1980 P Cr (PLP)

I hold these two points in the affirmative. Point No. 3 On this point the following pieces of evidence are available against the accused (a) Ocular testimony of Muhammad Irshad, Roshan Din and Wali Muhammad ; (b) Corroborative testimony of Muhammad Ishaque and Jan Muhammad ; (c) Identification of foot prints of the accused ; (d) Recovery of weapons from all the accused and watches from Ghulam Hussain and Shamoo ; (e) Foot prints from vardat leading to Iqbal Kharos Village ; and (f) Absence of accused from their village on the day following the incident.

18. I will first deal with the evidence of eye‑witnesses. In such regard the evidence of Muhammad Irshad, Roshan,, Din and Wali Muhammad is relevant. Each one of these three accused is an employee of Railway Department and is posted at Meon Jo Daro Railway Station. The three witnesses were on duty at the time of incident and their presence at the station was necessary because Bolan Mail had left the station at about 2a.m.

19. These three witnesses have given clear and consistent evidence on the fact that all the five accused came to the station and first started beat ing Roshan Din and Wali Muhammad who were lying down in the verandah outside the Station Master's office. Roshan Din has spoken about the removal of his watch from his wrist. Muhammad Irshad heard the sound and came out on the platform and found ‑that five persons were quarrelling with Roshan Din and Wali Muhammad. All the three witnesses then stated that as soon as Muhammad Irshad came out on the platform; the five accused persons caught hold of him and after giving him lathi blows and slaps, they dragged him into the office. Each one of these witnesses has deposed that the accused persons searched for the keys and repeatedly gave blows to Muhammad and. Irshad persistently asked about the keys of the safe containing Government cash. The evidence also discloses that the watch of Muhammad Irshad was taken away. All the witnesses have stated that Muhammad Irshad with the presence of mind took up a book and showed the same to the accused persons, imploring upon them in the name of Holy Quran, whereafter the accused persons went away. The evidence of Muhammad Ishaque, the Station Master completely corroborates the evidence of these three witnesses; and, Muhammad Ishaque also sent a written report to the Station House Officer of Railway Police Station at Larkana with copies to the Station House Officer of Dokri Police Station and various other Officers. In this report loss of watches, the weapons carried by the accused, the attempt at obtaining keys of the Government cash and various other aspects of the case have been stated. The evidence of Jan Muhammad also lends support to the prosecution case as he has stated that five persons had come and robbed him and Allah Bux of Rs.

60. This witness has further stated that thereafter the five persons created commotion on the platform and ultimately those five persons entered the office of the Station Master and demanded the keys from the Assistant Station Master. These three witnesses namely, Muhammad Irshad, Roshan Din and Wali Muhammad were called to the office of Head Munshi and Third Class Magistrate, Shamsuddin, and they identified four accused persons on the morning of 16th April, 1975, and the fifth accused person in the afternoon on the same day. Witnesses Muhammad Irshad and Roshan Din also identified their respective watches, which were recovered from accused Shamoo and Ghulam Hussain.

