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Appeal No. 501 of 1953 decided on 17th November 1953, from the order of the Sessions Judge, Sialkot, dated the 11th June 1953.
Joint trial of receiver of Property looted in dacoity along with persons involved in dacoity who were charged with dacoity with murder under S. 396 P. ‑P. C.‑Held, in order.
S. D. was charged and convicted under sections 412/414 P. P. C. at a joint trial with the' remaining accused who were charged and convicted under sections 395 and 396 P. P. C. On objection being taken that the joint trial was illegal inasmuch as the offence alleged against the other appellants was not of dacoity alone but also one of murder committed during the commission of that dacoity made punishable by section 396 of the P. P. C.
Held, the mere fact that the appellants other than S. D. were, in addition to being persons accused of an offence of dacoity (which offence includes theft), persons accused also of another offence, would not make the joint trial of Shukar Din with them illegal, if, as in the present case, those appellants' case be jointly tried for the two offences.
Corroboration of statement of accomplice necessary‑Greater caution in case of approver's statement‑Mere absconding of accused no corrobora tion‑Guilty conscience must be established‑‑Recovery of stolen Property‑Corroboration.
It is well settled that no conviction should be based on the statement of an accomplice, unless it is corroborated in material particulars.
The corroboration required must be not only general corro boration of the statement of the accomplice but also against each of the accused persons before that person can be convicted of an offence.
That when dealing with the evidence of an approver greater care is called for.
Before absconding can be used against an accused person it must be established that be absconded not because, though innocent, he was afraid of being arrested but because he had a guilty conscience and cases are not uncommon in which innocent persons when convinced that they were going to be arrested have absconded.
It is not necessary that corroborative evidence by itself should establish the offence deposed to by the approver. Recovery of looted property from possession of accused coupled with the statement of approver that those accused were his companions in the dacoity is enough to prove that they bad taken part in the dacoity
‑Doroity with murder‑Whether and when accused should be charged under Ss. 302/149 P. P. C. rather than under S. 396.
Muhammad Shaw and Mahmud Shah, for Appellants.
S. A. Mahmud Assistant Advocate‑General and M. H. Munir (on 17‑11‑1953), for Respondent.
‑The joint trial of Shahna, Raja, Sobna, Rafi, Alli and Paralli under sections 395 and 396 and of Shukar Din under section 412/414 of the P. P. C. resulted in the conviction of all of them of the offences of which they were tried. Shahna was sentenced to death under section 396, while the other five found guilty of dacoity with murder were sentenced to transportation for life. Shukar Din was sentenced to three years' rigorous imprisonment under each of sections 412 and 414, the sentences being ordered to run concurrently. Mr. M. A. Rahman, Sessions Judge, Sialkot, who passed the above sentences, has referred the sentence of death to this Court for confirmation as required by section 374 of the Cede of Criminal Procedure and the convicted persons have presented appeals against their convictions and sentences. Shahna and five others who were convicted under section 396 of the P. P. C. have presented a joint appeal, which is Criminal Appeal No. 501 of 1953, while Shukar Din has presented a separate appeal, Criminal Appeal No. 502 of 1953. As the questions of fact and law which arise in the two appeals and the reference for confirmation are almost identical, these three matters will be disposed of together.
The case arose out of a dacoity committed on the night of the 7th of November 1950, in the area of village Buri Arain in the district of Sialkot at the house of Hayat Muhammad Lambardar, The dacoits, who were seven or eight in number, took away considerable property including cash and one of them killed Muhammad Yaqub son of Hayat Muhammad lambardar. It was alleged that two of the eight dacoits were carrying firearms, one of which was a rifle and the other a gun. The inmates of the house, some of whom received injuries, did not know the dacoits, and, therefore, the first information report, which was made by Hayat Muhammad Chowkidar of village Buri Arain on the 8th of November 1950 at about 6-30 a.m. at Police Station Daska, which is at a distance of about five miles from the scene of the occurrence, did not contain the names of the culprits. In the first information report it was said by Hayat Muhammad Chowkidar that Hayat Muhammad Lambardar, whose house bad been looted by the dacoits, will be able to give the details of the culprits, but it transpired that the lambardar was unable to do so,
The dacoity remained untraced for about two weeks but during that time suspicion appears to have fallen on Narain Singh alias Nawab. This man was a resident of village Sahib Rihan, which is at a distance of about two miles from Buri Arain. He was a Muslim by birth but became a Sikh and again reverted to Islam at the time of the establishment of Pakistan. He appears to have had a chequered career of crime and it was possibly for that reason that the suspicion was entertained of his complicity in the dacoity at the house of Hayat Muhammad lambardar. On the 18th of November 1950 Narain Singh alias Nawab was arrested and when subjected to interrogation appears to have given information which was considered by the police sufficient to justify his being tendered a pardon on the condition that he disclosed true facts about the dacoity at the house of Hayat Muhammad lambardar. A pardon was in due course tendered to Narain Singh alias Nawab who, on the 6th of December 1950, made a detailed statement before Mr. S. A. Haq, who was in those days posted as a Magistrate of the First Class at Sialkot.
