1969 PLP 351 (SCMR)

Mushtaq Ahmad, Advocate‑General West Pakistan (M. Z. Kitchlew, Advocate Supreme Court with him) instructed by Ijaz Ali, Attorney for the State. Date of hearing : 6th October 1958. AMIRUDDIN AHMAD, J.‑Criminal Appeal No. 16 of 1957, and Jail Petitions for Special Leave to Appeal Nos. 42 and 43 of 1957 are by three persons, namely, Jumma Khan, Azad and Sarwar, who were tried together on charges under sections 148, 307/149 and 396 of the Pakistan Penal Code for having along with two others committed dacoity, in the course of which two persons Feroz and Nur Khan were murdered and a woman Nek Bakht were wounded, on the night between the 5th and 6th December 1955, in Dhok Malkawali in the district of Campbellpur. Sarwar and Azad were convicted by the Sessions Judge and were sentenced to death under section 396 of the Pakistan Penal Code and Jumma Khan was acquitted. The appeals of the two first‑named were dismissed by the High Court and their death sentences were confirmed, while the Government appeal against the acquittal of Jumma Khan was allowed and the same sentences as were imposed on the other two were imposed on the appellant Jumma Khan and he was also sentenced to death. Jumma Khan's appeal is Criminal Appeal No. 16 of 1957. Azad's Petition is No. 42 of 1957 and Sarwar's Petition No. 43 of 1957. As the whole case was before us, all the three were heard together. Azad's petition was dismissed, and Sarwar's petition (No. 43 of 1957) was treated as an appeal (Criminal Appeal No. 71 of 1958) with the consent of the learned Advocate‑General who represented the State and waived notice of appeal. The conviction of the appellants and the petitioner rests on the evidence of two approvers, Muzaffar and Kala, the two eye‑witnesses, Sher Zaman and Nek Bakht, supported by the recovery of a rifle (Exh. P. 47) and the bayonet Exh. P. 48 at the instance of the petitioner Azad, the recovery of a gupti (Exh. P. 10) from under his pillow at the instance of the appellant Jumma, and the recovery of a rifle, a revolver and two torches at the instance of appellant Sarwar. Two empty shells were picked up by the Investigating Officer from the place of occurrence, which were examined by the expert, P. W. 2, who gave the opinion that they were fired from the rifle which was recovered at the instance of Azad. According to the Medical Officer, P. W. 1, who held the post‑mortem examination on the dead bodies of Feroz and Nur Khan and examined the injuries on Nek Bakht, all the injuries were inflicted by a sharp‑pointed weapon. According to the evidence of the two approvers, Azad carried a rifle with fixed bayonet and Jumma Khan carried gupti. Sher Zaman, P. W. 15, at the test identification parade identified all the three as having taken part in the dacoity, while Mst. Nek Bakht identified Jumma Khan as her assailant, who stabbed her as she was unchaining the doors which were chained from outside by the dacoits. The two approvers have given a vivid description of the dacoity, in which, they said, they took part, which is substantially the same with a slight variation. The Sessions Judge did not rely on the approver Muzaffar on the ground that though he was related to the other approver, Kala, there was no affinity between them; that there was no indication that Muzaffar had joined any of the other accused in any criminal adventure and that it was difficult to imagine that a group of dacoits would include in their party a man whose fidelity and whose ability to carry out the adventure had not been tested at all. He, however, relied on the other approver, Kala. He rejected the evidence of Mst. Nek Bakht as against Jumma Khan on the ground that she was stabbed on the back on which the torch light was thrown, and even if she turned round, the light must have fallen on her face and she must have been blinded by the light so as not to be able to recognize her assailant. We may observe here that there is absolutely no evidence that when she turned back, the light was playing full on her face. The High Court relied on both the approvers and also on the direct evidence of Sher Zaman and Mst. Nek Bakht, who materially corroborated the approvers and the recovery of the articles at the instance of the accused persons, which, it held, corroborated the approvers. It was urged on behalf of the appellant Jumma Khan in support of his appeal that Sher Zaman, P. W. 15, the son of the murdered man Feroz, was not a reliable witness, as his statement in the first information report was in conflict with his evidence. His statement that one of the dacoits came on a mare was false. In his first information report he stated that he did not know the culprits, while in his evidence he said he knew the approvers and could recognise them even without the torch light and identified one of them in the parade. He identified four men at the parade, but said he saw only three in the torch light. These discrepancies were fully considered by the High Court along with the explanation given by the witness in his evidence and the High Court considered him to be a reliable witness. We see no reason to differ from the High Court, and accept his evidence in so far at least as it finds support from other evidence or circumstances, for example, his evidence against the petitioner Azad is fully supported by the recovery of the rifle with the bayonet from him which was proved to have been used at the dacoity and which also corroborated the approvers' evidence. Another point urged in support of the appeal of Jumma Khan is the Msr. Nek Bakht in her earlier statement before the Police or the Committing Magistrate did not mention the torch in the light of which she said she had recognized Jumma Khan. On examining the evidence we find that she mentioned the fact that she saw Jumma Khan in the light of the torch before the Magistrate, P. W. 4, who held the test identification parade as early as the 20th December 1955, before she gave her evidence in the Committing Magistrate's Court. Her evidence is also supported by the medical evidence as to the nature of the injury and the instrument, with which it could have been caused, supported by the recovery of the gupti at the instance of the appellant Jumma Khan. We see no substance in these arguments and dismiss the appeal of Jumma Khan and the petition of Azad. We now deal with the case of Sarwar whose petition from Jail has been treated as an appeal. His case stands on a slightly different footing from those of the others so far as the evidence implicating him is concerned. No name of the culprits was mentioned in the first information report. It is true he was pointed out by P. W. Sher Zaman, who stated that he saw him among the dacoits, who had killed his father, when he was peeping from inside his house through a chink. He was not identified by Nek Bakht as one of the dacoits. He is stated in the evidence of the approvers to have climbed the roof of the kotha from which Nur Khan came out for the most part of the occurrence, and he came down when the dacoits found that the game was up. After that it is not probable that he would remain standing in the courtyard. At that time Stier Zaman had already left his peep‑hole. In the circumstances of the case and the discrepancies in Sher Zaman's evidence, the identification of Sarwar by this witness is not convincing. The rifle recovered from him has not been proved to have been used in the dacoity and the empty shells found from the place were not shown to have been fired from his rifle. The approvers' evidence has not been corroborated by sufficient evidence so far as this appellant is concerned. We think the case against this appellant has not been proved beyond doubt. We, therefore, allow his appeal and set aside his conviction and sentences and acquit him. Appeal dismissed: