Evidence Act 1872 Indian Evidence Act 1872, Sections 114 and 133 On the basis of the confession of the accused on the conviction of the accused, his conviction from the strict view of the law would not be illegal under section 133 of the Indian Evidence Act on the basis of mere confession. ? Totti Khan, in which its maker imposes itself on himself as much as his accomplices, whom he pleads guilty to, was found guilty under Section 114, Example (a).
P. L. D. 1949 Baluchistan 6
Single Bench
A. R. Khan, J. C.
KHASTA HUSSAIN and others‑Convict‑Appellants
Versus
CROWN‑Respondent
Criminal Appeals No. 20, 21 and 22 of 1948, decided on 18th Octo ber, 194, from the order of Session Judge, Baluchistan, dated 31st July, 1948.
(a) Indian Penal Code, 1860), Ss. 380, 457, 461 and 109‑ Convictinn on basis of confessions made without any inducement or promise and recovery of booty only held justified.
The confessions by themselves sufficient for the conviction of their makers, especially when corroboration in material particulars is forth coming in the shape of recovery of a large part of the stolen property
(b)‑ Indian Evidence Act, 1872, Ss. 114 and 133‑Conviction on basis of confession of co‑accused upheld.
Taking strict view of law his conviction would not have been illegal under section 133 of the Indian Evidence Act merely on the basis of the confession of Toti Khan in which its maker implicates himself as much as his co accused, who he criminates, Conviction justified under section 114, illustration (a).
A. R. Khan J. C.‑These are jail appeals by Khalil Ahmad, Khasta Hussain and Toti Khan, tae first of whom was convicted by the Sessions Judge in Baluchistan of offences under sections 457, 380 and 461 of the Indian Penal Code and the latter two of abetment of the same offences under section 109 of the Indian Panel Code and sentenced to 3 years on each count under sections 457 and 380 and to 2 years' R. I. under section 461, Indian Panel Code with a direction that the sentences shall run concurrently.
The case for the prosecution is, that on 9th August, 1947 the three convict‑appellants, Misri Khan, another convict who has not appealed and one Muslim who is absconding, conspired to break into the strong room of the Quetta Treasury and steal from there money which they agreed to share in equal parts. According to their plan Khasta Hussain and Toti Khan, both Police Constables, who were attached to Treasury Guard at that time, were to allow others access to the strong room during their beat duty. Accordingly on the night of 9th/10th August between 2 a. m. and 4 a.m. when these two Constables were on guard duty over the Treasury, Khalil Ahmad Muslim and Misri Khan arrived at the Treasury and were admitted into the strong room where they broke open certain boxes with the help of a large pair of scissors, and iron‑bar and a screw‑driver and removed from there cash and currency notes to the value of Rs. 55,816‑13‑4.
The theft was discovered in the morning when all those, who were on guard duty the previous night were taken to the City. Police Station for interrogation. On 12th August, Misri Khan Volunteered to indicate the place where a part of the bony, representing his own share and that of Khasta Hussain and Toti Khan, lay hurried. The investigating officer accompanied by Misri Khan and a number of respectable witnesses proceed ed to the spot in a lorry and Misri Khan directed the driver where to go to. He led them to the bed of a dry streem at the foot of the Murdar hills meat East Camp and after removing a rock picked up an old shirt in which were two cloth bags containing currency notes and some change which on being examined and counted by the witnesses were found to amount to Rs. 31,422‑10‑0. Two of the five conspirators namely Khalil Ahmad and Muslim left Quetta in the meanwhile. Sub‑Inspector Arbab Abdul Aziz of Quetta Police Force was deputed on 12th August with a police party to effect their arrest. The Sub‑Inspector left Quetta by mail on 12th and on 13th when the train arrived at Montgomery, one of his companions noticed Khalil on the platform. They caught hold him. He would not straight way point out the compartment in which he was travelling or had his luggage nor would he say anything about the whereabouts of Muslim. He pretended that he had forgotten his compartment and went up and down the train with tire Sub‑Inspector 1n the meanwhile the train started and the Sub Inspector got into the dining car along with Khalil Ahmad. At Okara Khalil pointed out his own luggage in a second class compartment and also that of his companion Muslim but the latter had in the meanwhile slipped away. The luggage of both these persons was taken possession of by the Police and an inventory was made out before witnesses. From Khalil Ahmad's suit‑case, the key of which was produced by him before witnesses a sum of Rs. 11,168‑9‑0 was recovered in various denominations along with a number of cash memos. showing purchases made by trim at Sukkur. Two suit‑cases alleged to belong to Muslim who had disappeared along with keys, had to be broken open. From one of these a sum of Rs. 11,632,5 was found concealed in the pocket of a brown coat. Both these amounts were examined and counted before witnesses who signed the inventories of, their recovery made by the Police on the spot
Nearly a week later. Misri Khan and Toti Khan volunteered to make a confession and this was recorded by a Magistrate First Class after fully complying with the requirements of sections 1,54 and 364 of the Criminal Procedure Code. They made a clean breast of the whole affair, though Misri Khan denied having actually participated in the burglary. They admit having made these confessions but protest that they did so on a promise being held out to them that they would be promotes: to the rank of Havildars.