The direct evidence produced by the prosecution at the trial was the deposition of the approver who made a lengthy statement detailing his connection with the appellants, the theft at the house of Hayat Muhammad lambardar on the night of the 7th of November 1950, the distribution of the booty and disposal of a part of the looted property. The statement of the approver before the police had resulted in the arrest of the other appellants, four of whom, namely, Raja, Sohna, Rafi and Shukar Din, gave information which led to the recovery of some property. The prosecution. therefore, relied upon the statement of the approver corroborated by the recoveries against Raja. Sohna, Rafi and Shukar Din appellants, while against the other three appellants reliance was placed on the statement of the approver and the fact that they absconded from their house.
Before dealing with the facts of the case, it appears necessary to dispose of a contention raised during arguments that the joint trial of Shukar Din appellant in Criminal Appeal No. 502 of 1953, with the six appellants in Criminal Appeal No. 501 of 1953 was not allowed by law. The general rule as enunciated in section 233 of the Code of Criminal Procedure is that for every distinct offence there shall be a separate trial, but that very section mentions some exceptions. These exceptions are contained in sections 234, 235, 236 and 239 of the Code of Criminal Procedure and the joint trial in the present case took place because of section 239 of the Code of Criminal Procedure, the relevant part of which reads as follows :‑
"The following persons may be charged and tried together namely:---
(e) Persons accused of an offence which includes thefts, extortion, or criminal misappropriation, and persons accused of receiving or retaining, or assisting in the disposal or conceal ment of, property possession of which is alleged to have been transferred by any such offence committed by the first‑named persons, or of abetment of or attempting to commit any such last‑named offence".
It was argued that clause (e) of section 239 of the Code of Criminal Procedure had no application to the present case because the offence alleged against the other appellants was not of dacoity alone but also one of a murder committed during the commission of that dacoity made punishable by section 396 of the P. P. C. In my opinion, this argument is without force, because the mere fact that the appellants other than Shukar Din were, in addition to being persons accused of an offence of dacoity (which offence includes theft), persons accused also of another offence, would not make the joint trial of Shukar Din with them illegal, if, as in the present case, those appellants case be jointly tried for the two offence.
The only direct evidence against the appellants was that of the approver. It is well settled that no conviction should be based on the statement of an accomplice, unless it is corroborated in material particulars. I have already indicated that there was no recovery from Alli, Paralli and Shahna appellants, nor was there any evidence to corroborate the statement of the approver that Shahna was the person who fired the shot which killed Muhammad Yaqub deceased. The learned trial judge appears to have been of the view that as the truth of the statement of the approver against Raja. Sohna, Rafi and Shukar Din appellants was established because of the recoveries from them, very little corroboration of the statement of the approver was required for convicting Alli, Paralli and Shahna appellants. This, however, was not the correct view. No doubt, section 133 of the Evidence Act enacts that there is nothing to prevent a conviction being based on the uncorroborated testimony of an accomplice but innumerabe judicial decisions starting with a period beyond the memory of man have laid down that a conviction should not be based on the statement of an accomplice unless it is corroborated in material particulars as is mentioned in Illustration (b) of section 114 of the Evidence Act. The reason for this caution is obvious. An accomplice in a crime is a person of by no means strong moral fibre and it is not only wise but necessary that before a conviction is based on the statement of such a man, the Court should be convinced that the statement made by him is correct. When the statement of an accomplice is corroborated the risk of convicting a person on the statement of a witness, who is a self‑condemned criminal, almost disappears and it is for that reason that Courts insist on corroboration of the statement of an accomplice. Being a man of by no means high moral standards, an accomplice cannot be considered to be above substituting the names of innocent persons for those of his confederates so that while his statement that he took part in a crime and that in that crime he was assisted by some persons may be correct, the names of his accomplices or some of them may not be correct as he may have substituted the name of an innocent man for that of a guilty one. It is, therefore, obvious that the corroboration required must be not only general corroboration of the statement of the accomplice but also against each of the accused persons before that person can be convicted of an offence.
