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Criminal Appeal No. 327 of 1959, decided on 7th July 1960.
‑Approver‑Unworthy of credit unless corroborated in material particulars by reliable in dependent evidence‑ Cor'roboraliV2 evidence to indicate that approver's story, substantially true.
‑Belonging to a gang of dacoits‑Essential ingredients of offence.
In order to establish the connection of the gang with a particular dacoity, it is not necessary for the prosecution to show the complicity of every one of the members of the gang in that dacoity. After coming to the finding that there was a gang whose purpose was to habitually commit dacoities, it will be sufficient, if it is established that one or more of the members of tie gang took part in a particular dacoity in order to make the gang responsible for it.
Section 400 of the Pakistan Penal Code lays down that whoever belongs to such a gang he is guilty of an offence under that section. It is evident, therefore, that in order to establish the guilt of an accused under this section, it is not incumbent upon the prosecution to show that a particular accused, belongs to such a gang, did actually take part in any one or more of the dacoities concerned. The participation of an accused in any dacoity is evidence establishing his object for such connec tion. The association in order to be penal must not be of a casual nature and must be for the purpose of committing dacoities habitually. Such association must be shown to have been spread over a sufficiently long period of time, In order to establish that the person concerned had identified himself with a group of persons whose common purpose was the habitual commission of dacoity.
Khilwan and others v. Emperor A I R 1928 Oudh 430 and Kader Sunder v. Emperor 16 C W N 69 rel.
Accused acquitted of charge under S. 395‑Whether can be charged under S. 400‑Criminal Procedure Code (V of 1898), S. 403.
Evidence which, though not believed for the purpose of conviction in a specific case under section 395 of the Pakistan Penal Code, may yet be relied upon for the purposes of a conviction under section 4C0. Once a man has been acquitted after a trial in respect of an offence, it is not open in a subsequent criminal prosecution to prove that he actually committed that offence ; but, the case is different where the prosecution is endeavouring to establish some offence with which he was not charged but a different offence. Although the acquittal of that particular accused in that dacoity case cannot be utilised to show that he participated in that dacoity, yet (the case) may well serve as an evidence of association with other members of a gang
, that in a case where an accused was charged with a specific offence previously and acquitted, it is not open for the prosecution in connection with a trial under section 400 of the Pakistan Penal Code to lead evidence to the effect that he actually participated in that occurrence or he was charged with the offence, but it is open to them to show that he was found in the company of some members of the gang in the neighbourhood of the place of occurrence sometime before or after the occurrence along with other members of the gang whose purpose was to habitually commit decoities.
S. M. S. Rahman for Appellants.
M. Fazlul Haq, Naimuddin Ahmad for the State.
.‑The appellants were tried by Mr. T. Hossain, Additional Sessions Judge, Khulna, on a charge under section 400 of the Pakistan Penal Code.
2. Police after investigation submitted charge‑sheet against 75 persons, 2 of whom were discharged by the Committing Court, one of whom died while the case was pending before that Court and absconded. 3 accused persons were granted pardon who became approvers. Therefore, 67 accused persons were committed to the Court of Sessions to answer a charge under section 400 of the Pakistan Penal Code. Of them, 43 accused persons pleaded guilty and the learned Judge accepting the said plea convicted and sentenced them to various terms of imprisonment. The appellant No. 3 Moju alias Maijuddin also pleaded guilty but his plea was not accepted and he was tried along with the other appellants and 10 other accused persons, who were acquitted after trial.
3. The trial was held with the aid of three assessors. 2 of the assessors found appellant No. 1 Nur Ali Gazi not guilty and one of there found him guilty. Appellant No. 8 Malek Sheikh was found not guilty by all the 3 assessors. Appellant No. 10 Sobhan Sardar was found not guilty by one of the assessors and guilty by 2 assessors. The rest of the appellants were found guilty unanimously by all the 3 assessors.
