1. Z. A. CHANNA, J.---This appeal, under section 7 of the Suppression of Terrorist Activities (Special Courts) Act, 1975, is directed against a judgment delivered on 6-6-1975 by, the learned Special Court constituted under the said Act, whereby the learned Special Court convicted all the five appellants under section 395, P. P. C. And awarded each of them for the said offence rigorous imprisonment for seven years and also imposed on each of them fine of Rs. 1,000, in default of which they were to suffer further rigorous imprisonment for eighteen months. The learned Special Court, by the same judgment, also convicted appellants Shamoon and Ghulam Hussain under section 397, P. P, C. And awarded them for the said offence rigorous imprisonment of ten years, with the direction that the sentence awarded to them for this offence was to run concurrently with the substantive sentence awarded to them for the offence under section 395, P. P. C.
2. The facts of the case, briefly stated, are that on the night intervening between the 14th and 15th of April 1975, a dacoity was committed at the Moen-Jo-Daro Railway Station. It is alleged that on that night, at about 2-45 a.m. Five dacoits came to the aforesaid station and attempted to obtain the keys of the safe containing Government receipts from the sale of tickets, etc. But the attempt proved abortive, as the Assistant Station Master in charge was able to dupe them into believing that the keys of the safe were neither with him nor at the railway station but were with the Station Master who was then in his quarter. In that transaction, four persons, namely Assistant Station Master Muhammad Irshad, railway pointsman Roshan Din, railway sweeper Wali Muhammad, and a passenger, by name Jan Muhammad, who was sleeping in the Waiting Hall of the railway station, sustained injuries. Furthermore, both Muhammad Irshad and Muhammad Din were robbed of their watches by the dacoits, while a sum of Rs. 40 was taken by them from passenger Jan Muhammad and another sum of Rs. 20 was taken from another passenger, by name Allah Bux.
3. Immediately after the dacoits left, the matter was brought to the notice of the Station Master, Muhammad Ishaque, who forthwith sent a message about the dacoity to the railway police at Larkana, the Station House Officer at Dokri, Superintendent of Police, Larkana and the Railway authorities.
4. The first Police Officers to reach Moen-Jo-Daro Railway Station on receipt of the intimation of the dacoity were Police Inspector Mahboob Ali and S. H. O. Dilbaryar Khan of Dokri Police Station. They were accompanied by tracker Shafi Muhammad. Assistant Station Master Muhammad Irshad pointed out to the Police the footprints of the dacoits in the Katcha ground across the railway lines.
5. The police party, with the assistance of the tracker, tracked the footprints to village Haji Iqbal Kharo, which is at a distance of about 2 to 21 miles from Moen-Jo-Daro Railway Station. The houses of Kharos in the village were found empty. The Police party accordingly raided these houses on 16-4- 1975 at 3-30 p.m. And secured 16 persons from there. All these 16 persons were brought by P. I.
6. Mahboob Ali to Dokri Police Station where he interrogated them. On the same day, at his request, a footprint test was held, by Head Munshi and I1Ird Class Magistrate, Mr. Shamsuddin, in which footprints of appellants, Shamoon, Ahmed, Dhani Bux and Mitho were picked out by tracker Shafr Muhammad, out of footprints of 16 persons. Thereafter, an identification test was also held by the learned Magistrate in which P. W. Muhammad Irshad, Roshan Din and Wali Muhammad picked out these 4 appellants out of a line of 16 persons. In the meanwhile, S. H. O. Railway Police, Abdul Karim, arrived at the scene of offence and took over the investigation of the case. He recorded the statements of Muhammad Ishaque, Muhammad Irshad, Roshan Din, Wali Muhammad, Allah Bux, Jan Muhammad and Qurban Ali. Muhammad Irshad, who had injuries on his person, was sent to the Medical Officer for examination and treatment. The S. H. O. Also interrogated the 4 appellants, Shamoon, Haji, Mitho and Dhani Bux, who had been picked out in the footprint test and the identification test. These appellants led the S. H. O. And the mashirs to Iqbal Kharo village and in that village, appellant Shamoon produced from his house a country--made pistol, two cartridges of '12 bore aad a Favre-Luba watch, which articles were buried in the ground. Similarly, appellant Mitho produced a hatchet from a corn-bin in his house, while appellants Dhani Bux and Haji each produced a Lathi from their respective houses.
