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Criminal Appeal No. 261 of 1949, decided on 20th July 1949 from the order of Additional Sessions Judge, Multan at Muzaffargrah, dated the 5th January 1949.

(a) Punjab Public Safety Act (11 of 1947), S. 37‑Magistrate has no legal authority to record, under S. 208, Criminal Procedure Code, statement of prosecution witness before committing case to Sessions Court‑Such statement cannot be utilised at Sessions trial by invoking S. 288, Criminal Procedure Code or S. 33, Evidence Act (I of 1872).

Section 37 of the Punjab Public Safety Act (II of 1947) substitutes a special procedure (namely, that if in the opinion of the Magistrate the case ought to be tried by the Sessions Court, the Magistrate shall on perusal of the police report make over the case to the Sessions Court for trial) for the procedure prescribed under section 203 to section 220 for inquiry into cases triable by the Sessions Court.

If, therefore, by the relevant date the provisions of section 37 of the Punjab. Public Safety Act had been extended to a case, the learned Committing Magistrate could have no legal authority to record the state ments of witness and any such record could not be utilized either under section 288, Criminal Procedure Code or section 33 of the Indian Evi dence Act.

(1931) I L R 51 Mad. 561 ; (1881) I L R 3 Mad. 48 and (1926) I L R 7 Lah. 396 referred to.

There is authority for the proposition that if a particular procedure has been prescribed for doing a thing it has to be done in that particular manner or not at all.

I L R 17 Lah. 629 and 63 I C 372 relied on.

(b) Evidence Act (I of 1872), S. 133‑Approver‑Evidence if required to be corroborated in material particulars as a rule of pru dence though not of strict law.

As a matter of strict law, there would be no bar to basing a con viction on the uncorroborated testimony of an approver alone. However, by a continuous current of decisions it has now been accepted as a rule of prudence that the approver's testimony should not be acted upon unless it is corroborated not only generally, but also against each individual accused, in material particulars, so as to establish a connection between that accused and the commission of the offence.

(c) Discrepancies‑Varying statements made in Court after 2 years of happening as to times of recovery and presence of persons Discrepancies not of much weight.

Where witness made varying statements as to the times of the recoveries or as to the presence or absence of certain persons at the material time, not much weight can be attached to these discrepancies considering that the witnesses were called upon to give evidence in Court about two years after the recoveries had been effected.

The different capacities of observation and recollection of past events possessed by the P. Ws. would furnish a natural explanation for these variations.

Mahmud Ali for Appellants.

Ghias Muhammad for the Advocate‑General, for Respondent.

‑Khadam Hussain, Bahadur, Naza, son of Jana, Naza, son of Janwar and Muhammad Bakhsh alias Nikka were tried under section 395/397, Indian Penal Code, in the Court of the learned Additional Sessions Judge. Multan at Muzaffargarh. The learned judge acquitted Muhammad Bakhsh alias Nikka but convicted the remaining accused persons under section 395 Indian Penal Code and sentenced them to three years' rigorous imprisonment each. The convicts have appealed against their convictions and sentences.

The prosecution case was that on the night between the 12th/13th February 1947 the five accused persons accompanied by Allah Bakhsh approver, P. W. 1, committed a dacoity at the house of Jetha Ram, Nangpal, in Basti Sohrab in the Muzaffargarh district and in the course of the dacoity they removed cash, ornaments, clothing etc. worth about Rs. 11,000. One of the dacoits was armed with a gun while the others had sticks with them. They first called out Jetha Ram from his house and overpowered him after causing him some injuries. The gunman fired his weapon to scare away the villagers. They then made Jetha Ram open his safe from which they removed ornaments and cash. Some trunks were also opened and clothing and ornaments removed therefrom.

Jetha Ram lodged the first information report next morning at 6 a. m. at the Thana. In this he mentioned that there were 11 dacoits, one of whom was armed with a gun, one with a hatchet, four with chhuras and five with dangs. They had muffled their faces and, therefore, the informant was not able to give their description. The property removed consisted of Rs. 7,000 in the form of currency note, some gold and silver ornaments and some pro‑notes and stamp papers as well as clothing. The description of some of the ornaments was given in the first information report but it was added that the full details of the stolen property could only be ascertained after reference to other members of the family and those details would be supplied later.