4. The learned Sessions Judge convicted all the 14 appellants under section 400 of the Pakistan Penal Code and sentenced appellant No. 1 Nur Ali Gazi, appellant No. 2 Nuruddin Sheikh, appellant No. 3 Maju alias Maijuddin Sheikh, appellant No. 4 Abdul Gafur Sheikh, appellant No. 5 Ansar Khan and appellant No. 6 Sadek Sheikh to transportation for life each. The appellant No. 7 Sherjan Chokidar and appellant No. 8 Abdul Malek Sheikh were sentenced to rigorous imprisonment for seven years each. 'I Ejr appellant No. 9 Mirdhan Molla, appellant No. 10 Sobhan Sardar, appellant No. 11 Gani Sheikh, appellant No. 12 Abu Bakkar Shikari and appellant No. 13 Mongla Howladar were each sentenced to rigorous imprisonment for four years. The appellant No. 14, Idrat Ali was sentenced to rigorous imprisonment for three years.
5. The above appellants preferred this appeal against their above convictions and sentences, and during pendency of this appeal, appellant No. 14 1drat Ali died. The appeal by this appellant, therefore, has abated.
6. The prosecution case is that there was a gang of dacoits of which P. W. 3 Amir Ali, one of the approvers, was the leader and P. W. 1 Ahad Ali Bayati and P. W. 2 Shamsher Ali Sheikh, the other 2 approvers, and some others were sub -leaders. This gang used to commit decoities in the Sub -Divisions of Khulna (sadar) and Bagerhat of the District of Khulna and committed 45 dacoities and one burglary between April, 1945 and June, 1953. The gang included the 3 approvers, the appellants, the persons who have been convicted on their plea of guilty and many others.
7. It is said that approvers Ahad Ali Bayati, Shamsher Ali Sheikh, Amir Ali and Afsar Fakir were class‑fellows in Chanditala M. E. School. They are residents of the village Islamabad within Rampal P. S. of Bagerhat Sub‑Division. They gave up their studies and took to gambling and for that purpose depended on stealing paddy, rice, betel‑nuts and cash money from their own houses. Afterwards, trey started burglaries 'these persons along with the appellants Nuruddin Sheikh and Nur Ali Gazi thereafter formed a lathial party, of which Amir Ali was made the leader. Tile local people in connection with their land disputes used to hire the services of these lathials. Next these persons along with Mansur, Maijuddin and Arshad formed a Gazi‑song party and in order to finance the activities of this Gazi‑song party, it was agreed 'hat they would procure money by committing dacoities. Amir Ali was the leader of the party and the other 2 approvers, namely, Ahad Ali and Shamsher and some others including Nuruddin and Nur Ali Gazi became sub‑leaders. The membership of this party swelled upto 140. The gang committed in batches of 10, 15, 20, 25 car sometimes even 35 and in the beginning used to be armed with Ditals, Sharkis, Ram Daos, torches, Shovels, axes, Mashals, catapoles and iron balls, and later the gang members collected fire arms. For the purpose of committing dacoities, the members of the gang used to hold meetings at Chanditala Bazar, Gilatala Bazar, Kaliganj Bazar, Dakra Bazar, Failar Bazar, Chakshir Bazar, Poler Hat, Chulkati Bazar, Debir Bazar, Bagerhat Hotels, Gilatala High English School: Cha nditala High School, Islamabad Madrassa compound and at the houses of tile approvers and some of the accused persons.