What has been said above applies to the evidence of all accomplices but I am of the opinion that when dealing with the evidence of an approver greater care in called for. The reason for this additional caution is that the approver has been given the promise of a pardon and cases can arise where a person who took no part in a crime poses to have been a participant in it, secure in the knowledge that he ran practically no risk in tarring himself with the same brush as he did the others. What the Court has to see in a case in which the prosecution case rests mainly on the deposition of an approver is whether or not it was established that the approver participated in the crime he deposes about and whether or not his statement with regard to each of the accused persons is corroborated in material particulars. No standard of corroboration required can be laid down as it obviously must depend on the circumstances of each case.
If the matter is considered in the manner indicated above, the conviction of Alli, Paralli and Shahna appellants does not appear justified. The learned trial judge has mentioned that these three appellants had left their village Borh Bath and has used that circumstance as corroboration of the statement of the approver. Before absconding can be used against an accused person, it must be established that he absconded not because, though innocent, he was afraid of being arrested but because he had a guilty conscience and cases are not uncommon in which innocent persons when convinced that they were going to be arrested have absconded. Muhammad Aslam, Sub‑Inspector Police, (P. W. 29), stated that Shahna and Paralli had been arrested in some other case and had been sent to him from there. In these circumstances it cannot be said that Shahna and Paralli appellants absconded to avoid arrest in the present case and the circumstances has no value even as a piece of corroborative evidence. Alli appellant pleaded as did Paralli and Shahna that he absconded as he was involved in another case. There is nothing to show that this plea was wrong but at any rate mere absconding cannot in my view, for the reasons detailed already, furnished corroboration of the approver's statement. Having considered the case of Alli, Paralli and Shahna appellants from all aspects, I have arrived at the conclusion that their convictions were not justified and I would consequently accept their appeal, decline to confirm the sentence of death passed on Shahna appellant and order that these three appellants shall be set at liberty forthwith.
I will now address myself to the cases of the other appellants. After considering the statement of the approver and the other material on the record, I have no doubt in my mind that Nawab approver was one of the persons who committed the dacoity in the house of Hayat Muhammad on the night of the 7th of November 1950. The question to consider, therefore, is whether or not the statement of the approver is corroborated against each of the four appellants whose cases remain to be dealt with. Against Raja appellant, the prosecution led evidence that on the 12th of December 1950 he dug out a place underneath the threshold of the inner room of his house and the following ornaments were recovered:‑
1. Ten beads of golden kantha containing wax, weighing about 1 tola, 4 mashas, 3 rattis.
2. One golden taweetri, weighing 2 tolas.
3. One maiyan and 10 golden tikar, 2 tolas, 5 mashas.
With regard to this recovery, there is the evidence of Nasir Ahmad lambardar of Gojra, Tehsil Daska, (P. W. 22), and Muhammad Sadiq, Sub‑Inspector, (P. W. 24), which there is no reason to doubt. The appellant did not claim the ornaments and the prosecution produced evidence which establishes conclusively that these ornaments were part of the property stolen from the house of Hayat Muhammad lambardar on the 7th of November 1950. The plea of the appellant was that though the ornaments alleged to have been recovered from him, which were mentioned in the memo. Exh. P. W. 31/C., were not recovered from him, a bar of gold was and Nathu Khan, (D. W. 1) gave evidence in support of this plea. This witness, who is a lambardar of village Isharke, where Raja appellant resides, and had signed the memo. Exh. P. W. 31/C, was declared hostile in the Court of the committing Magistrate and was not produced by the prosecution in the trial Court. I have considered the deposition of this witness very carefully and find myself in agreement with the learned trial judge that the witness was not reliable. The owners of the recovered ornaments have proved that they were stolen from the house of Hayat Muhammad on the 7th of November 1950 and I, therefore, hold that the statement of the approver against Raja appellant .is corroborated by the recovery of stolen ornaments from his possession.
With regard to Sohna appellant the prosecution led evidence that he had given information on the 28th November 1950 which led to the recovery of the following articles from him :‑
1. One inam of gold weighing 6 mashas.
2. 19 beads of kantha of gold weighing 2 tolas, 5 mashas,
3. One sanghara of kantha of gold weighing 2 mashas, rattis. .
4. One kantha of gold with wax weighing 3 mashas, 4 rattis.
5. Bolak of gold about 1 tola.
6. Golden nali containing beads green and red weighing.
7. Taweez of gold weighing 1 tola.
8. 10 currency notes of Rs. 10 each and one currency note of Rs. 100.
