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Criminal Appeal No. 132 of 1965, decided on 16^th August 1968.

Ss. 395 & 397--‑Dacoity--- Identification of accused‑--Eye‑witness trying to improve upon his Police statement‑Conduct casts serious doubt on credibility of witness--‑Claim of identification of accused on part of such witness, in circumstance, cannot inspire confidence‑---Dacoity committed at night‑---Identification tests, in such cases, generally considered to be of very little evidentiary value.

Channan Singh v. Emperor A I R 1933 Lah. 299; Irjan etc. v. Emperor A I R 1927 Cal. 820; Sucha Singh v. Emperor A I R 1932 Lah. 488 and Gajadhar v. Emperor A I R 1933 Oudh 99 ref.

Ss. 395 & 397--‑Dacoity--- Evidence of recovery of stolen articles‑--Convincing evidence of theft of such articles not forthcoming‑--No sanctity, held, would attach to evidence of recovery in circumstances of case‑--Conviction of accused set aside.

Syed Ali Raza for Appellants.

M. A. Bajwa for A. G. for the State.

This Criminal Appeal filed by Bashir Ahmad son of Ali Muhammad, caste Arain, resident of Chak No. 211/G.B, Bashir Ahmad ion of Miran Bakhsh, a washer man of Chak No. 281/JB and Sharif son of Nizam Din, caste Arain of Chak No. 507/G.B: district Layallpur, is directed against the order of Mr. Muhammad Nawaz Ali Khan Khera, Sub‑Divisional Magistrate, Sadiqabad, District, Rahimyarkhan dated 9th February 1965, whereby he convicted them alongwith their co‑accused Jaffer for offences under sections 395 and 397, P. P. C. with an award of seven years' R. I: each and a fine of Rs. 100, or further two months' R. L. each in default of payment thereof. One of their co‑accused Mukhtar had absconded during the trial and proceedings under section 512 of the Criminal Procedure Code were taken against him. It appears that Jaffer convict has not preferred an appeal against his conviction and sentence.

2. The brief facts, giving rise to the case are, that on 17th July 1962, Khadim Hussain complainant (P. W. 1), a resident of Chak No. 208/P of. Police Station Kot Sabzal, District Rahimyar Khan lodged a report (Exh: P.A.) at the Police Station at 8‑15 a.m. relating to the commission of a dacoity in the house of his neighbour and relation Niaz Ali (P. W. 3) at about 9 p.m. on the previous evening. According to the first information report lodged by the complainant, the latter along with his uncle Nur Muhammad (P. W. 7) on hearing reports of gun shots repaired to the house of Hassan Muhammad (P. W. 6), and on reaching there saw the two decoits one of whom was armed with a gun standing in the shutterless door towards the west of the Ihata. For decoits had already entered the house of Hassan Muhammad and were giving beating to the inmates. Khadim. Hussain complainant did not enter the house of Hassan. Muhammad owing to fear whereas Nur Muhammad picked up courage and went inside. On hearing an alarm some persons of .the village holding licensed, arms fired shots which scared away the dacoits who left after injuring Nur Muhammad Hassan Muhammad aforesaid, Taj Din and Mst. Zainab Bibi (P. W. 8). They had also removed two attach cases from the house of Niaz 'Ali, in the same compound containing Ks. 900. in cash, jewellery worth about Rs. 2,000 and clothes worth Rs. 1,000. Of the injured P. Ws. Niaz Ali had sustained a gun‑shot wound on the leg. On the authority of Nur Muhammad and Hassan Muhammad, it was stated by the complainant that of the culprits Siddiq; Arain of Chak No. 197/P and Hashmat Ali Teli of Chak No: 173/P had been identified by them. The complainant claimed to have clearly and closely observed the two dacoits in moonlight and assisted in the first information report that he could identify them. The report as lodged by the complainant on the morning following the night of occurrence at a distance of 19 miles from the spot contained two significant omissions: Firstly; no description whatever was given of any of the six dacoits and secondly, the details of the stolen property contained in. the two attach ‑cases were also missing. It appears that four months later the clue to the case was furnished by Mukhtar, the absconding accused who was being interrogated by A. S. I. Humayun Khan (P. W. 24) of the C. I. A. Staff Layallpur; in connection with the investigation of another case F. I. R. No. 46 of 1961 under section 457/380 Police Station Rajana. The ball having thus‑ been set rolling, subsequently besides Mukhtar aforesaid, the three appellants, their cp‑accused Jafar and one Shera who was discharged, were. arrested in this case. Several recoveries of the stolen jewellery and clothes were also made at the instance of the appellants and their co‑accused; but I do not consider it necessary to give the details for the reasons to be presently stated:‑