8. It is claimed that the 1st dacoity that was committed by this gang was at the house of one Ram Charan Pal of Baradia in the last part of Chaitra, 1351 B. S. corresponding to 8th April, 1945. All the 3 approvers took part in this dacoity. The next dacoity was committed at the house of Nayan Sardar of Kumlai in which Shamsher along with others took part. In the year 1945, four more dacoities were committed at Sholakura, Gilatala, JhanjhanIa and Joy Khan. In the year 1946, two dacoities were committed at the village of Baradia and Jigir Mollah. In 1947, four dacoities were committed at villages of Saira, Kumlai, Bagmara and Sholakura. In 1948, three dacoities were committed at the villages of Sagunia, Moukhali and Baraipara. In 1949, eleven dacoities were committed at the villages of Boyra Bazar, Betkata, Tilak, Bahirdia, Patarpara, Ranbhum, Kodla, Panehani, Kachua, Chanditala and Ranbhum. In the year 1950, fifteen dacoities and one burglary were committed at Govindapur, Badokhali, Bhojpatia, Baradia, Karapara, Bagerhat town, Khegraghat, Govindapur, Deapara, Betkata, Joypur‑Betaga, Betibunia, Makardhan, Shait‑tale and Banisanta. In the year 1951 one dacoity was committed at Khajurla; and during the pendency of the enquiry in this gang case, 2 boat dacoities were committed in the year 1953 at Bharania- Khal and Garugoja‑Khal. According to the evidence of the approvers, Ahad Ali took part in 28 dacoities and one burglary, Shamsher Sheikh took part in 26 dacoities and Amir Ali in 23 dacoities. As regards dacoities committed at Bagmara, Bahirdia, Banisanta, Bharania‑Khal and Garugoja‑Khal, it is said, none of the approvers took part in them, but they were committee by some other members of the gang.
9. At the trial, the accused persons with the exception of Moji alias Maijuddin denied the existence of the gang and denied that they were responsible for any of the dacoities alleged to have been committed by the prosecution. They also denied that they ever associated with one another or the approvers for the purpose of habitually committing dacoities. According to them, the whole story of the existence of a gang was a concoction and it was suggested on their behalf that the police by torture, coercion and inducement procured the confessions of the approvers. They also suggested that they had been falsely implicated by the approvers out of grudge and enmity. .
10. Before taking up the case of individual appellants the question that is to be considered in this case is whether there was a gang of some persons between April, 1945 and June, 1953 whose purpose was to commit dacoity habitually. In order to establish that, the prosecution has examined the approvers and a large number of witnesses and has also exhibited some documents consisting of F. I. Rs., Search lists, the confessional statements of some of the accused persons, the petitions of the approvers to the District Magistrate, Khulna, for making confessions about all dacoities and theft committed by them and orders of conviction of some specific cases of dacoities.
11. The basis of the prosecution case is the evidence of the approvers. In view of the provisions in illustration (b) of section 114 of the Evidence Act, we must presume that the approvers are unworthy of credit unless corroborated in material particulars by other reliable and independent evidence. The learned counsel in course of his argument has several times suggested that the evidence of the approvers has not been corroborated by the witnesses as their evidence is not to the same effect as of the former. It is to be remembered that corroboration in material particulars does not mean that the independent evidence by itself must be sufficient, both as to the corpus delicti and the identity of the accused, for the purpose of establishing his guilt. All that is required is that the corroborative evidence should indicate that the story given out by the approvers is substantially true. The main evidence is that of the approvers, the corroborative evidence lends support to it by showing that it is not untrue.
12. The approvers have deposed as to how the gang was formed and have said that it was formed for the purpose of committing dacoity. They have further deposed about the forty five (45) dacoities and one burglary committed by the said gang between 1945 and 1953. According to their evidence, all three did not take part in each one of the dacoities. In some all of them took part, in some one or two of them took part and in the rest none of them took part but they heard about them from the other members of the gang. Some of the witnesses have deposed that the appellants and the approvers used to move about in batches, meet at different places in batches and following such meetings dacoities took place. There are some other witnesses who have deposed about the association of some of these persons on specific occasions before or after one or other of these dacoities deposed to by the approvers. This evidence, which we have found no reason to discard, clearly corroborates the evidence of the approvers that the gang deposed to, existed during the relevant period whose purpose was to commit dacoity habitually. The fact that quite a large number of dacoities were committed in quick succession and whenever the approvers or some of the important members of the gang remained in custody or were convicted in connection with individual dacoities there was some relaxation in the commission of dacoities, lends additional support to the evidence of the approvers. No argument challenging the existence of the gang has been advanced before us. The learned counsel for the appellants, on the contrary, suggested during the course of his argument that the gang consisted of the persons who pleaded guilty and the appellants bad been falsely implicated.
