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Criminal Revision No. 502 of 1968, decided on 21st November 1968.
S. 392‑Robbery‑Recovery of extorted articles from possession of accused unmistakably identifying accused with culprits mentioned by complainant in F. I. R.‑Conviction of accused for robbery justified.
Ghulam Farid and another v. The State P L D 1964 Pesh. 12 ; Abdul Raziq v. The State P L D 1964 Pesh. 67 and Araz Muhammad and another v. The State P L D 1965 Kar. 119 ref.
Extra judicial confession corroborated by recovery of articles subject of robbery supported by evidence of disinterested witness‑Such confession, though retracted, may safely be acted upon.
Interested and inimical‑Evidence of such witness corroborated by recoveries and extra judicial confession‑Held, cannot be discarded.
N. A. Shami for Appellant.
Tajammul Hussain for the State.
Gulab Shah (35) and Allah Dad (45), together with Qudrat Shah and Sher Ahmad, were tried by Mr. Akhtar Joseph, Magis trate (with powers under section 30, Cr. P. C.), Rawalpindi on a charge under section 392/34, P. P. C. By judgment dated 14‑3‑1968, they were convicted under section 392/34, P. P. C. and sentenced to undergo rigorous imprisonment for four years each and to pay a fine of Rs. 100 or in default to undergo further R.I. for one month. The convicts preferred an appeal to the Additional Sessions Judge, Rawalpindi, who by judgment dated 24‑4‑1968, acquitted Qudrat Shah and Sher Ahmed, giving them the benefit of the doubt. He, however, maintained the convic tion of the petitioners but reduced their sentences to two years' R. I. each in addition to the fine already imposed. Gulab Shah and Allah Dad preferred the present revision petition from their conviction and sentences.
2. The prosecution case, briefly stated, is as follows:----- Rafaqat Ali P. W. was employed as Machine Operator at Ordnance Factory, Wah. On 18‑8‑1967, he came out of the factory at 4‑30 p.m., after obtaining necessary permission and gate pass, and went to see a film show. Bahadur Khan P. W. another employee and co‑villager also witnessed the film show, from 6 to 9 p.m. Thereafter, Rafaqat Ali and Khan Bahadur set out for their village Brahma on cycles. As they approached the Nullah, called Kala Nullah, at about 10‑30 p.m., Gulab Shah (armed with a pistol), Qudrat Shah (armed with a spear), Allah Dad (armed with a pistol) and Sher Ahmad (armed with a spear) appeared there and threatened Rafaqat Ali and Khan Pahadur with their weapons and eventually relieved Rafaqat Ali of (i) a wrist watch "Citizen make", which belonged to his brother, Muhammad Anwar, and had a brown hand (ii) factory Pass No. 08471, containing his photograph, and (iii) currency notes worth Rs. 70. Nothing was recovered from Khan Bahadur. Thereafter, the culprits allowed them to go. Rafaqat Ali and his companion identified the culprits in the moon light.
3. Rafaqat Ali proceeded to Police Station Wah Cantt. and reaching there at 11‑30 p.m., lodged the report (Exh. P. C.). It was recorded by S. I. Baqa Muhammad (P. W. 8).
4. S. I. Akhtar Ali, investigated the case. He proceeded to the spot, reaching there at 5 a.m. on 19‑8‑1967. He prepared the site plan (Exh. P. F.). He reached village Brahma at about 8 a.m. on 19‑8‑1967. He sent for Sher Ahmad and Qudrat Shall (acquitted accused) and arrested them at 8‑30 a.m. Leaving village Brahma at 8‑30 a.m, he proceeded, along with the arrested persons, towards Anwar Chauk, Wall. On the way he took with him Malik Ali Arif (P. W. 2) and Malik Muhammad Afsar (P. W. 3), from Loser Sherfu. He reached the shop of Akbar Din (P. W. 1) in Anwar Chauk Wall, at 10‑30 a.m. Ghulab Shah and Allah Dad petitioners were present at that shop. Gulab Shah petitioner removed the wrist watch "Citizen make" from his wrist and produced the same before S. I. Akhtar Ali, who took the same into possession vide memo. Exh. P. A. Allah Dad petitioner produced the entry pass (P. 4) and currency notes worth Rs. 70 (P. 3/1‑7) in the purse (P. 2). The photo graph of Rafaqat Ali was affixed to the identity card. S. I. Akhtar Ali took these articles into possession vide memo. Exh. P. B. Bath these memos. were attested by Malik Akbar Din (P. W. 1) Malik Ali Arif (P. W. 2) and Malik Muhammad Afsar (P. W. 3). Malik Akbar Din (P. W. 1) stated that Gulab Shah and Allah Dad had confessed before him that they together with Qadrat Shah and Slier Ahmad had robbed Rafaqat Ali of Rs. 70, the wrist watch and the identity card. He added: "Both the accused requested that they have come to know that Rafaqat P. W. had gone to lodge a report and that they were prepared to return the stolen property and that the matter should be patched up". As S. I. Akhtar Ali appeared on the scene at that very moment, Gulab Shah and Allah Dad produced the subject‑matter of robbery to him.