3. The prosecution evidence consisted mainly of the eye -witness account given by Khadim Hussain complainant (P. W. 1), Hassan Muhammad (P. W: 6), his brother Barkat Ali (P. W. 2), Niaz Ali (P. W. 3), .Nor Muhammad, (P. W. 7) and Zainab Bibi (P. W. 8), the evidence of identification and that of recoveries. At the trial the prosecution version was further elaborated in that. Sharif appellant being armed with, a rifle, Jafar with a revolver while the others wielding sticks had entered the house of Hassan Muhammad P. W. at about 9 p.m. on .16th. July 1962. Sharif appellant stood, at the gate and the rest entered and demanded Rs. 30,000 from Hassan Muhammad. On his denial they demanded jewellery and started beating him. His wife Mst. Zainab Bibi P. W. tried to intervened was also given a beating. As he tried to make good his escape Niaz Ali P. W. was allegedly fired at by Sharif appellant with his rifle and was hit below the left knee. They then broke open the lock of the house of Niaz Ali and removed two attach ‑cases from there containing cash, jewellery and clothes valued in all at Rs. 4 000. The two attach ‑cases were later recovered on 28th of July 1962 from the sugar‑cane field of one Khuda Bakhsh of adjoining village Chak No. l96/P.

4. All the accused including the three appellants pleaded not guilty to the charge. Bashir son of Ali Muhammad Appellant No. 1, who had allegedly got recovered Dopatta. P. 31 and a piece of lady Hamilton cloth Exh. P. 32 from inside a wooden box in his house, denied this allegation. He also denied that he had sold gold amulets P. 9 to P. 13 and a pair of Silver Survaries P. 31/2, to Muhammad Siddiq P. W. 10, a goldsmith of Samundari district Layallpur for a sum of Rs. 139‑14‑0 in the presence of Muhammad Saeed (P. W. 5) on 4th August 1962, fixing his thumb‑impression on the Bahi of Barkat All P. W. another goldsmith of Samundari in token of receipt of the aforesaid amount. It would be pertinent to point, out that although the recovery memo. Exh. P. F. purports to create to the securing of the Bahi, yet this so‑called book of accounts which obviously contained the receipt hearing the thumb‑impression of Muhammad Bashir appellant has not been traceable on the record. As regards the evidence of identification available against him, he: stated that he was also known to the complainant‑party as they were related to him, and that he had been falsely implicated at the instance of Nur Muhammad P. W. Bashir Ahmad son of Miran Bakhsh appellant No. 2, denied having got recovered from inside his house a piece of lady Hamilton cloth Exh. P. 38, a used Shalwar P. 39, and Georgette Dopatta P. 40, which were allegedly taken into possession vide memo. Exh. P. Z., dated 12th of December. 1962. Likewise he denied having sold to Asghar Ali. P. W. 11, goldsmith of Gojra, two gold rings P. 5 and P. 6, valued at Rs. 73‑12‑0 and a pair of Sarwaries P. 7 priced at Rs. 15‑4-0 and having executed a receipt for a total amount of Rs. 89 on the Bahi of Asghar Ali which was allegedly taken into possession vide memo: Exh. P. K. Although the aforesaid articles were produced by Asghar Ali P. W. and were taken into possession vide memo. Exh: P, J. the original Bahi secured by the police vide memo. Exh. P. K., containing a receipt, thumb‑marked‑ by Bashir Ahmad appellant in token of the receipt of Rs: 89 is not traceable. While trying to explain away as to how the P. Ws. were able to pick him out during the identification parade, he stated that he had stayed in Chak No. 208/P for two years and a half and that the .P. Ws. knew him before. He further explained that he had been falsely implicated in this case, as a fight had taken place between Jamil son of Nur Muhammad P. W. on the one side and Sultan Ahmad his (appellant's) brother or the other on account of rivalry in a love affair over a Christian girl which has resulted in injuries‑to Nur Muhammad P. W.