13. It is said that the following dacoities and burglary were committed by the gang.
14. The learned counsel appearing for the accused‑appellants has not challenged before us that the above dacoities and burglary with the exception of those in which none of the approvers took part, were committed by the gang. In that view of the matter, we have felt it unnecessary to reproduce the evidence establishing the fact that the decoities other than those challenged before us and the burglary at Bagerhat were actually committed by the gang. The learned Additional Sessions Judge has, on a detailed discussion of the evidence come to the finding that the gang committed these dacoities.
15. We may observe at the outset that in order to establish the connection of the gang with a particular dacoity, it is not necessary for the prosecution to show the complicity of every one he members of the gang in that dacoity. After coming to the finding that there was a gang whose purpose was to habitually commit dacoities, it will be sufficient, in our view, if it is established that one or mere of the members of the gang took part in a particular dacoity in order to make the gang responsible for it. The evidence of the approvers clearly Indicates that for some reason or other it was not possible for each one of them or for all of them sometimes to take part in some dacoities. With this general proposition, in our view, we now propose to examine the evidence with regard to the particular dacoities which have been challenged before us.
16. Dacoity No. 12, it is said, was committed at the house of Bidhu Haider of Bagmara on 10‑9‑47. The evidence on record clearly establishes that the dacoity took place as alleged. There is further the evidence of P. W. 716, Krishna Kanta Dey, P. W. 719, Shafiuddin and the committing Court deposition of Narendra Kumar Dey, who have deposed that on the afternoon preceding the dacoity, they saw some persons holding consultation at the house of appellant‑Gafur, of whom they recognised Gafur, Araj Ali and Shabed Ali. There is no other evidence to prove that any one of these persons took part in this dacoity. This evidence, therefore, by itself, in our view, does not establish that these persons or any of them committed this dacoity and In view of the matter we are unable to hold that this dacoity was committed by the gang.
17. Dacoity No. 20 was committed, it is said, at house of Bhibhuti Ghosh of Bahirdia, on 4‑4‑49 and none of the approvers took part in this dacoity. The fact that a dacoity was committed at the place and on the date alleged, has been deposed to by a number of witnesses and it has not been contended before us that the dacoity did not take place as alleged. The only question that remains to be considered is whether the said dacoity was committed by this gang. There is no direct proof of the fact, but there is evidence to show that accused Rakib Dbali, who has been convicted by the learned Judge on acceptance of his plea of guilty, was convicted in connection with this dacoity. Apart from this, the prosecution has sought to establish that accused‑Abdul Gafur took part in this dacoity; but on the evidence, which we shall discuss when dealing with the case of Gafur, we are unable to find that he was connected with this dacoity. Four witnesses have been examined to establish that this gang committed the dacoity. P. W. No. 650, Golam Ali Mir states that one or two days before this dacoity, he saw Gafur and Kute, one of the accused who has been convicted on his plea of guilty, together standing in front of a shop opposite the house of Gafur. This evidence hardly establishes the fact that these persons committed the dacoity. Similarly, the evidence of P. W. 1023‑Manoranjan who saw appellant Abu Baker who has not been sought to be connected with this dacoity and Kute together in front of his house, does not establish the connection of this man with this dacoity. We have further the evidence of P. W. 851 Mujibur Rahman and P. W. 852 Ejharuddin Sheikh who deposed to the effect that on the night of this dacoity at about 9 p.m. they saw 12/13 persons going towards Bahirdia and they recognised Kute Shikari, Sultan, Mansur, Entaz and Rakib Dhali amongst them. This evidence clearly connects Rakib who was convicted in connection with this dacoity with some other members of the gang immediately before the occurrence and establishes the fact that this dacoity was committed by some members of the gang. This evidence taken together with the other evidence about association and the approver's story about bow these decoities used to be committed, clearly establishes the fact that this dacoity was committed by the gang.
