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Criminal Appeal No. 356 of 1962, decided on 5th February 1964.
, S. 164‑Confession, retracted‑‑Unsafe to base conviction on, in absence of corrobora tion‑Confession, mentioning facts already known to police and made in sight of policeman although such policeman not concerned with case‑Not relied upon.
Monir's Law of Evidence, 4th Edition, p. 212 ref.
, S. 164‑Confession retracted‑Evidentiary value small against co‑accused‑Fullest corro boration necessary even in case such confession is found to be true and voluntary‑Confession not acted upon even against very maker of it‑Evidentiary value against co‑accused almost nil.
, Ss. 149 & 397‑No accused other than those armed with deadly weapons or causing or attempt ing to cause death or grievous hurt‑Can be held guilty under S. 397‑Provision of S. 149 cannot be invoked for application of S. 397.
, Ss. 397 & 411‑Prosecution story of robbery not believed‑Accused, nevertheless, convicted of offence under S. 411.
Azizullah K. Sheikh for Appellants.
Haider Bakhsh for A. A: G. for the State.
Dates of hearing : 30th and 31st January 1964.
This is an appeal from the order of the learned Additional Sessions Judge, Jacobabad, dated the 21st of July 1962, con victing Qalandar Bakhsh, aged 28 years," Mir Hasan, aged 25 years and Ali Murad, aged 30 years, under section 394 read with section 397, P. P. C. and sentencing them to three years' rigorous imprisonment each.
2. The prosecution case is that on the 12th of November 1961, Narain Das (P. W. 2) and his wife, Dharmi, Dotio by caste and residents of village Noor‑ud‑Din, went to a mill in the nearby village of Gulab Mari to have some corn ground. On the way they met a man who gave his name as Kehar, who asked where they were going. When they told him, he said that he himself was going to Gulab Mari for oil‑cakes. He accompanied them to the mill, which is run by Muhammad Alim (P. W. 4 ) and then went off, stating that he was going to get the oil‑cakes. On his return he went with Narain Das to Muhammad Alim, and asked the latter to have the corn ground quickly. He then again left, stating that he had to bring some other articles from the village. Narain Das meanwhile loaded the flour on his donkey. Kehar again appeared, but did not accompany Narain Das and his wife, stating that he would come by bus.
3. When Narain Das and Dharmi had gone about one and a half miles they saw two persons armed with hatchets standing one on each side of the road. One of them struck Narain Das on the right ear, while the other gave a blow on the head to Dharmi. Both victims fell down unconscious, and meanwhile the culprits removed fourteen gold walis and two silver karis from the person of Dharmi and two gold walis and a small sum in cash from that of Narain Das. Narain Das and Dharmi then recovered consciousness and saw the man they knew as Kehar. The latter called out to the other assailants to be quick and threatened Narain Das and Dharmi that unless they remained quiet, he would kill them. All three then ran away.
4. When the culprits had disappeared Narain Das and Dharmi returned to their village and informed Noor Din (P. W. 5) of what had happened. He accompanied them to Police Station, Dodapur, but were there directed to go to another Police Station, Tajodero, where Narain Das lodged the first information report Exh. 9 at 1‑30 p.m. After recording it Muhammad Umar, S.H.O. "P. W. 10), went to the spot, where he found three foot‑prints. Two were blurred, but the third, which was clear, was shown to Hashim tracker (P. W. 9). The S. H. O. also, recorded the state ments of Muhammad Alim and two other persons, Faiz Muhammad and Shahbaz, who were not produced at the trial.
5. Narain Das and Dharmi were sent to the Civil Hospital, Jacobabad, where they were medically examined by Dr. Mujib‑ur Rahman (P. W. 11). Narain Das had a flapped incised wound, 3" x 1", muscle deep, in front of the root of the right ear, and a bruise, 3" x ", on the middle aspect of the right shoulder‑blade. Dharmi had an incised wound, 1 " x ", scalp deep, on the left side of the frontal region, while the bifurcation of the middle of the margin of the tragus of the left ear was lacerated.