During the investigation Muhammad Bakhsh accused was arrested on 3rd April 1947. Allah Bakhsh approver and BBahadur accused were arrested on 6th March 1949, Naza Chunjri, accused, on 16th March 1947 and Naza Panwar, accused, on 17th March 1947. Khadim Hussain, appellant, had been arrested earlier. From the approver as well as the accused persons except for Muhammad Bakhsh, stolen property was recovered which was identified by Jeth Ram and his relatives as among that which had been removed during the dacoity.

A track identification parade was also held at which one, Nura tracker, is said to have picked out the tracks of Khadim Hussain accused as corresponding with the tracks of one of the culprits at the spot.

The principal witness in the case is Allah Bakhsh approver. Learned counsel for the appellants tried to argue that Allah Bakhsh was not proved to have taken part in the dacoity and that he was in all pro bability a got‑up witness. He pointed out that according to the first information report there were 11 dacoits whereas the approver alleged that they were in all six persons. The approver explained that while leaving the house of Jetha Ram, one of them had purported to count the number of the dacoits in order to mislead the occupants of the house and that the number was given out as 11. Learned counsel for the appellants has characterized this attempt at reconciling the story in the first information report with that of the approver as an afterthought. Jetha Ram, who had become an evacuee at the time of the trial, could not be examined in the Sessions Court. His statement, however, have been recorded by the Committing Magistrate and this was transferred to the Sessions file and read out as evidence in the case. Jetha Ram supported the explanation given by the approver and suggested that he had been misled by one of the dacoits giving out their number as 11. In view of the details of the weapons, alleged to have been carried by the culprits, as given in the first information report, this explanation is somewhat unconvincing It may be that in this respect the approver is not telling the truth and Jetha Ram might have considered it prudent to water down his own statement to the level of that of approver.

Learned counsel for the appellants also urged that the approver on his own admission had previously committed a theft along with Muhammad Bakhsh alias Nikka and was under security under section 109, Criminal Procedure Code at the time of the occurrence. He, therefore, thought that the approver was not a reliable person. I have gone through the approver's statement with some care. To my mind he is no better and no worse than the general run of approvers.' I am satisfied that he was himself one of the dacoits. The articles re covered from him by the police were identified to be part of the stolen property. The recovery is established by unimpeachable evidence on the record. I cannot, therefore, accept the contention that Allah Bakhsh was a got‑up witness.

The approver fully supports the prosecution allegations against all the appellants. He had named Muhammad Bakhsh alias Nikka also among the dacoits but the learned Additional Sessions Judge gave him the benefit of the doubt and acquitted him on the ground that no re covery of any stolen property was made from him. As a matter of strict law, there would be no bar to basing a conviction on the uncorroborated testimony of an approver alone. However, by a continuous current of decisions it has now been accepted as a rule of prudence that the approver's testimony should not be acted upon unless it is corroborated not only generally, but also against each individual accused, in material particulars, so as to establish a connection between that accused and the commission of the offence. This is obviously a salutary rule. While dealing with a self‑confessed criminal the Court has to be on its guard against possible substitutions of the guilt by the innocent or the im plication of innocent persons in addition to the real delinquents.

The first circumstance to be noted in this case is that the approver was not inimically disposed towards any of the appellants. Prima facie, therefore, there was no reason why he should have falsely implicated any of the appellants in this case. As observed above, however, in the case of each appellant it is essential that independent corroboration of the approver's statement on material particulars should be available.

The main corroboration of the appover's story against the appel lants is provided by various recoveries made by the police at the in stance of appellants. Articles Exhs. P. 25 to P. 47 were produced before the police by Khadim Hussain from his house. From Bahadur's house were recovered Exh. P. 87 to P.‑97. Naza Chunjri appellant had dug up the articles Ex. P. 48 to P. 69 from under a beri tree at his well, Naza Panwar appellant had produced Exhs. P. 70 to P. 86 from his house. These articles consist of cash and ornaments. Independent witnesses were produced by the prosecution to establish these recoveries. The learned counsel for the appellants criticised their evidence on the ground that they had made varying statements as to the times of the recoveries or as to the presence or absence of certain persons at the material time. Not much weight can be attached to these discrepancies considering that. the witnesses were called upon to give evidence in Court about two years after the recoveries had been effected. In these circumstances i would be pedantic to expect a dead uniformity in the testimony of these P. Ws. The different capacities of observation and recollection of past events possessed by the P. Ws. would furnish a natural explanation for these variations. They are not sufficient to discredit their evidence.

