ASLAM RIAZ HUSSAIN , J.-This appeal by Allah Ditta, Sanatta and Manzoor, is directed against the judgment of the Lahore High Court, dated 18-12-1975, whereby it dismissed- their appeal and maintained their conviction, inter alia, under section 396,P. P. C. For dacoity and murder.
2. The facts leading to the appeal briefly are ; that on the night between 15-16/4/1972, Allah Ditta complainant (P. W. 17) was sleeping in front of his house in Abadi Gilwana in Chak No. 221-R. B., District Lyallpur (now Faisalabad): The house of his brother Najabat (P. W. 16) is situated adjacent to his house on the eastern side and the house of his cousin Khan (deceased) is situated on the western side. At about midnight Najabat P. W. Was awakened by the- barking of dogs. He noticed alight in the house of Allah Ditta, complainant. He got suspicious. He, therefore, went and woke up Allah Ditta and Khan (deceased) and told them about the light inside former's kotha. They tried to quietly open the door but found that it was bolted from inside. They peeped through a hole in the door and saw two persons inside the room. All three of them then went towards the back side of the kotha. In the meanwhile other persons had also gathered. They saw a person armed with a gun, standing guard near the place where the dacoits had made a-hole in the wall of the kotha.
On seeing them he shouted to his companions inside the room to come out, whereupon two persons came out of the aforementioned hole each of them was carrying a bundle. All three of them then ran away towards the fields where two other persons joined them. Allah Ditta complainant, Khan (deceased) and Najabat P. Ws. Gave them a chase. Khan .(deceased), who was carrying a lathi, caught up with them and gave a lathi blow to one of them, whereupon one of the decoits shouted to his companion who was carrying a gun to shoot. That person thereupon then fired two shots in quick succession hitting Khan deceased who fell down and died at the spot.
The culprits made good their escape. Najabat and Allah Ditta, P. Ws. Gave up chase and started attending to Khan but he had already died. Allah Ditta complainant then returned to his house and found that the things in the kwha were scattered and a number of clothes had been stolen. He learnt that the Police was present in a nearby chak, He, therefore, went there and made a statement (Exh. P. L) which was recorded by Manzoor Ahmad A. S. I. (P. W. 19) at 5.30 a. m. On 16-4- 1972. The formal F. I. R. Was subsequently recorded on the basis of his statement. The A. S. 1. Then visited the spot. People of the abadi had preserved the foot-prints of the decoits near the kotha.
Muhammad. Azim (P. W. 8), a. Tracker by profession, was called to follow the trial. He traced the foot-steps of the decoits up to the dead body and found that two others had joined them at that place. From that place onwards there were foot-prints of five persons but they were not prominent or well-defined enough to be used for preparing pnoulds. Three moulds (P. 10, P. 11 and P. 12) of foot- steps were, however, lifted from near the kotha of Allah Ditta complainant. The A. S. I. Prepared the injury statement, the inquest report, sent the dead body to the mortuary and took into possession some blood--stained earth from place where the deceased lay. He effected the arrest of the five accused on 10-5-.1972. Their shoes were taken into .Possession. The A. S. I. Sent them to the judicial lock up on the same day as he wanted to have an identification parade of their foot-prints. This was held on 16-5-1972, where the Magistrate-got the moulds of the foot-prints of Sanatta, Manzoor, Allah Ditta and Allah Yar, accused. These are exhibited as P. 27, P. 38, P. 39 and P.
40. The tracker who had earlier taken three moulds of the foot-prints of the dacoits from near the kotha compared them with the 4 moulds lifted in the Jail during the identification parade and found that they had matched with each other. During the investigation recovery of a number of the stolen articles 8 clothes were also made from Allah Ditta, Sanatta and Manzoor appellants. Those recovered from Allah Ditta appellant were Dohar (P. 7), Dopatta (P. 20), Shalwar (P. 21) and Dopatta (P. 22). Those taken into possession from the possession of Sanatta were, Shalwar (P. 29), lady's shirt (P. 30), chadar (P. 31), Shirt (P. 32) and Dohar (P. 8). The clothes recovered from the possession of Manzoor appellant were ; Dohar (P. 9), shirt (P. 33), a piece of cloth (P. 34) and a shirt (P. 35), as well as Sandeva (P. 36). These were identified by Allah Ditta complainant, to be those belonging to him as to the female members of his family. The appellant appeared before Riaz Hussain Shah (P W. 13) a respectable government official, belonging to the Agricultural Department, who was posted in the village to educate and train the cultivators, and trade a clean breast of the incident before him and sought his intervention. He produced them before the Police.