6. Qalandar Bakhsh and Mir Hasan surrendered themselves to the police on the 17th of November, and after interrogating them the S. H. O. went to the village of Ali Murad, who in presence of Khuda Dino (P. W. 8) and one Nabi Dad produced the two silver karis, Exh. A‑1, which were taken possession of vide memo. Exh. 26. He also produced a receipt for ten walis given by Seth Bal Chand (P. W. 6), which were also taken possession of vide memo. Exh. 36.
7. The party then proceeded to the shop of Seth Bal Chand in Jocobabad, where the witness produced the ten walis, which were taken possession vile memo. Exh. 27. At the trial Seth Bal Chand stated that Ali Murad appellant pledged the ornaments with him for Rs. 100, stating that they were the property of his mother.
8. Ali Murad then led the S. H. O. to the shop of Lal Chand (P. W. 7) who produced two walis, Exh. C‑2, which he had pur chased from Ali Murad for Rs. 70.50. The witness had also taken the thumb‑impression of the appellant on his bahi Exh. 4.
All the ornaments above referred to were later correctly identi fied at the hospital by Narain Das and Dharmi as being their property.
9. On the 18th of November Mr. Muhammad Usman, then Mukhtiarkar and Magistrate 1st Class, Jacobabad (P. W. 1), recorded the judicial confessions of Qalandar Bakhsh and Mir Hasan after taking the usual precautions to ensure that the state ments were being voluntarily made. The confession made by Qalandar Bakhsh (not Mir Hasan as given at page 10 of the paper‑book) runs :‑
"My statement is that about a week back I went to the jungle for a quail hunt. Ali Murad son of Naqeef met me there in the jungle. Mir Hasan son of Soomar Brohi was already there. Ali Murad said that one Oudh had come to flour‑mill along with his wife for getting the grain ground. He had gold ear‑rings on his ear while his wife had gold ear‑rings and silver anklets. He suggested that both of us should go with him and rob them of their ornaments. Then all of us went and waited to way‑lay the Oudhs. At about tepehri time, Oudh and his wife were seen coming on a donkey when suddenly we pounced over them. Mir Hasan caused hatchet blow to the woman while I gave hatchet blow to the Oudh. On this both of them fell down. We then removed ten ear‑rings from the person of the woman and two ear‑rings from the person of the Oudh. That night we stayed at the house of Ali Murad. Next day I, Mir Hasan and Ali Murad came together to Jacobabad. We were sitting at a hotel and Ali Murad went to dispose of the ear‑rings. We sold two and pledged ten ear‑rings and brought Rs. 100 in all. Out of this he kept Rs. 40 for himself and gave Rs. 30 to each of us. All of us then went away to our houses from where I was arrested by the police yesterday."
10. Mir Hasan made substantially the same statement but in addition to the twelve ear‑rings mentioned by Qalandar Bakhsh, he added that two anklets were taken from Dharmi.
11. On the 22nd of November, a parade was held at the Sub‑Jail, Jacobabad, by Mr. Din Muhammad, Head Munshi and Magistrate Third Class, for the identification of the three appellants. This witness was not produced at the trial, but the Sub‑Inspector stated that Narain Das correctly picked out Mir Hasan and Qalandar Bakhsh, while Dharmi identified Qalandar Bakhsh and Ali Murad.
12. Two days later, on the 24th of November, a track parade was held by the same Magistrate at which the three appellants were mixed up with other persons and Hashim tracker picked out the foot‑prints of Ali Murad only.
13. The appellants pleaded not guilty and ascribed the case to enmity, Qalandar Bakhsh and Mir Hasan alleging that they had been falsely implicated at the instance of one Nabidad Khan. Both admitted having made the judicial confessions, but contended that the statements had been extorted from them under pressure by the police, who had called and detained their women folk. Ali Murad admitted having pledged ten walis with Seth Bat Chand, but stated that they belonged to his mother. He denied having sold any walls to Lal Chand P. W. and alleged that he had been implicated by Qalandar Bakhsh and Mir Hasan as the latter are the haris of his enemy Gulab Khan. All three appellants admitted that identification and track parades had been held, but the defence position is that the appellants had been shown to Narain Das and Dharmi at the hospital, while their footprints had been obtained before hand by the police. No evidence was led in defence.