20. In regard to these witnesses there is nothing on the record to indicate that they have any reason to falsely implicate the five accused. In fact the learned Advocate for the accused has only attempted to argue that these witnesses who were otherwise independent deposed against the five accused at the instance of Inspector Mahboob Ali. First of all, no enmity of Inspector Mahboob Ali is established as against any of the accused and secondly, there is nothing on record to indicate that these three witnesses Muhammad Irshad, Roshan Din and Wali Muhammad were in any manner under the influence of Inspector Mahboob Ali. In regard to Inspector Mahboob Ali, the case of the accused is that he wanted accused Ghulam Hussain to compromise his disputes with the remaining four accused, Shamoo, Mitho, Haji and Dhani Bux ; and for such reason all the five accused had been called at .Dokri Police Station. In regard to the accused having been called to Dokri Police Station before the commission of this offence, there is no evidence on the record besides the statements of the accused. Accused Ghulam Hussain has however stated, that a day before the commission of the dacoity, Inspector Mahboob Ali had asked Lai Kharos, the father‑in‑law of accused Ghulam Hussain, to produce the licensed gun and cartridges of accused Ghulam Hussain. Even Lai Kharos has not been examined in defence. In regard to the interest of Inspector Mahboob Ali to have the inter se disputes between, the accused settled, the Inspector has denied the allegations and has stated that he did not even know if the accused have inter se disputes. Even the documents produced by the accused fail to establish any such disputes. Accused Shamoo has produced a copy of a report under section 107, Cr. P. C. lodged by Station House Officer of Bakhratji Police Station against six persons including accused Shamoo and Dhani Bux. In this case Lai Kharos is shown as a witness. The name of accused Ghulam Hussain does not at all transpire in this report. Lai Kharos has also not been examined. It is therefore difficult to believe, that accused Ghulam Hussain personally has any dispute with the remaining four accused. The other documents produced by accused Ghulam Hussain relate to a case in which Lai Kharos is a witness. This case is under section 363/364/366, P.P.C. The deposition of Lai Kharos has been produced which shows that none of the remaining four accused namely. Shamoo, Mitho, Haji and Dhani Bux is concerned with that case. The other documents also do not advance the ease of the accused in so far as their alleged inter s2 disputes are concerned. On such scanty material it is difficult to believe that accused Ghulam Hussain had any dispute with the remaining four accused. On the other hand, if Inspector Mahboob Ali wanted to oblige the party consisting of accused Shamoo, Mitho, Haji and Dhani Bux by asking accused Ghulam Hussain to withhold evidence, it would be most improbable that the Inspector would send up all the five accused. What is more, that according to the defence of accused Ghulam Hussain, Inspector Mahboob Ali was interested in Abdul Hamid Khan Jatoi ; and if that was so, it would all the more be a reason for the Inspector to forbear from implicating Shamoo, Mitho, Haji and Dhani Bux in a case of dacoity, because they are stated to be the men of Abdul Hamid Khan Jatoi. I am therefore, clearly of the view that no inter se dispute between accused Ghulam Hussain on the one hand and the remaining four accused on the other has been established. I am of the view that even if any such dispute exists, it may be between Lai Kharos and Abdul Hamid Khan Jatoi. In any case Inspector Mahboob Ali had no interest in getting such a dispute settled. Since Inspector Mahboob Ali has no interest against any of the accused persons it would be extremely improbable that he would procure evidence of the three railway employees to falsely implicate the accused. On the other hand these three witnesses Muhammad Irshad, Roshan Din and Wali Muhammad had absolutely no reason to implicate any of the accused persons.

21. It has been urged before me that Jan Muhammad and Qurban Ali who had an occasion of seeing the accused persons had failed to identify any of the accused persons and for such reason identification by Muhammad Irshad; Roshan Din and Wali Muhammad should be doubted. The argument is hollow, because Jan Muhammad was attacked in the waiting room, where lights were dim ; and more over Jan Muhammad was sleeping_ when the five accused came and woke him up. It is therefore, possible that Jan .Muhammad, an honest witness, has not been able to identify any of the accused persons. On the other hand, Qurban Ali who was sitting in the room of the Station Master, concealed himself behind an almirah, and it may well be that he has failed to identify the accused The three identifying witnesses had seen the faces of the accused on light of tube lights, a light which sheds bright rays. These three witnesses had an opportunity of seeing the accused persons for about 15 minutes and therefore, they had full and sufficient opportunity, to identify the accused persons.

22. The learned Advocate for the accused has also urged that witness Muhammad Irshad had committed a mistake in the mention of the weapons carried by each one of the five accused. The criticism is founded on a statement in the evidence of Muhammad Irshad who has stated that Ghulam Hussain had a pistol, Shamoo had a gun, Dhani Bux had a hatchet, whereas Mitho and Haji had lathis. On the other hand a gun was recovered from Ghulam Hussain and pistol from Shamoo. While Dhani Bux was shown to be carrying a hatchet at the time of incident, in fact a lathi had been recovered from him. No doubt the weapons recorded from accused are different from the weapons spoken of by P.W. Muhammad Irshad. The question, however is, whether evidence of Muhammad Irshad was correct. in regard to the weapons actually carried by the accused persons. It may be that the accused may have changed their weapons either before the dacoity or after the dacoity. This circumstance therefore is not by itself sufficient to disbelieve Muhammad Irshad or doubt his veracity or recollection. Even if the description of the weapons carried by the accused at the time of the dacoity, as given by Muhammad Irshad, is considered to be incorrect, in my view, the prosecution case will not be affected. There is a possibility even of the witness making an honest mistake. On the other hand whether Shamoo was carrying a gun or hatchet or Ghulam Hussain was carrying any one of these two weapons, would not minimise their liability because the weapons are deadly weapons. I believe the evidence of Muhammad Irshad on the point of identity of weapons carried by the accused, but as stated above, even if a mistake has been committed by him, the same does not reduce the value of his evidence. It is additionally urged before me that no outsider witnessed the occurrence. One cannot overlook the time of occurrence and it is in the evidence of prosecution witnesses that they had been asked by the accused to raise no cries. This circumstance by itself does not reduce the value of the evidence produced by the prosecution witnesses. It has also been urged before me that Muhammad Ishaque was not told that the dacoits pointed a gun and pistol at him (Muhammad Irshad). According to me this is a very minor omission, because the telegram of Muhammad Ishaque does state about the weapons that were carried by the accused persons.

23. The evidence of Muhammad Irshad and Roshan Din is also strengthened by the fact of recovery of these two watches from accused Ghulam Hussain and Shamoo. The recovery of these two watches is depos ed to by Sub‑Inspectors Dilbar Yar Khan and Abdul Karim. While Dilbar Yar Khan recovered the watch from the possession of Ghulam Hussain, who produced it before the Police Officer from a box by opening the lock of the same with his own key ; Abdul Karim recovered the watch from the possession of Shamoo, who dug the ground and produced the same. These two watches were identified by their respective owners namely, Muhammad Irshad, and Roshan Din. The recovery of these watches is also spoken of by mashir Nazar Muhammad and identification test is spoken of by Magistrate Shamsuddin. The criticism of the learned Advocate for the accused in regard to the incriminating recovery of watches is on the same ground that the witnesses were under the influence of the police. The loss of two watches is spoken of in the first information report which was indeed very prompt and is an official communication. It is absolutely improbable that Muhammad Irshad or Roshan Din may have given their watches to the Police Officers for the purposes of strengthening the case against the accused persons.

24. Coming the identification parade, the circumstances clearly show that the parade was very fair. Four accused, Shamoo, Mitho, Haji and Dhani Bux were secured by Inspector Mahboob Ali in the early hours of 16th April, 1975, 12 other persons were also secured as suspects. On interrogation the Inspector suspected these four accused and inspire of that the suspicion, he did not arrest them but he straightaway produced them before Magistrate Shamsuddin for holding of an identification parade. The witnesses were called after the accused were produced ‑ before the Magistrate. Formalities in regard to keeping the identity of these four accused persons secret, were observed. These three witnesses came and identified the four accused persons. P. W. Muhammad Irshad further states that he even talked to these four accused persons in order to reassure himself in regard to identity of the accused persons. The conduct was not unnatural because he had heard the voice of the accused persons at the time of incident. I completely rely on the identification parade. The learned Advocate has however, urged before me that the police station was next to the Court of the Magistrate and for such reason the witnesses may have seen the accused before the parade. The witnesses, the Police Officer and the Magistrate have clearly stated that the witnesses had no opportunity of seeing the accused persons before the parade. In such context I see no reason to doubt the fairness of the parade.

25. Additionally it is contended that mashir Nazar Muhammad had acted as mashir on 10 or 15 occasions and was a previous convict. I find that the parade was held before a Magistrate and for such reason criticism in relation to Nazar Muhammad is completely besides the point. The defence Advocate has also relied on a statement appearing in the evidence of Magistrate Shamsuddin ; to the effect, that the witnesses for the identification parade were called from the police station through his revenue peon. He however, clarified it in a Court question and stated that he had been told by the Police Officers that the witnesses were sitting at the police station. In that context the evidence is that four accused namely, Shamoo, Haji, Dhani Buy and Mitho were brought from Iqbal Kharos village directly to the Court. What is more that the three witnesses, Muhammad Irshad, Roshan Din and Wali Muhammad have denied their being present at the .Police Station. 2.6. On a fair appreciation of the evidence of the three witnesses, Muhammad Irshad, Roshan Din and Wali Muhammad, I have no manner of doubt whatsoever that their evidence is completely true and not susceptible to any doubt. The other piece of evidence in regard to identity of the accused persons is foot prints. Muhammad Irshad had seen the five accused persons going away in the western direction. He pointed out the foot prints of five persons near the station, and the characteristics of these foot prints were marked by tracker Shafi Muhammad. The foot prints were thereafter followed and the same entered Iqbal Kharos village, where the five accused persons live. Tracker Shafi Muhammad was again told by Inspector Mahboob Ali to go back to the railway station and observe the prints carefully in day light because, earlier the same had been seen on the light of hand torch. The prints had been covered with the buckets that are normally available at railway stations. On the following day the foot tracker was shown foot prints of 20 persons and he picked out prints of four persons as being identical to the prints that had been seen by him at she vardat. Those footprints were of accused Shamoo, Mitho, Haji, and Dhani Bux. Similarly in the afternoon the prints of Ghulam Hussain were also identified by tracker Shafi Muhammad. No doubt the evidence of the tracker is not based on any scientific data, but such evidence is time honoured in this country. A knowledge of the conditions existing in the Mufasil reinforces the belief in the value Of this evidence. The tracker in this case is not shown to be interested either in the prosecution or the accused. He had full opportunity of marking the characteristics of the prints near the railway station and he identified the prints on the following day when the memory of the characteristics of the foot prints was still fresh in his mind. This evidence also lends strength to the otherwise reliable evidence of. eye‑witnesses Muhammad Irshad, Roshan Din and Wali Muhammad.

27. In regard to evidence of identification of the' accused there are some points which deserve consideration. The features of the accused were not mentioned by the witnesses in their police statements and secondly that the fact of Muhammad Irshad imploring the accused in the name of Quran is also not so mentioned. I have of course in the earlier part of this judgment discussed the question of failure of Qurban Ali and Jan Muhammad to identify the accused. While it is no doubt true that Muhammad Irshad, Roshan Din and Wali Muhammad have not given the description of the accused in their police statements, the question arises whether despite such omission their evidence can be relied upon. I must state that it is not the case of the defence that they had failed or had refused to give the description of the accused persons in their police statements. In my view the mere omission to give the descriptive features of the appearance of the accused to the police does not reduce the value of identification. This is a case in which three witnesses had ample opportunity of seeing the faces of the accused and electric tube lights were available. The transaction had taken about 15 or 20 minutes, during which period, the five accused were in immediate presence of the three witnesses. Identification parade was held within about 36 hours so that the features must be very clear in the memory of the witnesses. I have considered this aspect of the case and I see no reason to disbelieve the witnesses merely for their omission to give a description of the physical features of accused persons. Coming to the omission in regard to imploring the accused in the name of Quran I am of the view that such omission is not sufficient at all to. discredit witnesses, more so, as all the witnesses have unanimously deposed to such fact.

28. To sum up this point, it appears that the five accused persons are correctly identified by Muhammad Irshad, Roshan Din and Wali Muhammad ; their foot prints, were also identified by tracker Shafi Muhammad, two watches of Muhammad Irshad and Roshan Din were also secured from Ghulam Hussain and Shamoo ; and on the day following the dacoity, all the five accused had absconded. These pieces of evidence form a complete chain and are not open to any doubt. I rely on this evidence and hold that all the five accused took part in this dacoity. Points No. 4 and 5 These two points can be determined on the basis of common evidence and I propose to deal with them together.

29. The witnesses in regard to the incident have unanimously stated that of the five dacoits, one carried a pistol, the second a gun, the third a hatchet and the remaining two lathis. Of the weapons pistol has beep: identified both by Muhammad Irshad and Jan Muhammad. This pistol' has peculiar marks on its nozzle and such marks look like copper Witnesses Muhammad Irshad and Jan Muhammad appear to have identified the weapon on account of such distinctive features. Muhammad Irshad had an additional reason for identifying the pistol as it was pointed at his chest. In regard to identity of persons carrying the weapons, the only witness who has particularised the weapons is Muhammad Irshad He stated that accused Ghulam Huss4in carried a pistol, Shamoo a tun, Dhani Bux a hatchet ; whereas Mitho and Haji carried lathis. No other witness has given any other version.

30. Weapons had been recovered from each one of the accused on the day following the incident. Accused Shamoo produced a pistol, two cartridges, and a watch, which had been buried under the ground. Mitho had produced a hatchet from a corn bin. Dhani Bux and Haji had produced lathis respectively from the bedding and rafter. Accused Ghulam Hussain bad produced a gun with 10 cartridges and his licence.

31. In regard to the recovery the evidence has been furnished before me by S.H.O. Abdul Karim in regard to accused Shamoo, Mitho, Dhani Bux and Haji. In regard to recovery from accused Ghulam Hussain, evidence has been furnished by S.H.O. Dilbar Yar Khan. The evidence of the Police Officers is corroborated by the evidence of mashir Nazar Muhammad. I may in this context also state that accused Shamoo and Ghulam Hussain had produced the two watches of witnesses Muhammad Irshad and Roshan Din, which have been identified by witnesses.

32. Evidence in regard to recovery is sought to be attacked on the ground that mashir Nazar Muhammad was not reliable. This mashir has admittedly acted as a mashir of the various identification parades, foot print. tests, identification test of watches, arrest of the various accused and the several recoveries. In fact, on his own showing he was with the police on the entire day following the day of commission of offence. This mashir has also admitted that he had acted as a mashir on 10 or 15 occasions and he had been convicted in a case of corruption when he was an employee of the local municipality. Nothing is alleged against Abdul Karim or Dilbar Yar Khan, the two Police Officers, who bad made the several recoveries. All that is stated against these Police Officers is that they were under the influence of Mahboob Ali Inspector, who wanted to bring about a compromise of the disputes which the accused had inter se. In regard to such disputes or supposed settlement I have already expressed my views, in the earlier part of this judgment.

33. The question that then arises is whether the evidence in relation to recoveries is reliable or not. Accused Ghulam Hussain has admitted that his father‑in‑law Lal Kharos had produced his gun, cartridges and licence before the Police on the day preceding the dacoity. The remaining accused have denied the recoveries. In regard to the case of accused Ghulam Hussain I have not been able to understand his defence. First of all there was no necessity of Inspector Mahboob Ali calling for the gun and cartridges of accused Ghulam Hussain through his father‑in‑law, for the purpose of effecting a settlement of the alleged inter se disputes between this accused and the remaining accused. What is more that Lal Kharos who is the father‑in‑law of accused Ghulam Hussain has not been examined. It would be extremely improbable that on the day previous to the dacoity, the Inspector should have called for the gun and cartridges of accused Ghulam Hussain as if for use in implicating the accused in connection with a dacoity that still had not taken place. In my view this statement of the accused is completely false. The evidence of the prosecution on that point is not open to any serious doubt. No doubt it would have been desirable if a person other than Nazar Muhammad had been chosen as a mashir by the Police but I can find no fault nor can I doubt the evidence of S.H.O. Abdul Karim, especially when it is corroborated by the fact of recovery itself. The remaining four accused have denied the recovery of their respec tive weapons. The same argument in regard to the recovery from Ghulam Hussain can be pressed into service even in regard to the case of the remaining four accused persons. A gun was produced by accused Shamoo and a stolen watch was also produced by him. This watch has been identified. S.H.O. Abdul Karim has clearly spoken about the recovery of gun from Shamoo and other weapons from accused Haji, Mitho, and Dhani Bux. No doubt has 'been created in my mind in regard to the truthfulness of the Investigating Officer, more so as his testimony is corroborated by the fact of recovery, as well as the evidence of mashir Nazar Muhammad. In regard to mashir Nazar Muhammad I have not been able to find material, sufficient to discredit his evidence, or to hold it to be false. All that I observe is that it would have been desirable if services of another persons had been obtained by the Police Officers.