18. Dacoity No. 43 was, committed at the house of Abinash Gain of Banisanta. A large number of witnesses, whose evidence remains unchallenged, proved the dacoity. In connection with this dacoity, appellant Sherjan, Arjan and Ande Ali, who have been convicted accepting their pleas of guilty, were convicted under section 412 of Pakistan Penal Code. Sherjan and Arjan were also convicted under section 19‑A of the Arms Act. P. W. 133 S. 1. Harej Ali arrested Sherjan, Argan, Ande Ali, Hasan Ali Sheikh, Joynal and Azhar Sheikh at Chakshi Bazar and recovered from their possession 2 guns and other properties, which were identified to be properties looted during the course of this dacoity. It clearly establishes the fact that this dacoity was also committed by some members of the gang and is, therefore, attributable to the gang.
19. The last 2 dacoities in which the approvers did not take part are boat dacoities committed on the same night at Bharania Khal Garu‑Goja‑Khal. In connection with these dacoities accused Shaheb Ali who has been convicted by the learned Additional Sessions Judge accepting his plea of guilty, was convicted. The judgment in connection with the cases relating to these dacoities do not appear to Gave been exhibited. The witnesses on which the prosecution has relied to connect this gang with these dacoities are P. Ws. 373‑376. P. W. 373 Abdul Bari Mirza and P. W. 373 Ansar Mirza speak of having seen Sheb Ali, appellant Mazu, convicted accused Chhoto Panchu and Akkas Fakir in a boat on the afternoon preceding the night of the dacoities and thereafter on the morning following. These witnesses were examined in connection with dacoity cases. It is evident that their evidence as against Mazu, Chhoto Panchu and Akkas was not accepted. P. W. 375 Sahabuddin Sheikh and P. W. 376 Abdul Khateque Sheikh speak of having seen the above persons and others at the house of Shaheb Ali on the afternoon preceding the night of dacoity. These witnesses were also examined in the dacoity cases. In view of this, we cannot hold that the connection of the gang with these dacoities has been established.
20. Out of the dacoities committed by this gang, murders were committed in dacoity Nos. 27 Ranbbum II and 29 Badokbali and rape was committed in dacoity No. 35 Govindapur II. The, learned Judge has come to this conclusion on evidence and we find no reason to differ from trim.
21. Before we take up the cases of individual accused persons, we propose to dispose of one point, which is of general importance in this case. The question that arises is whether inspite of the acquittal of an accused in connection with a specific charge under section 395 or some such allied section it is open for the prosecution to lead evidence to the effect that he was connected with the occurrence concerned and by some supporting evidence which corroborates the approvers' evidence.
22. Mr. Fazlul Huq, relies on the decision in the case of Bachchu v. Emperor (A I R 1930 Oudh 455), which is a decision of a Division Bench of the Oudh Chief Court, in support of his contention that it can be done. In this case, it has been held that even if an accused has been acquitted of a charge of dacoity, it is open to the prosecution to prove that on the day before the dacoity he was seen in the neighbourhood of the dacoity. This is the view which has been taken also by our learned brothers Rahman and Murshed JJ., relying on this case in an earlier gang case (Bhulu Das and 40 others v. The State), where it has been observed as follows:
"But we are of the opinion that evidence which, though not believed for the purpose of conviction in a specific case under section 395 of the Pakistan Penal Code, may yet be relied upon for the purposes of a conviction under this section. It is true that once a man has been acquitted after a trial in respect of an offence, it is not open in a subsequent criminal prosecution to prove that he actually committed that offence; but, the case is different where the prosecution is endeavouring to establish some offence with which he was not charged but a different offence. Although the acquittal of that particular accused in that dacoity case cannot be utilised to show that he participated 9n that dacoity, yet may well serve as an evidence of association with other members of a gang."