7. On the same day, namely, 16-4-1975, S. H. O. Dilbaryar Khan, under instructions from P. I. Mahboob Ali, arrested appellant Ghulam Hussain from Iqbal Kharo village and this appellant produced before the S. H. O. a watch which was kept in a locked box in the house of the appellant and which box was opened by this appellant, with a key which he produced. A footprint test and an identification test in respect of this appellant was also held by Magistrate Shamsuddin, and in the footprint test tracker Shafi Muhammad picked out the footprints of this appellant out of footprints of 7 persons and in the identification test, P. Ws. Muhammad Irshad, Roshan Din and Wali Muhammad were able to pick out and identify this appellant from a line of 7 persons. The two watches secured respectively from appellants Shamoon and Ghulam Hussain were identified before Magistrate Shamsuddin by P. Ws. Muhammad Irshad and Roshan Din as the watches of which they had been robbed by the dacoits. Upon completion of the investigations, the appellants were challaned before the Special Court.
8. Appellant Shamoon, in his statement in Court, while denying the prosecution allegations, stated as follows :- "I have been implicated at the instance of Inspector Mahboob Ali. He had asked me and co- accused Haji, Mitho and Dhani Bux to settle our disputes with accused Ghulam Hussain. We refused. I, Mitho, Haji and Dhani Bux are men of Abdul Hameed Jatoi, M. N. A. Co. Accused Ghulam Hussain is not his man. We are being harassed for that reason. I have no enmity against the Railway Employees or the foot tracker. They implicated as at the instance of Mahboob Ali."
9. Alongwith his statement this appellant produced a copy of an information laid against him and co-appellant Dhani Bux under section 107, Cr. P. C. By S. H. O. Aiyat Ahmad of Dokri Police Station on 23-10-1974. Co--appellants Haji, Mitho and Dhani Bux, who are partner cousins of appellant Shamoon, have adopted the latter's defence and have denied any complicity in or knowledge of the dacoity at Moen-Jo-Daro Railway Station. No evidence in defence was led by anyone of these appellants.
10. Appellant Ghulam Hussain, in his statement to Court, alleged enmity With the other four appellants, charged Inspector Mahboob Ali and Ghulam Mustafa Jatoi of concocting a false case against him and further stated as follows :- "Ghulam Mustafa and Inspector Mahboob Ali have conspired to implicate me in this case. We are constantly harassed and involved in one case after the other. My only fault is that I am opposing Abdul Hamid Jatoi, M. N. A. Abdul Hamid is my enemy as he has got a woman of my family abducted. I had gone to him with "my father-in-law and implored him to return the woman. We had taken Quran to him but he said that if we ever try to get back that woman he would not only get me and my father-in-law implicated in false cases but have us murdered. Miral is my grandfather. Even he was threatened. My grandfather Miral was murdered by the brothers of co- accused Shamoon. That case of murder is pending in a Hyderabad Court. Imam Bux and Bakshal, the brothers of co-accused Shamoon, are being tried for that murder. I produce certified copies of judicial proceedings in various Courts to show that the co-accused bear enmity to me. The documents are marked as Exh. 21 /A as a bunch."
11. This appellant too did not examine any witness in defence, but produced (1) an order under section 112, Cr. P. C. Made by the Civil Judge and Additional City Magistrate, Hyderabad, on 8-12-1972, against appellant Shamoon, Abdul Hamid Jatoi and 2 others on the basis of a report made to the Police by one Lai son of Raban (said to be the father-in-law of appellant Ghulam Hussain); (2) an order under section 113, Cr. P. C. Made by the said learned Magistrate in the above case; (3) copies of diary sheets for 2-5-1975 in Case No. 2 of 1974 under section 107, and case No. 15 of 1974 under section 363/364/366, P. P. C. In the Court of the learned Extra Joint Civil Judge and F. C. M--- Hyderabad, showing that Abdul Hamid was an accused in the latter case; (4) deposition of Lai son of Raban in the case under section 363/364/366, wherein he has stated that Ghulam Hussain is his son-in-law; (5) copies of the F. I. R. And Challan in the above case; (6) copies of the F. I. R. And Challan in the case under section 302/1208/109/364, P. P. C. Filed by Lai in respect of the disappearance and alleged murder of his uncle, Haji Miral, in which Abdul Hamid Jatoi was shown as an accused ; (7) the deposition of L al in the above case; and (8) copy of the diary of the VI Extra Joint Civil Judge and F. C. M. In that case for 2-5-1975.