The learned counsel for the appellants then contended that as regards the alleged recovery from Khadim Hussain the matter was open to doubt. He referred to the evidence of Ghulam Qasim Shah (P. W. 8) and Karim Bakhsh (P. W. 13) in this connection. They deposed thatthe articles Exhs. P. 25 to P. 47 were recovered from the house of Khadim Hussain in his absence and that only Nawab, a brother‑in‑law of this appellant, was present in the house at that time. It is significant that these are the only two P. Ws. who belong to the village of Khadim Hussain. Apparently they have been influenced on behalf of the appellant to favour him. The other P. Ws. concerning this recovery made consistent statements to the effect that the appellant himself was responsible for this recovery. I have no doubt that in this respect, Ghulam Qasim Shah and Karim Bakhsh have not told the truth.

Again the learned counsel tried to make much of the fact that the recovery at the instance of Naza Chunjri took place from under a beri tree at his well. Learned counsel pointed out that this was an open place accessible to everybody but the evidence is that the appellant himself dug up the articles which were buried in the ground there. In the absence of any explanation on the part of this appellant as to how he came to have knowledge of the place of burial of these articles, the inference would be legitimate that he himself had buried them. I have no hesitation in agreeing with the learned Additional Sessions judge, therefore, that this appellant was in possession of stolen property for which he failed to account.

I have been taken through the evidence of all the witnesses of recovery and I am satisfied that their depositions represented the truth in this case. All the appellants denied the recoveries at their instance and pleaded not guilty but failed to lead any evidence in their defence. They did not claim any of the recovered articles to be their property. Their possession of these properties is satisfactorily established. The only question then is whether it was proved that these recovered articles were part of the property removed by the dacoits from the house of Jetha Ram.

Jetha Ram and the other non‑Muslim witnesses who were produced before the Committing Magistrate to identify the recovered property had all migrated to India as a result of the disturbances following in the wake of the partition of India. They were consequently not available at the time of the trial. The learned Additional Sessions judge trans ferred their statements as recorded by the Committing Magistrate to the Sessions file and they were read out as evidence in the case. Learned counsel for the appellants has challenged the correctness of this procedure.

The argument for the defence is that Muzaffargarh district had been declared to be a "dangerously disturbed area" within the meaning of section 2 (b) of the Punjab Public Safety Act, 1947 and consequently by virtue of section 37 of that Act, the Code of Criminal Procedure must be deemed to have been amended so that the Committing Magistrate had no legal authority to record statements of any witnesses in this case. The Committing Magistrate could have recorded evidence under section 208, Criminal Procedure Code only but section 37 of the Punjab Public Safety Act lays down that the Code of Criminal Procedure would be deemed to have been amended and sections 208 to 220 of that Code to be substituted by the provisions of section 37. These provisions make it imperative for a Magistrate to make over a case triable by the Sessions Court, to that Court merely on the perusal of the police 'report in the case. If the Punjab Public Safety Act, therefore, had been extended to Muzaffargarh district at the time when the accused persons were produced before the Committing Magistrate it would be obvious that recourse could not be had by the learned Magistrate to section 208, Criminal Procedure Code. Section 288 of the Criminal Procedure Code could not have been invoked in this case for the simple reason that these witnesses bad never been produced and examined in the Sessions Court. A plain reading of the section would make it clear that such production and examination is a condition precedent to the section being applied to a case.