In the case reported in A I R 1930 Oudh 455, reference has been made to an earlier decision decided by one of the Judges constitut ing this Division Bench. That case is Lale and another v. Emperor (A I R 1929 Oudh. 321). The learned Judge in this case seems to have taken a different view from the one taken in a decision of the Oudh Court to which he himself was a party. According to the learned Judge, the evidence of participation can he admitted in a case under section 400 of the Penal Code where the prosecution is not endeavouring to establish an offence with which the accused was charged in the previous case. His view is that the evidence can be admitted under section 14 of the Evidence Act. In the case of Khilawan and others v. Emperor (A I R 1928 Oudh 430), Stwert, C. J. and Raja, J. held that evidence showing previous conviction of accused persons in a trial under section 400 of the Penal Code was admissible under section 14 of the Evidence Act not as evidence of character but as evidence to prove habit and association and section 54 was no bar to the said admission. It was also held that in such a case if it was found that a man had been acquitted fn connection with a particular dacoity, it was not open in a subsequent criminal prosecution to prove that he actually committed that offence. It was, however, open for the prosecution to prove that the accused concerned was seen in the neighbourhood of the dacoity sometime before the commission of the same. On a careful consideration of these decisions, we agree with the view taken in Khilawan and others v. Emperor, and hold that in a case where an accused was charged with a specific offence previously and acquitted, it is not open for the prosecution in connection with a trial under section 400 of the Pakistan Penal Code to lead evidence to the effect that he actually participated in that occurrence or he was charged with the offence, but it is open to them to stow that he was found in the company of some members of the gang in the neighbourhood of the place of occurrence sometime before or after the occurrence along with other members of the gang whose purpose was to habitually commit dacoities.
23. Another question, "which, we think, should be disposed of as a general question of importance in order to avoid repetition is whether it is safe for us to maintain a conviction of an accused whose participation in any of the dacoities concerned has not been established though his association with some members of the gang has been deposed to by some witnesses. It has been held in Kader Sundar and others v. The Emperor (16 C W N 69), that the essence o an offence under section 400 of the penal Code is that it must be shown that there was a gang of which the accused persons were members and the purpose of the gang was to habitually commit dacoities. Section 400 of the Pakistan Penal Code lays down that whoever belongs to such a gang he is guilty of an offence under that section. It is evident; therefore, that in order to establish the guilt of an accused under this section, it is no incumbent upon the prosecution to show that a particular accused, belongs to such a gang, did actually take part in any one or more of the dacoities concerned. The participation of an accused in any dacoity is evidence showing (sic) establishing his object for such connection as held in 16 C W N1 69, mentioned above. In the present case, the evidence of general association as against all the appellants is of a set type, namely, that the appellants, the other convicted accused person, the approvers and others were seen moving about in groups and met at places, such as, Bazars, Hats, road sides and at the houses of some of the accused persons, some times before and sometimes after some particular dacoities. There is no evidence to show that the accused persons had any particular rendezvous where they used to meet. In such a state of things, we do not feel safe to uphold a conviction of any accused whose participation in none of the dacoities has been established. The association in order to be penal must not be of a casual nature and must be for the purpose of committing dacoities habitually.
Such association must be shown to have been spread over a sufficiently long period of time, in order to establish that the person concerned had identified himself with a group of persons whose common purpose was the habitual commission of dacoity. ,
24. Now, we propose to take up the case of each one of the appellants seriatim.
The approvers state that this appellant joined them when they formed the lathial party and continued in sharing their activities in connection with the Gazi‑song party as well as commission of dacoities. According to their evidence, this appellant committed 8 (eight) dacoities out of the dacoities and burglary in question. This appellant has been implicated in connection with the following dacoities, which it is alleged, were committed by the gang
All the three approvers, it is said, took part in this dacoity. This dacoity was committed on 8‑4-45 at the house of Ram Charan Pal. According to the evidence of P. W. 1 Ahad Ali, before commission of this dacoity he along with Amir Ali, Shamsher, Afsar Fakir, Nuruddin and Nur Gazi held a meeting in connection with this dacoity at Chanditala Hat. This evidence of the approver finds corroboration in the evidence of P. W. 568 Ananta Kumar Nath and 1065 Abinash Chandra Paul. As against the former, the only suggestion was that he had some trouble with the appellant in connection with the removal of a but of a school, which however he denied. P. W. 1662 Abinash Chandra Paul, though otherwise deposing in favour of this appellant, fully corroborates the approver about the meeting at Chanditala Hat. We are, therefore, of the view that the participation of this appellant in the 1st dacoity committed by the gang at Baradia has been established.