12. The learned Special Court has based the conviction of the five appellants on the following pieces of evidence upon which he placed strong reliance:-
(a) Ocular testimony of Muhammad Irshad, Roshan Din and Wali Muhammad, who were able to pick out all the five appellants in an identification test held by Magistrate Shamsuddin.
(b) Identification of footprints of the appellants by tracker Shafi Muhammad.
(c) Recovery of stolen watches and weapons from the appellants.
13. The learned Special Court, in its exhaustive judgment, has carefully examined the defence pleas and the material produced by the appellants in support thereof that there was enmity between appellant Ghulam Hussain and the other appellants and hence it is not reasonably possible to believe that they would conjointly commit a dacoity or any other crime and that the case against the appellants is the result of the ire of Inspector Mahboob Ali because of their refusal to patch up that difference in spite of his pressing them to do so, and reached the conclusion, with which we are in entire agreement, that both the pleas are without merit. The first plea was repelled after careful analysis of the documents produced by appellants Shamoon and Ghulam Hussain with their statements We may add that even if there was some previous enmity between appellant Ghulam Hussain and the other appellants this does not mean that they could not collaborate in a joint venture since they are co-villagers and belong to the same caste. The second plea was rejected as it was strongly denied by Inspector Mahboob Ali and, except the bare word of the appellants, there was no evidence in support thereof.
14. We have heard Mr. Muhammad Hayat Junejo, the learned counsel for the appellants, and Mr. Usman Ghani Rashid, the learned Assistant Advocate-General, who have taken us through the entire evidence in the case.
15. The main evidence against the appellants is that of P. Ws. Muhammad Irshad, Roshan Din and Wali Muhammad. All three of them, as already stated, are railway employees. P. Ws. Roshan Din and Wali Muhammad have testified that after the departure of Bolan Mail, they were talking to each other in the verandah of Men-Jo-Daro railway station, when five persons turned tip, of whom one was armed with a gun, another carried a pistol, the third had a hatchet and the remaining two were armed with lathis. The two witnesses have further stated that these five persons gave them kicks and fist blows and asked them to keep quiet; that one of them removed the wrist-watch of Roshan Din; that on the commotion Assistant Station Master Muhammad Irshad came into the verandah from his room; that the dacoits attacked him also and gave him lathi blows, slaps and kicks, that thereafter the dacoits dragged the two of them as well as Muhammad Irshad into the station office where the latter was again beaten and also he was robbed of his wrist-watch; that the dacoits demanded the keys of the Government safe from Muhammad Irshad who put them off by telling them that the keys wore with the Station Master and that ultimately Muhammad Irshad took out from a drawer of a table a book, told the dacoits that it was the Holy Quran and implored the dacoits to forgive them in its holy name, whereupon the dacoits left them and went away towards the western side on which side the Rice Canal flows. P. Ws. Roshan Din and Wali Muhammad are fully supported by Muhammad Irshad, who immediately after the departure of the dacoits reported the Station Master Muhammad Ishaq and the latter forthwith sent messages about the crime to the local police, the railway police and the railway authorities. All the three eye- witnesses have stated that they had clearly seen the dacoits by the light of the electric tube lights which were fitted in the Station office. They were put to two identification tests by Magistrate Shamsuddin, the first on the day following the incident and the second on the day after, in which each of them identified all the five appellants.
16. The presence of the three eye-witnesses at the railway station at the time of the incident cannot be disputed in view of the fact that they were there on duty. Additionally, P. W. Muhammad Irshad was found to have a number of injuries on his person which were caused to him by the dacoits. He was examined on 15-4-1975 by Medical Officer Mohammad Ibrahim, who found the following injuries on his person, which according to him were caused by lathi and fist blows: "(1) One lacerated wound ----- x ----- x ----- on right parietal region of the head.
(2) 3 abrasions each measuring 2" x 1/10" on right forearm.
(3) One abrasion at left elbow joint region 1" x 1/10".
(4) Haemotoma in an area of 4" diameter on left upper arm. Such injury did not appear to have damaged any bone.
(5) Swelling of both eye-lids.