5. The petitioners (and similarly the acquitted accused) pleaded not guilty to the charge. The defence of Gulab Shah was as follows :‑
"Manzur a cousin of Akbar Din P. W. contested the previous B. D. election. My cousin Mehr Shah opposed him. For this reason I have enmity with Akbar Din P. W. Akhtar P. W. has managed this false case against me. Rafaqat P. W. is a cousin of Akbar P. W. I have enmity with Khan Bahadur P. W. I was challaned for the murder of Muhammad Yaqub, a collateral of Khan Bahadur P. W. but was acquitted... Ali Arif and Muhammad Afsar P. Ws. and Banaras came to me as Jirga but I was going to make an applicaticn against Akbar Din for polling bogus votes, because he polled bogus votes. For that reason I have enmity with them."
The defence plea of Allah Dad was as follows :‑
"My brother Mirza Ahmad gave evidence against Muhammad P. W. in a case under section 307, P. P. C. Rafaqat and Anwar P. Ws. are real brothers. Akbar Din and Anwar are collaterals."
They examined six witnesses in defence.
6. At the trial the direct evidence was furnished by Rafaqat Ali and Khan Bahadur P. Ws. The substance of their evidence was that on the fateful night they were returning on cycles to the village, when near Kala Nullah they were surprised by the petitioners and their accomplices (acquitted accused) who were armed with pistols and spears and on a threat to their lives, they relieved Rafaqat Ali for the wrist watch, currency notes worth Rs. 70 and his gate pass. Rafaqat Ali proceeded to lodge the report. He duly proved the report (Exh. P. C.).
Akbar Din (P. W. 1) stated that at about 10 a.m. Gulab Shah and Allah Dad petitioners came to his shop and confessed that they, together with Qudrat Shah and Sher Ahmad, had robbed Rafaqat Ali of a wrist watch, currency notes worth Rs. 70 and the identity card. They requested Akbar Din to intercede and have the matter patched up with Rafaqat Ali. At that very moment S. I. Aklttar Ali, with Qudrat Shah and Sher Muhammad under arrest, and accompanied by Ali Arif and Muhammad Afsar, P. Ws., came to his shop. Gulab Shah produced the watch, which the Investigating Officer took into possession vide memo. Exh. P. A. The currency notes and the identity card were produced by Allah Dad, which were also taken into possession vide memo. Exh. P. B. Akbar Din attested the memos.
Malik Ali Arif (P. W. 2) and Muhammad Afsar (P. W. 3) stated that they set out from Loser Sherfu to go to their shops at Wall Cantonment. S. I. Akhtar Ali met them on the way and asked them to accompany him. Then they all went to Anwar Chauk at Wah, at the shop of Akbar Din. At the Chauk, Gulab Shah and Allah Dad produced the wrist watch, currency notes and the identity card, which were taken into possession by the Investigating Officer, as stated above. Muhammad Anwar P. W. (brother of Rafaqat Ali) identified the wrist watch (P. 1), purse (P. 2) and the identity card (P. 4) as the property of Rafaqat Ali. Muhammad Anwar stated that he had purchased the wrist watch by means of receipt (Exh. P. D.) and then gave it to his brother it, Rafaqat Ali.
7. Muhammad Nawaz (D. W. 1) merely stated that the police did not visit village Brahma. He did not appear before the police during the investigation of the case. Pir Hazrat Shall stated that he was prosecuted for the murder of one Yaqub and that Dost Muhammad, father of Rafaqat Ali, appeared as a witness against him. He also stated that Akram son of Bahadur was a collateral of the said Yaqub. Mst. Mahmooda Jan, wife of Akram, was grand‑daughter of Dost Muhammad, father of Rafaqat Ali P. W. He added that Akbar Din P. W. was collateral of Rafaqat Ali P. W. Bostan son of Muhammad Khan (D. W. 3), Bostan son of Muhammad (D. W. 4) Abdul Aziz (D. W. 5) and Khuda Dad Khan (D. W. 6) furnished alibi of Sher Ahmad, acquitted accused.
8. The learned Magistrate accepted the ocular evidence and convicted all the four accused persons. On appeal, the learned Additional Sessions Judge, however, did not believe Khan Bahadur (P. W. 5). He did not believe Rafaqat Ali P. W to the extent that he referred to the presence of Khan Bahadur P. W. Since the recoveries were made from Gulab Shah and Allah Dad petitioners only, he acquitted Qudrat Shah and Sher Ahmad. He maintained the conviction of Gulab Shah and Allah Dad but reduced their sentence, as stated above.
9. Before me, learned counsel appearing for the petitioners raised the following contentions :‑
(a) The material witnesses are related and interested. Besides, they are inimical to the petitioners. Their statements did not deserve to be relied upon.
(b) The lower appellate Court erred in so far as on the same evidence it convicted the petitioner about acquitted Qudrat Shah and Sher Ahmad accused.