This dacoity was committed by some members of the gang including P. W. 2 Shamsher Sheikh. The prosecution examined P. W. 546 Dayamoy, and P. W. 550 Akhoy Debnath to corrobo rate the evidence of the approver Shamsher with regard to the participation of this appellant in this dacoity. Both these two witnesses could not identify the appellant in the committing Court and therefore it cannot be said that when they speak of having seen this appellant along with some others of the gang at the house of Musa Khan on the afternoon previous to this dacoity, their evidence can be acted upon. We, therefore, hold that the connection of this appellant with this dacoity has not been established.
P. W. 2 Shamsher Sheikh claims to have taken part in this dacoity. P. W. 571‑Khorshed Ali Kazi who speaks of a meeting near Talbunia Hat at 4 or 4‑30 P. M. 3 or 4 days before this dacoity was committed, corroborates the evidence of the approver. The suggestion against this witness is that he was deposing falsely against this appellant at the instance of Mafiz and Hamza, enemies of the appellant. There does not appear to be any reason for disbelieving this witness and., we are of the view that the participation of this appellant in this dacoity has been established.
According to the evidence of the approvers all the three took part in this dacoity. P. W. 739 Aminuddin Sheikh speaks of a meeting at the house of this appellant at about dusk preceding the night of this dacoity. The evidence of P. W. 740 in the committing Court, which was put in under section 288 of the Code of Criminal Procedure also is to the same effect and this witness corroborates the approvers. According to the approvers, Nur Ali Ghazi was injured in this dacoity and was treated by P. W. 21 Khitish Doctor. P. W. 1 Ahad Ali states that Nur Ali Gazi received a bleeding injury on his hand; whereas P. W. 21‑Khitish Chandra Nath, the doctor, who, it is said treated Nur All Gazi, speaks of a cut injury on the leg of a person who was produced by Ahad Ali and another to him. He could not say if Nur Ali Gazi was the injured person. In that view of the evidence, though the learned Judge has relied upon this injury on Nur Ali Gazi for the purpose of corroboration of the approvers' evidence, we are unable to do so. We are, however, of the view that the evidence of P. W. 739 corroborates the approvers and the connection of this appellant with this dacoity has been established.
This dacoity was committed on 11.4.49 at the house of Jatindra Pal. P. W. 2 Shamsher claims to have taken part in this dacoity and has implicated the appellant. The only witness examined in corroboration of this evidence is P. W. 742 Menajud din Howladar. This witness did not name the appellant in the Sessions Court and though he named Nur Gazi in the committing Court, did not identify him. We, therefore, hold that the contention of this appellant with this dacoity has been established.
.
All the three approvers claim to have taken part in this dacoity and implicate the appellant; but there is no evidence which corroborates the evidence of the approvers that the appellant took part in this dacoity. Hence, we find that the complicity of this appellant in this dacoity has been established
It has been established by evidence in this case that during the commission of this dacoity, rape was committed on P. W. 670 Husna Banu Begum. She was then a newly married bride. P. W. 649 Arshad Ali Sheikh, though speaks of a meeting at the house of Ahad Ali some 2 or 3 days before the date of occurrence could not identify Nur Ali Gazi. There is no other evidence to connect this appellant with this dacoity. In that view of the matter we hold that there being no corroboration of the approved evidence in regard to the participation of this appellant in this dacoity, it must be held that it has not been established that he took part in this dacoity.
.