The prosecution nave examined as many as 12 witnesses and they include the persons before whom a sum of Rs. 31,422‑10‑0 was recovered from the bed of a stream on the indication of Misri Khan and two sums of Rs. 11,168‑9‑0 and Rs. 11,632‑2‑5 were recovered from the luggage of Khalil Ahmad and Muslim, at Okara. They also include those who travelled in the same second class compartment in which Khalil Ahmad and Muslim had placed their luggage at Montgomery and from where Muslim, scenting trouble, had disappeared before the train arrived at Okara‑
I have heard the appellant carefully and have also examined the records in detail. Khasta Hussain anti Toti Khan confine themselves only to protestations of innocence urging that they male confessions only on being assured, immunity from punishment and on being promised promotion while Khalil Ahmad, discussing evidence adduced against him, points out certain discrepancies therein and contends that he was falsely implicated in his case by City Inspector Muhammad Akbir khan, who bore a grudge against him,
I agree with the learned Sessions judge that the case for the prosecution rests mainly on the confessions of Misri Khan and Toti Khan, on the recovery of Rs 31,422‑10‑0 made at the instance of Misri Khan and on the recovery of two sums of Rs. 11,168‑9‑0 and Rs' 11,632‑2‑5 from the luggage of Khalil Ahmad and Muslim at the instance of former at Okara. There is certainly no corroborative evidence whether direct or circumstantial, to support the allegations of previous conspiracy made in the two confessions. Like the Sessions Judge, I cannot for a moment entertain the plea of the two appellants, Misri Khan and Toti Khan that their confessions were the result of any inducement or of promise. The makers of these confessions are members of the Police force and no evidence whatsoever is forthcoming to support this plea. I agree with the learned Sessions judge that these confessions are by themselves sufficient for the conviction of their makers, especially when corroboration in material particulars is forthcoming in the shape of recovery of a large part of the stolen property from a place pointed out by Misri Khan.
As regards Khalil Ahmad, I would say that taking strict view of law his conviction would not have been illegal under section 133 of the Indian Evidence Act merely on the basis of the confession of Toti Khan in which its maker implicates himself as much as his co‑accused whom he criminates y although I agree that it is now an established rule of practice that such an evidence is not relied on unless its corroboration in material particulars is forthcoming. I propose to deal with aspect of the case in some detail.
Khalil Ahmad's flight from Quetta immediately after the theft and recovery of a large amount of money, equal to his share of the booty, the possession of which he could not account for, certainly give rise to grave inculpatory presumptions against him, as justified by section 114, illustration) (a) of the Evidence Act. The circumstances in which this recovery was made were such as would satisfy any reasonable mind that the money must have been dishonestly obtained. It may be indicative not merely of the offence of receiving this money with guilty knowledge but of any other more aggravated offence connected with it. He has merely denied the fact of recovery and made no efforts to account for his possession of such a large amount. The idea of a Sub‑inspector of Police going to the eaten, of planting a sum of Rs. 11,168‑9‑0 on this particular accused and another sum of Rs. 11,632‑5‑2 on his companion, who has absconded, in order to achieve success in his case, is obviously preposterous and unbelievable.
Turning to certain discrepancies in evidence pointed out by Khalil Ahmad, on a careful scrutiny and analysis of the evidence, I do not find these discrepancies as material. Minor discrepancies will always be found when honest witnesses coma to depose, If witnesses are tutored they would naturally take care to tell precisely the same story. Discrepancies upon immaterial points should not discredit a witness. On the contrary in my opinion, the witnesses in whose testimony even minor discrepancies cannot be detected should be regarded with suspicion. Memory is after all fallible and whenever two persons attempt without previous arrange ments to reline an incident, discrepancies will invariably be discovered. All that the Court have to see in such cases is, that the witnesses do not differ in material facts which have direct bearing upon the case before them.
In my opinion there is absolutely no force in this contention of the appellant Khalil Ahmad
Khalil Ahmad's last contention that he was falsely implicated by the City Inspector Muhammad Akbar Khan, owing to a grudge which the Inspector bore against him, also does not seem to hold water when regard is had to the fact that it was S. I Arbab Abdul, Aziz who arrested Khalil Ahmad at Okara and recovered Rs. 11,168‑90 from his possession before witnesses and that it was D. S. P. Mian Afwaj‑ud‑Din who was incharge of the investigation of this case.
Accordingly after hearing the appellants and examining the evidence thoroughly, I left with no doubt in my mind that the appellants were rightly convicted of the offences for which they were punished.
As regards the sentences I agree with the view taken by the learned Sessions judge that it is a case of the nature in which deterrent sentences are called for, I cannot overlook the fact that the burglary planned and executed in such a daring manner with the complicity of the Police‑men on guard duty was of the worst possible description. The gravity of the offence cannot, therefore, be over‑stated and in my opinion the, sentences awarded are by do means unduly severe.
The result is, that I uphold the convictions and sentences passed and dismiss these appeals.
K. M. A. Appeal dismissed.
Related judgments — Judicial Commissioner Court Balochistan, 1949
