Patwari as having prepared some of the jewellery this witness finds no reference in the first information report, nor does he clearly mention the name of Abdul Hamid or his father- in‑law as the persons for whom he prepared these ornaments. He was obviously speaking from memory with no documentary record to fall back upon in respect of the claimed preparation of ornaments five or six years earlier. There are two golden inams mentioned in the first information report, one weighing nine mashas while the other one tola. Exh. P. 4 according to receipt P. K/1 weighed 8 mashas and two rattis, and nearly corresponds to one of the stolen inams. It was stolen on the night of 14/15th December 1961, sold on the 17th of February 1962, and recovered on the 30th of July 1962. Assuming that it was the same, one really wonders why Bashir, a village goldsmith kept it intact for five and a half months. This fact considered in the light of the admission of Bashir Ahmad when re‑called, that Nur Ahmad, Ibrahim and his father (Bashir) had made an application to the S. P. that the police had got prepared some ornaments from them, and taken them away, on which an enquiry was held, makes the recovery of Inam P. 4; open to serious doubt. The statement of Nazir Ahmad (P. W. 14) who signed the recovery memo. Exh. P. K. pertaining to the recovery of Inam P. 4, makes the position still worse. He stated that Bashir was called by the police in the school and that Wali Muhammad father of Bashir had told the police that Inam, P. 4 and golden dandi produced by his son belonged to him (Wali Muhammad). When re‑called, he stated that the police had asked Bashir to bring the ornaments on the next day. Another relevant fact that may be mentioned in this context is that when charge was framed against Anwar, it was put to him that he had thumb‑marked receipt Exh. P. K, which in fact he had signed, although when examined under section 342, Cr. P. C., he denied having signed receipt Exh. P. K in Bahi Exh. P. K/1. No efforts were made by the prosecution to establish the identification of his handwriting by producing a handwriting expert. In the circumstances, I consider it highly unsafe to rely upon such a recovery, in order to make it the basis of conviction.

13. Next comes Rahmat, who according to the prosecution had pledged golden Inam P. 13 and golden tikka P. 2 with Abdul Ghani (P. W. 19), a goldsmith of Okara; for a sum of Rs. 70 vide receipt Exh. P. Q., thumb‑marked by him in token of the receipt of the aforesaid amount in Bahi on 3rd March 1962. According to Abdul Ghani, this receipt was written by him in his own hand. It is another interesting feature of the case that two Muhammad Iqbals were produced as prosecution witnesses, one son of Mehr Din, who appeared as P. W . 17, and the other son of Jhanda who appeared as P. W. 23, both being residents of Okara. Muhammad Iqbal (P. W. 17) admitted having witnessed the sale of silver necklace P. 8 by Hasan Din appellant and a golden inam P. 12 by Haji appellant to Fazal Muhammad goldsmith of Okara, of which he wrote receipt Exh. P. N./1, in bahi P. N., which was thumb‑marked both by Hasan Din and Haji. Subsequently, he again wrote Exh. P. N./2 relating to the sale‑of golden dandis by Hasan Din to Fazal Muhammad goldsmith. Strangely enough, Muhammad Iqbal, son of Jhanda (P. W. 23) was also examined about receipts Exh. P. N./2 and P. Q./2, and what is more surprising is that he too, admitted having written Exh. P.N./2 and signed Exh. P. Q./2. In the circumstances, it is difficult to believe which of these witnesses witnessed which of these transactions. While referring to the recovery of golden inam P. 4, at the instance of Anwar, vide recovery memo. Exh. P. L. I had stated that the F. I. R. referred to the removal of two golden inams in the course of dacoity one weighing nine mashas and the other one tola. Inam P. 4 recovered from Bashir Ahmad goldsmith at Anwar weighed 8 mashas two rattis, while Inam P. 12, recovered at the instance of Haji weighed ten mashas, and as such none of these precisely tallies with the imams mentioned in the first information report. Another equally interesting discrepancy is that the charge of Haji appellant refers to the recovery of golden Inam P. 9, whereas, the same is men tioned as P. 12 in the statement of Muhammad Iqbal (P. W. 17). This is yet another example of the carelessness and haphazard manner in which the case was conducted by the prosecution. The upshot of all this is that the recoveries against Rahmat, Haji and Anwar are not proved beyond reasonable doubt. While looking at entries Exh. P. Q./1 and P. Q./2, in bahi P. Q., one would be inclined to accept them as genuine and perhaps with a little more interest and effort the prosecution could have been able to establish their genuineness. For instance, it was not the case of the appellants that their thumb‑impressions were obtained by the police subsequently, and in their examination under section 342, Cr. P. C. they simply denied having thumb‑marked the receipts. These thumb‑impressions are distinct enough to permit of identification by some Finger Print Expert, by comparing with sample thumb‑impressions of the appellants, which was not done. I have already discarded the recoveries of silver necklace P. 8 and golden inam P. 9, attributed to Hasan Din and Haji appellants respectively, and the discussion need not be recapitulated.

14. Having considered all the aspects of the case, I have no ‑hesitation in saying that no case under section 395/397 or 412 P. P. C. is established against Anwar, Rahmat and Hasan Din either. In the circumstances, I, am unable to uphold their conviction and sentences and giving them the benefit of doubt accept their appeal, set aside their convictions and sentences and acquit them.

15. In the end, I cannot ‑help observing that the entire labour, energy and time spent on the investigation would not have gone waste if Muhammad Shafi, A. S. I. who arrested Murad, Haji and Hakam had not been withheld, and the handwriting of Anwar appellant and thumb‑impressions of others had been got compared by some expert with the impressions and signatures on the receipts. K. B. A. Appeal accepted.