This recovery was deposed to by Qamar‑uz‑Zaman, Sub‑Inspector, (P. W. 8) Nasir Ahmad lambardar (P. W. 22), Muhammad Sadiq (P. W. 24) and Muhammad Aslam, Sub‑Inspector, (P. W. 29) whose depositions there is no reason to doubt. That the articles other than the currency notes were stolen on the 7th of November 1950 from the House of Hayat Muhammad lambardar is established beyond all reasonable doubt from the statements of the owners of these articles who had appeared as witnesses. I would, therefore, hold that the statement of the approver against Sohna appellant is corroborated by the recovery of stolen property from him.
The case of Rah appellant stands on the same footing as that of the other two appellants. This appellant produced the following ornaments:-
1. Inam kantha of gold weighing 7 mashas, 3 rattis.
2. 19 beads of kantha of gold containing wax, weighing 2 Colas, 6 mashas, 3 rattis.
3. Mali with sanghara containing wax weighing 6 mashas, 3 rattis.
4. Golden dandi containing red nag, weighing 11 mashas, 3 rattis.
5. Golden tikha, weighing 11 mashas.
6. One nama of gold weighing 7 mashas, 7 rattis.
7. 4 silver bangle, weighing 14 tolas, 4 mashas.
8. One band of silver, weighing 4 tolas.
9. 4 kheses.
(This recovery has been proved by Qamar‑uz‑Zaman, Sub‑Inspector, P. W. 8), Nasir Ahmad lambardar (P. W. 22) and Muhammad Aslam, Sub‑Inspector, (P. W: 29). The appellant admitted that the police bad searched his house, adding that his wife had produced some ornaments which were different from those alleged by the prosecution and Nathu Khan (D. W. 1) supported this plea. I have already expressed my view about the veracity of Nathu Khan (D. W. 1), which I do not see any reason to change. That the ornaments recovered from this appellant, which are detailed in Exh. P. W. 31/B, were stolen on the night of the 7th November 1950 from the house of Hayat Muhammad lambardar, is established by the evidence led by the prosecution. I would, therefore, hold that the statement of the approver against Rafi appellant was also corro borated by the recovery of certain stolen articles from his possession.
One piece of evidence used against Shukar Din appellant was that he had accompanied the approver to the shop of Mahmud Ali Shah (P. W. 12) where both of them bad sold some gold ornaments and had given fictitious names. P. W. 12 produced a register containing an entry which bore two thumb impressions, but while the prosecution could prove that one of the thumb impressions was that of the approver, they could not establish that the other one was that of Shukar Din appellant, who denied that he had ever gone to the shop of Mahmud Ali Shah (P. W. 12) This recovery, in my view, cannot be used against the appellant because Mahmud Ali Shah produced no ornaments and only a gold bar and it is not, therefore, established that the ornaments sold were a part of the booty from the house of Hayat Muhammad lambardar though the approver says that they were. The other piece of evidence against Shukar Din appellant was that he had sold 4 silver bangles weighing 11 Colas, 8 mashas, one silver sagla weighing 10 tolas, 2 mashas and one kara of silver weighing 4 tolas which have been proved to be a part of the stolen property to Ali Bakhsh Silversmith (P. W. 13). Shukar Din appellant when questioned about the sale of these articles admitted that he bad sold them explaining that he had done so on behalf of Nawab approver. The entry in the bahi of Ali Bakhsh (P. W. 13) shows that Shukar Din had given his correct name and address. and the plea of Shukar Din that when he sold the silver ornaments to Ali Bakhsh, he did not know that they were the proceeds of a theft appears to be by no means unreasonable. As Shukar Din appellant is not proved to have been anything but an innocent agent of the approver, I do not think that the sale by him to Ali Bakhsh of certain stolen ornaments can prove an offence under section 412/414 of the P.P.C. against him. I would, therefore, give the benefit of the doubt to Shukar Din and acquit him.
