P L D 1954 Sind 136 (PLP)

INAMULLAH, J.‑This is an appeal by four persons, who have been convicted under section 395 and three of whom are sentenced to undergo 5 years rigorous imprisonment while the fourth, namely, Sajan has been sentenced to 4 years' rigorous imprisonment on the ground that he had remained in jail during the trial of the case. Two of the appellants, namely Shahali and Latif have been granted bail by a Bench of this Court while the other two who had preferred jail appeal. though their appeal has been admitted, but they are not on bail. The facts leading to the present appeal are very simple. Muhammad Ibrahim the complainant is a refugee and ‑has settled down at Tando Mari, District Hyderabad. He has a grocer's shop and in order to purchase provision for the shop he used to go to Tando Muhammad Khan and used to hire camels of one Ahmad in order to bring the provisions. On 23rd May the complainant Ibrahim informed Ahmad at about 4 p.m. that he would require his camels for the next day. Ibrahim hired the camels of Ahmad and started for his journey on 24th May 1951 at about 3 a.m. along with Ahmad. When Ibrahim and Ahmad reached Tando Fazal Regulator at about 4 a.m. they were stopped by a man on the Regulator who enquired from Ahmad if he had seen any bullock on the way. Thereafter Ibrahim and Ahmad were surrounded by four persons and after giving some beating with the blunt side of hatchet to Ibrahim, robbed him of Rs. 148 which he had kept in the folds of his lion cloth. While Ibrahim was being robbed three persons had stood near Ahmad. The dacoits disappeared in the forest. Ibrahim and Ahmad went to the Police Station Tando Fazal and lodged the first information report at about 7 a.m. The Police Station was only at a distance of about a mile from the place of the incident. The first information report did not disclose the name of any of the present appellant. The learned Sessions Judge has convicted the appellants on the evidence of Ibrahim the complainant, Ahmad, foot print test by Nawazali, retracted confession of Photo in which he also implicated the other three appellants and the evidence of one Moulabus who stated that three of the appellants, namely, Photo, Latif and Sajan had come to him in order to ask him to take part in the present dacoity. We would consider the cases of all the appellants together as the evidence against them is almost the same. We would in the first place consider the evidence of Nawaz ali Pagi. The Mashirnama of the scene of offence shows that there were foot‑prints of seven persons out of which the shod foot‑prints of three persons in shoes and that of two persons in slippers, were clear and could be identified. The rest of the foot‑prints were not clear for identification. Nawazali Pagi was put to identify the shod foot‑prints of the appellants. The learned Sessions judge stated:‑ "It is true that these prints were shod and have not much evidentiary value. If the case of the accused was based only on the prints of the accused Photo, Shahali and Sajan, I would not have convicted them at all." The evidence of the Pagi according to the learned Sessions Judge requires corroboration. It is noteworthy that so far as the accused Latif is concerned he was not put to any identifi cation of his foot‑prints. The learned Sessions judge has given much weight to the evidence of Ibrahim, the complainant, and that of Ahmad. So far as the complainant Ibrahim is concerned it is true that he had no motive to falsely implicate the accused persons. It is also true that he had been robbed. There are two circum stances however which discredit the value of his evidence. The first circumstance is that Photo on the prosecution evidence itself was known to Ibrahim complainant. It is admitted by Ahmad that. Photo used to accompany Ibrahim with the camels of Ahmad when Ibrahim used to go to make his purchases at Tando Muhammad Khan. It is very strange that if Photo was one of the accused persons who had parti cipated in the dacoity, and whom Ibrahim later on picked out as one of the persons who had participated in the dacoity, that Ibrahim was not able to mention his name in the first informa tion report. Photo was admittedly known to Ibrahim and if Photo was one of the dacoits Ibrahim should have mentioned his name in the first information report. In the second place it is admitted by the prosecution witness Ahmad that the four appellants were known to him by name as well as by face as Photo was his cousin and the other three were his neighbours. If that was so and the prosecution case being that it was pre arranged plan by the appellants to rob Ibrahim, the appellants must have taken precaution to hide their faces. Under these circumstances it is very difficult to rely on the identification test of the four appellants by Ibrahim complainant. At any rate the evidence of Ibrahim complainant is not of such a type