After completing the investigation the police filed the formal challan in the Court and put up the accused for trial: At the trial the prosecution relied on the evidence of Najabat (P. W. 16) and Allah Ditta (P. W. 17), with regard firing as well as the earlier incident. It also relied on the evidence of the retracted extra- judicial confession made by the appellants before Riaz Hussain Shah (P. W. 13) ; the testimony of the tracker and the evidence of the recoveries of stolen clothes from the three appellants.
3. The learned trial Court by its judgment dated 8-2-1975. Convicted all of them under section 396, P. P. C. And sentenced each of them to death with a fine of Rs. 2,000 each or in default of payment of fine to further undergo R. I. For 2 years each. On appeal before the High Court, Daulat and Allah Yar, two persons who had joined later, were acquitted of the charge under section 396, P. P. C. It convicted them under section 412, P. P. C., for the period already undergone by them. It also, maintained the conviction of the present appellants, namely, Allah Ditta, Sanatta and Manzoor under section 396, P. P. C. And confirmed the death sentence of Allah Ditta but reduced the sentence of the remaining two appellants to imprisonment for life.
The appellants then filed a Petition for Leave to Appeal before this Court. Leave was granted for reappraisal of the evidence mainly on the ground that tracker's evidence was not convincing.
The defence counsel also urged that since the accused were residents of the same village it is surprising that the complainant and his companions did not identify them and mentioned their names in the F. I. R.
4. We have beard the learned counsel for the appellants at length and have gone through the entire record. We have also perused the judgments of the trial Court as well as that of the High Court and considered each of the three pieces of evidence relied upon by the prosecution, namely, the trucker's evidence ; extra judicial confession and the recovery of the stolen garments during the dacoity from the possession of the appellants. We are inclined to agree with the learned counsel for the appellants that the statement of Muhammad Azim (P. W. 8) the tracker, that three moulds taken by him from near the kotha of Allah Ditta matched with the moulds of four of the accused namely, the three appellants and Allah Yara, is certainly ambiguous because at least one of the three moulds taken from the spot would have tallied with that of the two of the accused taken in the Jail during the identification parade. Neither the tracker nor any of the witnesses has clarified as to which mould out of P. 10, P. 11 and P. 12 taken from the spot tallied with the moulds Exh. P. 37, P.
39 and P. 40 taken in. The Jail. We therefore, propose to leave this piece of evidence out of consideration.
As for the evidence of Allah Ditta and Najabat, P. Ws. There is no reason to disbelieve their testimony. No previous hostility between them and the appellants has been suggested during the cross-examination, nor was B the recovery of the stolen clothes from the appellants criticized by the learned counsel before us.
The learned counsel only emphasized that the extra judicial confession made by the appellants before Riaz Hussain Shah (P. W. 13) is not of any value, firstly, because it was made before a person in authority an secondly it was a joint confession.T This submission is incorrect as well as misconceived. In the first place it is clearly evident from a reading of the statement of Riaz Hussain Shah (P. W. 13) that he is not a 'person in authority' in the sense that he wield any influence as would intimidate and induce the accused into making a false confession. He is merely an official of the Agriculture Department who has been posted in that village to impart instructions to the villagers about proper methods of agriculture. He is a middle, aged respectable man. H has no concern with either of the party and there is no reason to disbelieve him. From a reading of his statement we find that he has clearly state that each 4zf the accused had confessed before him about the guilt separate and has given details as to how they had planned the dacoity ; selected the house and executed it. We feel that the conviction of the appellants could safely be maintained solely on the extra judicial confession made by the before Riaz Hussain Shah (P. W. 13) and the recovery from them of the clothes belonging complainant and his family members during the investigation.
In this view of the matter we find no reason to interfere in the impugned judgment. The appeal is, therefore, dismissed as being without any merit.