Sharif appellant took the position that he had already been shown by the police to the P. Ws. who were thus enabled to pick the alleged recoveries of Shalwar P. 14, Shafoon Dopatta P. 15, and Georgette Dopatta P. 16; a lady shirt P. 17, small shirt P. 18 got effected by him from inside a bharoli in his house and secured vide memo. Exh. P. U. dated 30th of November 1962. He also denied that he had pledged five golden amulets P. 9 to P. 13 with Rooldoo P. W. 13, a goldsmith of his village Chak No. 507/GBM for a sum of Rs. 60 or' that he had executed receipt Exh. P. M. dated 19th of July 1962, in this regard which bore his thumb‑impression. It may be observed that the aforesaid five gold amulets were produced before the police by Rooldoo P. W. aforesaid and were secured vide memo. Exh. P. R. dated the 30th of November 1962. Likewise he denied the allegations that simultaneously with this, his co‑accused Jaffer had also pledged with Rooldoo aforesaid tops P. 8 for a sum of Rs. 8 and had executed receipt Exh. P. L. also dated the 19th of July 1962, which was thumb‑marked in his presence by War. Although the appellants expressed their intention to produce evidence in defence they later declined to do so.

5. Placing full reliance on the testimony of the eye witnesses supported by the identification proceedings Exh. P. Z., conducted by Muhammad' Nawaz Naib‑Tahsildar, Toba Tek Singh (P. W. 3), and further corroborated by the evidence of recoveries, the learned trial Magistrate came to the conclusion that the offence had been fully brought home to the appellants and their co‑accused; Jafar, who had been jointly tried with them in the absence of the absconding accused Mukhtar, and accordingly convicted them as mentioned before.

6. Although the assistance rendered by the learned counsel on both sides was rather disappointing, and I have mostly to fall back on my own perusal of this hopelessly ill‑arranged and disorderly jumble of record in which some of the most important documents, namely, the original bahis containing receipts executed by the appellants Nos. 1 and 2 were missing, not having been duly exhibited and most of the exhibits had been mis -described, I am clearly of the view that the impugned order is unsustainable for more than one reason. Although one has every reason to believe the eye‑witness account given 'by all the injured P. Ws.; namely, Niaz Ali, Hassan Muhammad, Nur Muhammad and Zainab Bibi supported by the uninjured inmate Barkat Ali (P: W. 2) and Khadim Hussain complainant yet it is highly doubtful that they being taken unaware at night time and belaboured by the dacoits some of whom ‑wielded fire‑arms which were actually used, would have been able to clearly identify the dacoits in moon‑light there being no suggestion as to any other source of light facilitating identification of the culprits. Further support is lent to this view by the conspicuous absence of any description whatever of the culprits finding place in the first information report Exh. P. A. lodged on the next morning. Yet another circumstance which is also a pointer to the same direction is a specific reference in Khadim Hussain's report Exh. P. A. to two of the dacoits, namely, Siddiq Arain and Hashmat Ali Teli of Chak No. 03/P. These names were stated to have been disclosed to the complainant by Hassan Muhammad B and Nur Muhammad and yet the police finding them innocent did not challan them. In the circumstances, therefore, it does not stand established beyond doubt that the P. Ws. who placed in such a predicament should have been able to closely observe the culprits so as to render their identification possible.