The position under section 33 of the Indian Evidence Act would not be materially different. That section provides that evidence given by a witness in a judicial proceeding or before any person authorized by law to take it, is relevant for the purpose of proving in a subsequent judicial proceeding, or in a later stage of the same judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or if his presence cannot be obtained without an amount of delay or expense which under the circumstances of the case, the Court considers unreasonable. In the circumstances envisaged by learned Counsel for the appellants, the Committing Magistrate could not be described as a person authorized by law to record the impugned statements, not the proceeding in which such statements were recorded could be described as a judicial proceeding because it would not be referable to any enactment of the Legislature. On the contrary such a proceeding would be against the express words of the statute namely, section 37 of the Punjab Public Safety Act, which prescribes that the Magistrate shall on perusal of the police report in a case triable exclusively by a Court of Session etc,, make over the case to the Sessions) Court having jurisdiction. There is authority for the proposition that if a particular procedure has been prescribed for doing a thing it has to, be done in that particular manner or not at all. This principle of lap was laid down by their Lordships of the Privy Council in Tazir Ahmad s case, I L R 17 Lah. 629 ; 63 I A 372. I would, therefore, agree with the learned Counsel that if by the relevant date the provisions of section 37 of the Punjab Public Safety Act had been extended to the case the learned Committing Magistrate could have no legal authority to record the statements of witnesses and any such record could not be utilized either . under section 288, Criminal Procedure Code or section 33 of the Indian Evidence Act. Reference in this connection may be made to Sanlzappa Rai and others v. Kuraya Pujari and others, I L R 1931, 51 Mad. 561, Rama Reddi's cases I L 8,1881, 3 Mad. 48 and Buta Singh v. Crown I L R 1926, 7 Lab. 396.

The question, however, remains as to the date from which the Punjab Public Safety Act was applied to the Muzaffargarh district.

For this purpose I got the office to search for the relevant copies of the Government Gazette. It transpires that Muzaffargarh district was not declared to be a "dangerously disturbed area" within the meaning of section 2 of the Punjab Public Safety Act, till the 8th October, 1947, when a notification was issued by the West Punjab Government declar ing the whole of the West Punjab to be "dangerously disturbed area". Although there had been previous notifications as regards other districts no such notification is traceable with regard to Muzaffargarh district alone. Now I find that the learned Committing Magistrate started proceedings in this case in July 1947 and completed them on 19th February 1948. The statements of Jetha Ram, Dr. Hukam Chand, who had examined him for his injuries, Mst. Bhanju Bai, and Asanand P. Ws. were recorded before the 8th October 1947. The other non‑Muslim witnesses were examined by him on or after that day. It is clear, therefore, that the statements of Jetha Ram, Mst. Bhanju Bai and Asanand, do not come within the mischief of section 37 of the Punjab Public Safety Act and there could have been no legal objection to their being read as evidence at the Sessions trial under section 33 of the Indian Evidence Act. These witnesses have migrated to the other Dominion could no longer be brought before the trial Court without an inordinate amount . of delay and expense such as would have been unreasonable under the circumstances of the case. I agree, however, that the statements of the remaining non‑Muslim witnesses could not have been so treated.

Even the statements of Jetha Ram, Mst. Bhanju Bai and Asanand are sufficient to establish the identity of the property recovered from the appellants with that removed during the dacoity. A Muslim witness also appeared at the trial to state that one of the articles, namely, hash Exh. P. 96 was his and had been pawned with Jetha Ram. This was recovered from Bahadur accused. The %statement' of Sultan Mahmud (P. W. 12) may be referred,to in this connection. I would hold there fore, that the property recovered from the appellants was sufficiently identified as part of the property removed during the dacoity. This is a very strong corroboration of the approver's statement against the appellant.

There is no rebuttal on the part of the appellants of the prosecu tion evidence against them. I have no hesitation in agreeing with the Additional Sessions judge, therefore, that the offence under section 395, Indian Penal Code had been brought home to all the appellants. They were rightly convicted and there is no ground for interference with their sentences. The appeal is dismissed. Learned counsel for the appellants will be informed of the result.

The property recovered in this case either belonged to non‑Muslims who are now evacuees or to Muslims who had pawned it with the non‑Muslims. The former category of property and the latter category to the extent of the pleader's rights possessed by the non‑Muslims would constitute evacuee property. This property should, therefore, be handed over to the Deputy Rehabilitation Commissioner of the District concern ed, on behalf of the Custodian, and that officer should be supplied with particulars of the owners. The Muslims who have to pay the money due from them, to the Deputy Rehabilitation Commissioner for the benefit of the evacuee concerned, before they can be allowed to get back the pawned articles.

A. H. Appeal dismissed.

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