which can be acted upon for conviction without any independent corroboration. So far as Ahmad is concerned he stands on his own state ment condemned. He has stated that though all the four appellants were known to him but he did not disclose their names to Ibrahim. The reason assigned by Ahmad for not disclosing the name of the appellants to Ibrahim is that if he had done so he may have been suspected of complicity in the dacoity. The explanation on the face of it does not carry conviction. In fact Ahmad's conduct was very suspicious in not disclosing the names of the appellants to Ibrahim. If he had disclosed the names of the appellants to Ibrahim he would never have been suspected to be in league with the appellants. If any suspicion arises that Ahmad was in league with the appellants it is because he failed to disclose the names of these persons to Ibrahim. Moreover Ahmad admits that Latif had given him a blow and this was a very good ground for a normal person to have mentioned at least the name of Latif to Ibrahim. Under these circumstances the evidence of Ahmad also cannot be given the same weight ‑which has been given by the learned Sessions judge and it cannot be accepted without corroboration. There is also the evidence of Moulabux who has stated before the learned Sessions judge that Photo, Latif and Sajan along with another unknown person had gone to him and told him that they were to commit the present dacoity and that he (Moulabux) should also take part in the same but he refused. Moulabux stated that in order to avoid any suspicion against him he went and slept in the night of the incident at the house of Muhammad Khan and informed him about the visit of the three appellants and the object of their visit. The learned Sessions Judge observed about his evidence :‑ "I have seen the witness and say that his evidence may be believed although the conviction is not based on his evidence alone." The statement of Moulabux is not of much evidentiary value in the absence of Vadero Muhammad Khan who was not produced by the prosecution. The presumption of the non- production of Vadero Muhammad Khan is that Moulabux has not made any statement to Vadero Muhammad Khan. If Muhammad Khan had been produced to corroborate Moulabux some weight could be attached to the statement of Moulabux. At any rate the statement of Moulabux would also require corroboration. The last piece of evidence relied upon by the Sessions judge is the retracted confession of Photo in which he impli cated himself and the other three appellants before us. The learned Sessions judge has not given any consideration whether the retracted confession was a voluntary one or otherwise. He has acted on this retracted confession and sought corro boration from the evidence of Ahmad, foot‑print rest by Nawazali, the identification by complainant and the evidence of Moulabux. We find from a perusal of the statement of Sajan, Shahali and Latif recorded under section 342 Cr. P. C. that their attention was not drawn to the confession made by Photo, We similarly do not find in the statement recorded by the learned Sessions Judge under section 342 Cr. P. C. of Photo that his attention had been drawn to the confession made by him. In the absence of any question put to the accused persons by the learned Sessions judge in order to explain the confession, the confession cannot be relied upon against any of the appellants. The principle laid down in Dwarkanath (A I R 1933 P. C. 124) and in Rahim Bakhsh (P L D 1952 F. C.) is clearly applicable to the present case. We would therefore discard the confes sion from our consideration altogether. There remains the evidence of Ibrahim complainant, Ahmad, Moulabux and the foot‑print identification by Nawaz ali. We find that none of this evidence can be acted upon independently. The question before us is whether where there are different sets of evidence and neither of which alone can be accepted without corroboration, can each in turn be taken to corroborate the other and joined together, justify the Court to act on such evidence. We are of the opinion that such evidence which requires corroboration cannot corroborate each other and therefore cannot be legal basis for conviction. A Division Bench of the Patna High Court in the case of Dvendra Bhatta Charya and others (A I R 1927 Pat. 257) following the case of Empress v. Jadub Das (I L R 27 Cal. 295.) held "where there are two sets of evidence neither of which alone can be accepted without corroboration, they cannot each in its turn be taken to corro borate the other and join together so as to justify any Court in acting on such evidence." We therefore for the reasons given above set aside the convictions and the sentences passed on the appellants. The two appellants Sajan and Photo who are in jail are to be set free forthwith while the bail bond of Shahali and Latif is cancelled. A. H Appeal accepted.