(6) Swelling of the nose with bleeding from the nose."
17. Evidence in respect of the dacoity was also given by P. W. Jan Muhammad, a passenger, who was robbed of Rs. 40, but he candidly stated that as the light in the waiting room, where he was robbed, was very dim, hence he was not able to identify the dacoits. He, however, stated that he had clearly seen the pistol which one of the dacoits was carrying, that it was of a nature from which ordinary cartridges used in a gun can be fired and that the pistol shown to him in Court (which was recovered by police from the possession of appellant Shamoon) was the same.
18. Mr. M. Hayat Junejo, in view of the overwhelming evidence on the point, did not dispute the factum of dacoity. He, however, submitted that the evidence as to the identity of the dacoits was not reliable and the reasonable possibility of the 3 eye-witnesses being mistaken on this point cannot be excluded, as admittedly the culprits were not previously known to the P. Ws. And neither in the F.
19. I. R. Nor in the police statements the witnesses have given any description of the dacoits. He contended that in the circumstances the identification tests cannot inspire con--fidence. He further assailed the identification tests on the ground that the tests were held in the office of Magistrate Shamsuddin which is admittedly in the same courtyard as the Police Station where the accused were kept before the tests and as admitted by the Magistrate a person has to pass by the police station in order to come to his office. The submission of the learned counsel was that the witnesses must have seen the appellants at the police station on their way to the office of Magistrate Shamsuddin when they were called for the tests. This suggestion, which was put to the eye-- witnesses in their cross-examination, was strangely denied by them. Further-- more, there is no evidence that they even knew that the appellants were kept at the police station. In any case, the witnesses had no motive for falsely implicating innocent persons merely because those persons were arrested by the Police. No complicity is shown to exist or even alleged between them and the Police.
20. In support of his contention that identification at night time of unknown dacoits by the victims of dacoity, who are invariably too terrified to observe the features of the dacoits with any degree of certainty, is unreliable, the learned counsel for the appellants placed reliance upon the decisions in Emperor v. Irjan and others (AIR 1927 Cal. 820), Ramzan and others v. Emperor (AIR 1929 Sind 149), Channan Singh v. Emperor (AIR 1933 Lah. 299), Dil Muhammad v. Crown (PLD 1956 FC 402), Fateh Sher v. Crown (PLD 1956 Lah. 157) and Ahmad Zaman v. Crown (PLD 1956 Pesh. 50). In all these cases, however, the identification was either by moon light or the flickering and uncertain light of a hurricane lantern. In the instant case, the identification was in the strong glare of electric tube lights. Furthermore, not only bad the witnesses seen the dacoits from very close quarters but had seen them for sufficiently long time. They thus had ample opportunity of a close and careful look at the dacoits and marking their features. In the circumstances, we consider the possibility of three intelligent persons being mistaken as to the identity of the dacoits can be safely excluded.
21. On the point of mistaken identity, even when the identification is by a number of persons or there have been a number of opportunities of seeing the culprit, the learned counsel for the appellants relied upon certain passages at pages 106 to 131 in "The Proof of Guilt" (Third Edition) by Glanvile Williams, specially the learned author's discussion in regard to the lamentable failure of justice in the three trials of Adolf Beck. This, however, was a very exceptional case where several women were mistaken as to the identity of the person who had defrauded them. Merely because of a few erroneous decisions based on mistaken identity, it cannot be laid down as a rule that identification evidence is of little value, even where the identification is in favourable conditions and by a number of persons.
22. The possibility of mistaken identity by the three eye-witnesses is minimised by the recovery of stolen property and weapons from the appellants. S. H. O. Abdul Karim of the railway police has testified that appellant Shamoon had taken him and the mashirs to his house, had dug up the ground at a distance of 20 or 25 paces from the house and unearthed a country-made pistol, for which the appellant had no licence and a Favre-Leuba watch. The S. H. O. Has further deposed that appellant Mitho had produced from his house a hatchet while appellants Dhani Bux and Haji had each produced from their respective houses one lathi. So far as appellant Ghulam Hussain is concerned, S. H. O. Dilbaryar Khan of Dokri Police has stated that this appellant had produced before him and Mashirs a Favre-Leuba watch, which he had taken out from a box lying on the cot of his house, and also a licensed gun and bandolier. The two police officers are supported in respect of the recoveries by Stamp Vendor Nazar Muhammad, who was one of the Mashirs of recoveries. We have carefully examined the evidence of the two police officers and Mashir Nazar Muhammad and seen no reason to doubt their testimony.