(c) The Investigating Officer did not search the houses of the ‑accused persons and did not recover the alleged weapons of offence. In the absence of such weapons in proof, section 392, P. P. C. was not attracted.
(d) Akbar Din (P. W. 1) is on good terms with the police and therefore, is almost identified with them, with the result that the extra‑judicial confession, alleged to have been made to him, was questionable. In any case, since the so‑called confession was retracted, no conviction could be founded thereon.
10. P. Ws. 1 to 4 and 6 are Moghalas by caste. Rafaqat Ali (P. W. 4) and Muhammad Anwar (P. W. 6) are brothers. Ali Arif (P. W. 2) and Muhammad Afsar (P. W. 3) are residents of Loser Sherfu, whereas Rafaqat Ali and Muhammad Anwar are residents of Brahma. Malik Akbar Din (P. W. 1) is resident of Wah. Pir Hazrat (D. W. 2) asserted that Khan Bahadur P. W. 5, was a collateral of Muhammad Yaqub. Akbar Din P. W. denied that he was related to Rafaqat Ali or Khan Bahadur. It follows that all the P. Ws. are not related inter se.
One Yaqub was murdered, and, in 1957, Pir Hazrat Shah, Phool Pir Shah and Gulab Shah (petitioner) were prosecuted. Dost Muhammad, father of Rafaqat Ali, P. W. 4, appeared as an eyewitness against them. Copy of his statement is Exh. D. W. 2/A. Akram is a cousin of that Yaqub. Grand daughter of Dost Muhammad was married to Akram. It follow that Rafaqat Ali "and Muhammad Anwar P. Ws. could possibly" have enmity against Gulab Shah petitioner on account of the murder of said Yaqub.
11. Ali Arif (P. W. 2) and Muhammad Afsar (P. W. 31, disinterested witnesses, established that at about 10‑30 a.m on 19‑S‑1967, in the shop of Malik Akbar Din (P. W. 1) the petitioners produced the wrist watch, the purse and the currency notes before the Investigating Officer. Rafaqat Ali, when he Evade the report (Exh. P. C.) at 11‑30 p.m. on 18‑8‑1967, stated Eliat his wristwatch was of "Citizen make" and had a brown band. On the following day, at about 10‑30 a.m. Gulab Shah petitioner produced the watch (P. 1) of Citizen make, with a own band. Muhammad Anwar P. W. identified the said watch as the one purchased by him vide receipt (Exh. P. D.) and one made over to Rafaqat Ali after the purchase. Rafaqat Ali identified the watch as one which belonged to him and had been robbed by Gulab Shah petitioner. The evidence, regarding recovery and the memos. Exhs. P. A. and P. B., is unimpeachable. Allah Dad petitioner produced the identity card bearing photo-graph of Rafaqat Ali.
12. The recovery of the wrist watch, the purse, identity card and the currency notes unmistakably identify the petitioners with the culprits who had been mentioned by Rafaqat Ali in the F.I.R. lodged on the 18th of August 1967. The culprit belonged to village Brahma to which also belonged Rafaqat Ali arid Khan Bahadur. Rafaqat Ali and Khan Bahadur clearly identified the culprits beyond doubt. The aforesaid recoveries corroborated the assertion made by them. The Courts below are justified in holding that Gulab Shah and Allah Dad had robbed Rafaqat Ali of the said articles. It has been laid down in P L D 1964 Pesh. 12 P L D 1964 Pesh. 67 and P L D 1965 Kar. 119, that the credibility of a witness is indivisible unless such witness is otherwise corroborated. In the instant case, Rafaqat Ali is corroborated by the recoveries. The lower appellate Court was; therefore, justified in accepting the statement of Rafaqat Ali as against the petitioners, although it declined to access his statement as against Qudrat Shah and "her Ahmad and, giving them the benefit of the doubt, acquitted them. The conclusion reached is not open to exception on this round. .
13. The confession made by Gulab Shah and Allah Dad in the presence of Akbar Din P. W. was voluntarily made. Akbar Din was not a person in authority. The confession is corroborated r the recoveries which are supported by evidence of disinterested persons. It is true that the confession has been retracted. But as the confession is supported by the recoveries, it may safely be acted upon. The contention is rejected.
14. Dost Muhammad, father of Rafaqat Ali, and Muhammad Anwar P. Ws., did appear as witnesses in the case relating to the murder of Yaqub. Dost Muhammad was related to Yaqub deceased. Under the circumstances, the evidence of Rafaqat Ali, and Muhammad Anwar is to be accepted with caution. Since the statement of Rafaqat Ali is corroborated by the recoveries and the confession made before Akbar Din, his statement cannot be discarded and may be accepted.
15. It is true that no weapons were recovered. Had any such weapons been recovered, they would have furnished corroborative evidence. At present the question, simply, is whether Rafaqat Ali is to be believed As stated above, in view of the evidence regarding recovery, the statement made by Rafaqat Ali is acceptable. Once his statement is accepted, section 392, P. P. C. is attracted. The contention raised by the learned counsel for the petitioner is without force.
16. In view of what has been stated above, the revision petition is dismissed.
Petition dismissed.
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