14. I shall first deal with the case against Qalandar Bakhsh and Mir Hasan. The learned Additional Sessions Judge did not accept the results of the identification parade in respect of these appellants as reliable in view of the admission of Narain Das at the trial that the police had shown him the appellants at the hospital. It may be added that Dharmi had made a similar state ment before the committing Magistrate though, on being con fronted with it, she pleaded ignorance of having made it. So far as the track parade is concerned, Hashim tracker did not identify the footprints of these two appellants.
15. The case against Qalandar Bakhsh and Mir Hasan thus rests exclusively on their retracted confessions. The learned Additional Sessions Judge has relied on this evidence, but I am unable to agree with him. The position relating to retracted con fessions has been thus laid down in Monir's Law of Evidence, 4th Edition, at page 212 of Vol. I. After discussing the value of retracted confession against a co‑accused, the learned author remarks
As against its maker, however, a retracted confession may constitute a sufficient basis for conviction, provided it is true and voluntary, though even in such a case it is safer and usual to require corroboration.
Adopting the rule of caution referred to above, I am of the opinion that it would be entirely unsafe to convict Qalandar Bakhsh and Mir Hasan on this evidence alone. Not only is corroboration' lacking, but the facts throw some doubt on the truth of the confessions. The contention of the learned counsel for the defence that the confessions only set out what was already known to the police is by no means without substance. As already pointed out, Qalandar Bakhsh's statement makes mention of only twelve walis, ten recovered from the person of Dharmi and two from that of Narain Das. Mir Hasan no doubt mentions that two karis were also taken from Dharmi, but Narain Das clearly stated at the trial that the number of walls of which Dharmi was robbed was not ten but fourteen, and the confessions give no indication of what had happened to the missing orna ments.
16. 1 also agree with learned counsel for the defence that, as there is no honour among thieves, it is somewhat unlikely that Qalandar Bakhsh and Mir Hasan should have remained behind and left Ali Murad to go off to dispose of the ornaments. I am also not inclined to believe that Qalandar Bakhsh and Mir Hasan would have allowed Ali Murad's conduct in keeping back at least two gold walis and the silver karis to pass unchallenged.
17. It may further be mentioned that the atmo3phere of the learned Magistrate's court‑room was not exactly conducive to the making of a free and voluntary confession. Mr. Muhammad Usman stated in cross‑examination at the trial :‑
" My Court has a window on the side of verandah. It has glass panes. Police Patrol occasionally as there is only one cell opposite my office. That police is not concerned with cases but only with judicial lock‑up. The other cell is in north of court room and the remaining six or seven are in the south of my court‑room. Guard‑room is two steps away."
18. Whether or not the police were concerned only with judicial lock‑up, the sight of a policeman patrolling up and downy was scarcely calculated to reassure the appellants.
19. For the above reasons I am of the opinion that the prosecution have failed to establish their case against Qalandar Bakhsh and Mir Hasan beyond reasonable doubt. I accordingly accept their appeal, set aside their convictions and sentences, and acquit them. Their bail bonds are discharged.
20. Coming now to the case of Ali Murad, I am of the opinion that his participation in the robbery is also not conclu sively proved. The first point calling for comment in this connection is that Muhammad Alim P. W. has admitted that he was acquainted with Ali Murad and knew his name. If this is so, I find it difficult to believe that after having taken the trouble of giving a false name to Narain Das and Dharmi, Ali Murad would court exposure by accompanying them to a person who was aware of his real identity. This part of the story does not ring true.
21. Muhammad Alim further stated at the trial
"On the next day I came to know of the robbery of Oads. Oads had come to Tajodero Thana. Oads told me this. I told Oads that Ali Murad Rind had come with the complainant.
In cross‑examination he also stated that Narain Das and Dharmi were accompanied by the police on the occasion of the above visit. Accepting his statement as correct, it follows that the police learned of the identity of Ali Murad on the 13th of November. Muhammad Umar, S. H. O., on the other hand, states
"On 17‑11‑61 accused Qalandar Bakhsh and Mir Hasan surrendered. I interrogated them. I went to the village of Ali Murad. Accused Ali Murad came and I interrogated him."