7. As regards the evidence of identification itself two facts clearly stand out and deserve a special mention. In the first instance, Niaz Ali (P. W. 3) who is the principal witness in the case on account of having received a gunshot injury and being the owner of the stolen jewellery and clothes, had clearly admitted in cross‑examination of having accompanied the appellants to Toba Tek Singh for the apprehension of the accused who were arrested separately. This would render nugatory his evidence on the point of identification. Mst. Zainab Bibi could not identify any of the accused. Again the account given by the complainant himself does not carry conviction, for more than one reason. According to the report Exh. P. A. the complainant on reaching the house of Hassan Muhammad along with his uncle, Nur Muhammad unlike the latter did not enter owing to fear and yet his companion Nur Muhammad who was placed in a similar situation did so without let or hindrance. In his statement at the trial, Khadim Hussain went a step further and stated that Sharif appellant who was standing at the door with a rifle in his hand had threatened to shoot him if he tried to enter the house. It is highly improbable if being placed in such circumstances the complainant would have stayed on and did not chose to runaway. Again, a perusal of the first information report gives a positive impression that he had seen Niaz Ali P. W. in an injured state when he entered the house after the decoits had already left. Since according to the prosecu tion version only one of the accused, later specified as Sharif appellant was standing at the door with a gun or a rifle, which was used by him in injuring Niaz Ali, there seems to be no earthly reason why Khadim Hussain had not been able to see this part of the occurrence with his own eyes, if he were really present at the spot as asserted by him. Again, a perusal of his statement in the Court clearly shows his anxiety to improve upon his police statement casts serious doubt on his credibility. The claim of identification on the part of such a witness after about four months of the occurrence does not inspire confidence. Even otherwise in cases of dacoity committed at night where people are likely to be terrorised, identification tests are generally considered to be of very little evidentiary value. Channan Singh v. Emperor (A I R 1933 Lah. 299), Irjan etc. v. Emperor (A I R 1927 Cal. 820), Sucha Singh v. Emperor, (A I R 1932 Lah. 488) and Gajadhar v. Emperor (A I R 1933 Oudh 99) may be cited as some of the authorities in point. As such it would not be safe to rely merely on this piece of evidence so as to form it the basis of conviction.

8. The second point to lie considered in this regard is the categorical position taken up by the appellants 1 and 2. Bashir son of Ali Muhammad stated that he was related to the com plainant and was thus known to them. Bashir son of Miran Bakhsh positively stated that he had stayed in village 208/P for about two years and a half and that on account of a revelry between Jamil son of Nur Muhammad P. W, and the appellant's brother Sultan Ahmad over a Christian girl a fight had taken place, resulting in injuries to Nur Muhammad P. W. This might possibly have some truth. In short, having considered this piece of evidence in the light of the other concomitant circumstances, I am convinced that the evidence of identification test is not good enough per se to form the basis of conviction,

9. Lastly, I come to the evidence of recoveries detailed, earlier: As pointed out, the first information report did not disclose the details of the stolen articles. The evidence of recoveries can be relied upon only after the prosecution has in the first instance established the theft of the articles alleged to have been recovered at the instance of the appellants. Strangely enough such details of the stolen articles are simply conspicuous by their absence and not a single witness including Niaz Ali and hiss wife Mst. Zainab Bibi said a word about them. All that they deposed in this regard was that they identified the articles recovered. Obviously no sanctity would attach to such an evidence of recoveries which in the absence of convincing evidence of the theft of every single article recovered would amount to putting the cart before the horse. This is a sad commentary on the manner in which the case was handled by the prosecution. It is equally regrettable that such serious omissions which could have been easily supplied also escaped the notice of the learned trial Magistrate. Likewise, the failure on the part of the prosecution to exhibit the books of accounts (Bahis) which contained the relevant receipts bearing thumb‑impressions of the appellants to be identified by the Finger Print Expert‑--whose report also remained unproved made matters still worse for the prosecution.

10. The upshot of the discussion is that the case against the appellants does not stand established beyond doubt in accordance with the legal requirements. I accordingly accept the appeal, set aside the conviction and sentences of the appellants and acquit them. They are already, on bail and their bail bonds stand discharged. The fine if already paid, may be refunded to them. This order will also operate in favour of Jafar convict who has not preferred an appeal.

11. Before parting with this case I would like to observe that the learned Magistrate should have maintained a double record and even the single record prepared in this case is not easily legible. I have already referred to the mis-description of some of the exhibits for instance recovery memos. Exhs. P. J., P. K. and P. X were confused with and described as receipts again there has also been duplication in the marking of exhibits. These observations should be brought to the notice of the learned Magistrate. .

Appeal accepted.

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