23. The learned counsel for the appellants has assailed the evidence of recoveries on the grounds, firstly, that recovery of weapons allegedly made from the appellants does not fit in with the evidence of P. W. Muhammad Irshad in regard to the weapons carried by them, secondly, that the watches allegedly recovered from appellants Shamoon and Ghulam Hussain are of common type and there is no reliable evidence that they belonged to P. Ws. Muhammad Irshad and Roshan Din, and finally, that Mashir Nazar Muhammad is not a trustworthy mashir as he is a stock police witness and a previous convict, having been convicted in an anti-corruption case and dismissed from the service of Dokri Municipality. We have carefully considered all these contentions but find no substance in them. No doubt, according to the evidence of P. W. Muhammad Irshad, who is the only witness who has stated what weopon was carried by each appellant at the time of the dacoity, appellant Shamoon had a gun, Dhani Bux had a hatchet, Ghulam Hussain had a pistol while the remaining two appellants had lathis, while according to the police officers and Mashir Nazar Muhammad, the pistol was secured from appellant Shamoon, the gun from Mitho and Lathis from the remaining two appellants, but we consider that this discrepancy is of no material importance as it appears to us that P. W. Muhammad Irshad had mistakenly pointed out the appellants who according to him were carrying the different weapons. Such mistake, in the circumstances in which Muhammad Irshad was placed at the time of the dacoity, is to be considered natural and does not detract from the evidence of identification.
24. As regards the two watches which were recovered from appellants Shamoon and Ghulam Hussain respectively, not only were they of Favre --Leuba make, which are not very common at least in the country-side, but further they were owned by Muhammad Irshad and Roshan Din for quite some time before they were deprived of them by the dacoits. There is thus no reason to disbelieve their claim that the watches recovered from appellants Shamoon and Ghulam Hussain are the same of which they were deprived by the dacoits. Both the witnesses were put to tests in respect of the two watches in which they were correctly able to pick out their respective watches from a number of other watches. Moreover, the watches have not been claimed by the appellants.
25. We are also not very much impressed with the criticism levelled against the testimony of Mashir Nazar Muhammad. He has frankly admitted that he has been acting as a police mashir for the past ten years and that he had been convicted in an Anti-Corruption case. The conviction, however, was 15 years prior to the instant case. In the meanwhile the witness had rehabilitated himself and was leading a respectable life as a Stamp Vendor.
26. In addition to the above pieces of evidence there is also evidence of tracker Shafi Muhammad who has deposed that the footprints of the dacoits which had been shown to him by the eye-witnesses at the scene of offence matched with the footprints of the persons which he had picked out in the two footprint tests held by Magistrate Shamsuddin. Though footprint evidence is a very weak type of evidence, in the instant case it does lend measure of assurance to the evidence of identification and recoveries.
27. We have carefully considered the entire evidence in the case and arc fully satisfied that the appellants are the persons who committed the dacoity. It, however, remains to be considered whether the appellants could b convicted and sentenced both under sections 395 and 397, P. P. C.
28. As h been done by the learned Special Court. It was submitted by the learned counsel for the appellants that section 397, P. P. C. Does not create an distinct or separate offence but merely prescribes the minimum punishment for certain types of dacoity and robbery. In support of his contention, the learned counsel relied upon the decision of their Lordships of the Supreme Court in Muhammad Ismail v. State (1971 SCMR 763). In that case it was held "that section 397 of the Pakistan Penal Code is not an offence by itself" and on this view of the matter it upheld the conviction of the accused under section 397, p. p. C. By the High Court though the trial Court had convicted them only under section 395, P. P. C.
29. We would accordingly maintain the conviction and sentence of appellants Haji, Mitho and Dhani Bux under section 395, P. P. C. So far as appellants Shamoon and Ghulam Hussain are concerned, we would substitute for the separate sentences awarded to them both under sections 395 and 397, P. P. C., a sentence of 10 years each under section 395 read with section 397, P. P. C and would also maintain their sentence of fine of Rs. 1,000 in default o payment of which they would undergo R. I.
30. For 18 months. Subject to the modification, the appeal of the appellants stands dismissed.