P. W. 1 Ahad Ali took part in this dacoity. It was committed at the house of Abdul Bepary on 23/24‑10‑50. The approver does not implicate the appellant 9n his evidence before the Sessions Court in this dacoity. Therefore, we are unable to hold that he took part in the same,
25. There are a large number of witnesses who have deposed to the effect that this appellant used to associate with the approvers and used to hold meetings at different places with some members of the gang on different occasions. Some of these witnesses could not identify him either on the Sessions Court in one in the committing Court, some others who identified him in one Court could not identify in another. Even excluding the evidence of these witnesses, we have quite a large number of witnesses who have proved the association of this appellant with the gang. Some 9f the prosecution witnesses in their cross‑examination state shat they did not see this appellant associating with bad men and he is a man of means and used to take part in suppressing thefts and other misdeeds in the village. Taking into consideration the evidence of these witnesses, we cannot bold that their evidence controverts the evidence of those witnesses who have deposed about the association of this appellant with the gang. On a careful consideration of the evidence we are of the view that the evidence of the approvers that the appellant was one of the first members of the gang and that he took part in the three dacoities Nos. 1, 3 and 7 mentioned above has been established by reliable evidence:
26. It has been suggested en behalf of this appellant that his pecuniary condition is good and he was one of the Matbars of his village. He, it is claimed, had a grocery shop and used to take to task thieves and dacoits. It is also his defence that P. W. 1 Ahad Ali deposed against him out of enmity because he had deposed against Ahad All in connection with an abduction case. As against the other 2 approvers, his case is that they had stolen a boat and ever that matter the appellant had some trouble with them. Moreover, there was some litigation with the uncle of his father and the brother‑in‑law of Amir Ali and that is why he had been falsely implicated. So far as the enmity with Ahad Ali is concerned, it appears that P. W. 747 Mozahar Gazi in his cross -examination has stated that Ahad Ali along with some others abducted the daughter of Soleman and in that case Nur Ali Gazi deposed against them. This was about 9 or 10 years before October, 1959. No other evidence has been produced in support of this allegation. He is one of the witnesses who has also deposed to the effect that the pecuniary condition of this appellant is good and that he had a shop and further that he used to chastise thieves. He is a neighbour of the appellant. It is very difficult to place implicit reliance on this witness for the purpose of holding that there was really enmity between the appellant and P. W. 1 Ahad Ali and even if we believe that evidence, it does not follow that the evidence of Ahad All implicating this appellant with some of the dacoities if supported by other reliable evidence should be discarded on this account. So far as the enmity with approver Amir Ali is concerned, this has been spoken of by this witness also who has said that the uncle of father of Nur Ali Gazi had litigation with the brother‑in‑law of Amir Ali. It does not follow from this that Amir All had any enmity with Nur Ali Gazi. As regards the enmity over the theft of a boat, we do not find any positive evidence on this account.
27. There is, therefore, no substance in his defence and he has been rightly found guilty under section 400 of the Pakistan Penal Code.
28. In the result, we affirm the conviction of appellants Nur Ali Gazi, Nooruddin Sheikh, Moju alias Maijuddin Sheikh, Ansar Khan, Sadek Sheikh, Ranga Shikari and Abu Bakar Shikari, with regard to the sentence imposed on them, we do not see any reason to interfere in the cases of others excepting that of Nur Ali Gazi, whose sentence, in view of the facts and circumstances of the case, we reduce from transportation to 10 years rigorous imprisonment.
29. We allow the appeals of Gafur Sheikh, Sherjan Ali Chokidar, Abdul Malek Sheikh, Mirdhan Molla, Sobhan Molla, Sobhan Sardar and Mongla Howladar and set aside their convictions and sentences and acquit them of the charge under section 400 of the Pakistan Penal Code and we direct that these appellants be released at once if not wanted in any other connection.
‑I had the occasion to go through the judgment just now delivered by my learned brother. We held discussion before the judgment was prepared to be delivered in the Court and I entirely agree with the judgment and the order passed by my learned brother in this appeal.
S. B.
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