34. The next point requiring consideration is the fact that weapons recovered from the respective accused were different from the weapons which each one of the accused was carrying at the time of commission of the offence; As stated, Muhammad Irshad is the only witness who deposed that Ghulam Hussain carried a pistol and Shamoo a gun. The same witness has also stated that Dhani Bux carried a hatchet and Haji and Mitho a lathi. The fact is that a pistol was recovered from Shamoo, a gun from Ghulam Hussain, a lathi from Dhani Hux, and a hatchet from Mitho. It would appear that the weapons recovered were different from the weapons stated to be in possession of the accused. I have already dealt with this aspect of the case in the foregoing paras of the judgment and I am clearly of the view that in all probability the accused may have changed their weapons either before the dacoity or after the dacoity. There is also a possibility of witness Muhammad Irshad committ ing an honest mistake. Coming to the weapons, the only deadly weapons in this case are the pistol and the gun. According to Muhammad Irshad pistol was with Ghulam Hussain and gun with Shamoo but, according to the witnesses of recovery pistol was found from Shamoo and gun from Ghulam Hussain. In my .view this circumstance does not show that deadly weapons were not used in the commission of dacoity. After all what has been done to a weapon by an accused person is known to him alone, and it is too much to demand from the prosecution to give an explanation in regard to the variation of the weapons used. and the weapons recovered. A hatchet is ordinarily carried in Sind by persons and so are the lathis. These weapons in my view cannot be termed as deadly weapons, within the meaning of section 397, P.`P. C.

35. I am therefore of the view that both accused Ghulam Hussain and Shamoo carried deadly weapons namely, a pistol, and a gun at the time of commission of the offence. Both these weapons were used for the commis sion of the offence: It is needless to state that being armed with deadly weapons, even though the same be for the purpose of creating fear in the mind of witnesses in order to overawe them, so that they should not g resist the commission of dacoity, is by itself use of the weapons within the meaning of section 397, P. P. C. Both accused Ghulam Hussain and Shamoo are held to be armed with deadly weapons and use of such weapons at the time of dacoity.

36. In the result I hold all the accused guilty of an offence under section 395, P. P. C. I also hold accused Ghulam Hussain and Shamoo to be guilty under section 397, P. P. C. The act of the accused was one of extreme daring. They had attempted to commit dacoity in respect of Government cash at the railway station and for the commission of such offence, two out of the five accused were armed with a gun and a pistol. The accused also caused severe injuries to Assistant Station Master Muhammad Irshad. These factors have to be weighed in the matter of awarding sentence.

37. I convict accused Shamoo, Haji, Mitho, Dhani Bux and Ghulam Hussain under section 395, P. P. C. and sentence them to R. I. for seven years and to pay a fine of Rs.1,000 or in default to suffer R. I. for 18 months. I further convict accused Shamoo and Ghulam Hussain under section 397, P. P. C. and sentence them to R. I. for ten years. The substantive sentences of imprisonment imposed on accused Shamoo and Ghulam Hussain shall run concurrently. The accused are in custody and they are remanded to serve out the sentences.

38. The licensed gun with 10 cartridges recovered from accused Ghulam Hussain shall be delivered to the District Magistrate' of Larkana who shall forfeit the same to Government. The unlicensed pistol and two cartridges recovered from accused Shamoo shall be delivered, to District Magistrate at Larkana who has to forfeit the same. The hatchet and two lathis recovered from accused Haji, Mitho and Dhani Bux shall be destroyed by District Magistrate. The two watches shall be delivered to the owners viz. the witnesses Muhammad Irshad and Roshan Din. Appeal dismissed.