This carries the clear implication that Muhammad Umar did not learn the identity of Ali Murad until he came to interrogate Qalandar Bakhsh and Mir Hasan on the 17th of November, which is completely inconsistent with the evidence of Muhammad Alim that he had given this vital clue not only to Narain Das and Dharmi, but also to the police accompanying them, four days earlier.
22. Taking the above facts into consideration, it appears to me that the position adopted by Muhammad Umar is correct, and that it was only on the 17th of November that the identity of Ali Murad became known. If this is so, Muhammad Alim has deliberately perjured himself, and the question arises why he should have done so. The learned Additional Sessions Judge considers Muhammad Alim to be a completely independent witness, but I cannot agree. By his own admission he is the servant of Gulab Khan, already referred to. He must, therefore, have been familiar with Gulab Khan's affairs, but when asked whether there was any enmity between Ali Murad appellant and Gulab Khan, he pleaded ignorance. Reference may here be made to the statement of Khudadino (P. W. 8), the only recovery witness produced apart from the Sub‑Inspector. Khudadino is Gulab Khan's neighbour, but when asked whether there was any murder case against some relations of Ali Murad appellant, he also pleaded ignorance. The fact of the murder case in question is clearly established, learned counsel for the defence having called my attention to Bacho and others v. The State (P L D 1963 Kar. 891) In that case ten accused, including Ali Murad son of Nakeef Rind, were charged with conspiracy to commit the murders of two persons, Noor Muhammad and Nazar Muhammad. Ali Murad and. six others were acquitted. Paragraph 5‑A of the judgment shows that the case of the three appellants was that they had been implicated at the instance of Gulab Khan, a prosecution witness, while in paragraph 13 the learned Judge observed
Although attempts have been made to deny his presence at the scene with the police, Saifal, Exh. 17 has admitted that Gulab Khan was their nekmard and had come to the scene with the arrival of the police and Gulab Khan told the police that Arbab, Jumo and Sadoro were the culprits and that they should be arrested. Besides S. H. O. Barkhurdar, P. W.19, who recorded the further statement‑of Allahrakhio, has admitted that P. W. Allahrakhio had said in his further statement that he had given the names of Ali Murad and Arbab on account of previous enmity
Since the question whether there was enmity between Ali Murad and Gulab Khan is a relevant fact in this case, the judgment referred to above is admissible as tending to show the existence of that enmity. On the basis of the above facts I am unable to hold that either Muhammad Alim or Khudadino is an indepen dent witness.
23. The learned Additional Sessions Judge has relied upon the retracted confessions of Qalandar Bakhsh and Mir Hasan as evidence of the participation of Ali Murad in the robbery, but it is settled that the evidentiary value of a retracted confession against a co‑accused is small and that the very fullest corroboration of such a confession is necessary, even where the confession is true and voluntary. In the present case I have held, for the reasons already given, that little or no reliance can be placed on the con fessions even against the makers, and their evidentiary value a against Ali Murad is, therefore, nil.
24. Another point which has been overlooked by the learned Additional Sessions Judge in convicting Ali Murad under section 394 read with section 397, P. P. C. is that according t the statement of Narain Das at the trial Ali Murad was unarmed. It is well settled that section 149 cannot be invoked for the application of section 397, P. P. C. and that only those accused D 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.
25. For the above reasons I set aside the conviction and sentence of Ali Murad under section 394/397, P. P. C., and acquit him of this charge.
26. On the other hand, the prosecution have established the guilt of this appellant of an offence under section 411, P. P. C. Although Khudadino, in view of his connection with Gulab Khan, is not an independent witness, Ali Murad himself admits having pledged ten gold walis with Seth Bal Chand P. W., while an the circumstances I am also inclined to accept the statement of Lal Chand that Ali Murad was the person who sold two gold walls to him. So far as the first of these transactions is concerned, I do not believe Ali Murad's assertion that the walls belonged to his mother. No attempt was made to produce the mother in evidence to support this story, and in the circumstances I accept the identification of the walls in dispute by Narain Das andl Dharmi as correct. I accordingly convict Ali Murad and sentence him to three years' rigorous imprisonment.
K B. A. Appeal partly accepted.
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