The question to consider is whether the recovery of a part of the stolen property from Raja, Sohna and Rafi appellants coupled with the statement of the approver that these three appellants were his companions in the dacoity committed at the house of Hayat Muhammad lambardar was sufficient to prove that they had parti cipated in the dacoity. The learned counsel for the appellants urged that the recoveries by themselves were not sufficient to establish that these three appellants had taken part in the dacoity and proceeded to argue that the corroborative evidence must by itself establish the offence deposed to by the approver but is obvious that this argument cannot be accepted. It the corroborative evidence was by itself sufficient to bring home the guilt to the accused persons, it would not be necessary to have the statement of the approver. All that is required is that there should be some evidence which would convince the Court that the statement of the approver against the accused was not false. Considering the recoveries, I am of the view that the statement of the approver that Raja, Sohna and Rafi appellants were his companions in the dacoity committed at the house of Hayat Muhammad lambardar on the 7th of November 1950 was correct. I hold, therefore, that these three appellants were rightly held to have participated in the dacoity.
Before I part with the case, I consider it necessary to point out that in the circumstances of the present case, the conviction should have been under section 302/149 and not under section 396 of the Pakistan Penal Code. The difference between sec tion 302/149 and section 396 of the Pakistan Penal Code is not merely academic because though the maximum sentence for the two offences is the same, one of the alternative sentences in the case of an offence under section 396 is imprisonment which may extend to ten years, while the only alternative sentence of the offence under section 302/149 is transportation for life. As no minimum sentence is prescribed for an offence under section 396 of the Pakistan Penal Code, a dacoit convicted under this section may sometime escape with a grossly inadequate sentence. If a case of murder committed during the course of a dacoity were, irrespective of the circumstances, to be held to be punishable only under section 396 of the Penal Code the framer of the Code will have to be presumed to have intended to enact that even an intentional murder committed in the course of a dacoity in furtherance of the common object of the dacoits or in furtherance of their common intention, was not as heinous as ordinary murder, which will be doing the framers a good deal of injustice. The definition of dacoity in section 391 of the Pakistan Penal Code makes it clear that the offence will amount to dacoity only if the participants are five or more. The common object of the dacoits is to be either theft or extortion and it is obvious that they form an unlawful assembly within sec tion 141 of the Pakistan Penal Code. As persons employed in committing a dacoity are an unlawful assembly, section 149 of the P. ‑P. C. will apply to their acts and the death caused by one of them will make the others guilty of murder if the causing of death was in prosecution of the common object of the unlawful assembly and even if it was not that it was known to be a likely result. It is proved beyond all reasonable doubt that the dacoits were at least seven in number, one of whom carried a rifle and another a gun, while the rest carried some other weapons. When seven persons armed as heavily as the dacoits in the present case were, to go to commit theft in a house, they must know that death was likely to be caused at least by persons who carried firearms.
Section 396 of the P. P. C. could not have been intended to apply to cases in which section 149 can be invoked for making each dacoit liable for the murder committed by one of them. This section, which is in the following terms:‑
"If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or transporation for life or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
Will, in my view, apply where the murder committed was neither in the furtherance of the common object of the dacoits nor was it a result which was known to be likely. For example, if one of the dacoits in the course of the dacoity happens to see a person who has run away with his wife and kills him, the other dacoits cannot escape liability under section 396 of the P P C simply because the murder resulted as the dacoit responsible for it had a personal grudge against the victim, but it may not be possible to convict the companions of the murderer under section 302/149 of the P. P. C. Another class of cases‑ to which section 396 of the P. P. C. may apply in preference to section 302/149 of that Code is where, without his companions knowing it, one of the dacoits carries a weapon with which he kills someone in the course of the dacoity. In such a case if the common object of the dacoits was not to commit murder, the murder committed cannot be reason ably said to have been known by the companions of the person who committed it to be the likely result. In view of what I have said, I am of the opinion that those proved to have participated in the present dacoity were guilty of murder and punishable under section 302/149 of the P. P. C. As, however, it was not the prosecution case that any of the three appellants who have been found guilty was directly responsible for killing Muhammad Yaqub, the alter native punishment prescribed for an offence under section 302/149 has been imposed on all three of them and there is no petition for enhancement of their sentence, I would content myself with dis missing their appeal.
The result, therefore, is that while Shahna, Alli, Paralli and Shukar Din are acquitted and are to be set at liberty forthwith, the appeal of Raja, Sohna and Rafi appellants being dismissed, the sentences imposed on them are maintained.
.‑I agree that the appeal of Shahna, Alli, Paralli and Shukar Din be allowed, that they be acquitted and set at liberty forthwith, I also agree that the appeal of Raja, Sohna and Rafi be dismissed and their sentences maintained. I do not feel it necessary to express an opinion on the question whether the conviction should have been, under section 302/149 P. P. C. rather than section 396 P. P. C. as the question was not fully argued before us.
A.H.
Order accordingly.
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