1. A. QUASIM, J.-These to appeals, arising out of the same judgment and order of conviction, have been heard together.
2. The Appeal No. 139 of 1967 has been preferred by the accused Kala Miah of village Amirpur, while the other appeal, namely, the Appeal No. 236 of 1967 has been preferred by the other six accused, namely, Mirza Azizur Rahman alias Kala (hereafter we shall call him Azizur Rahman) Ruhini Sutradhar alias Jitu, Ramzan Ali, Gaibullah, Mahram Ali and Abdul Gani.
3. The above-mentioned appellants were tried by an Assistant Sessions Judge of Sylhet. Kala Miah was charged under sections 399 and 216-A of the Pakistan Penal Code while the other accused persons were charged under sections 399 and 402 of the Pakistan Penal Code. The trial was held with the aid of three assessors all of whom were of opinion that the charges were fully proved and they found all the accused persons guilty of the charges framed against them. The learned Assistant Sessions Judge, agreeing with this opinion, convicted the appellant Kala Miah under sections 399 and .216-A of the Pakistan Penal Code and sentenced him to rigorous imprisonment for seven years on each count, the sentences were, however, made to run concurrently. The learned Judge also convicted the other six accused that is the appellants in Appeal No. 236 of 1967 under sections 399 and 402 of the Pakistan Penal Code anal sentenced each of them to rigorous imprisonment for seven years en each count, the sentences were however made to run concurrently.
4. The prosecution case may briefly be stated as follows: Sub---Inspector Sikim Ali, Officer-in-Charge of the Derai Police Station within the district of Sylhet received some secret information, and acting on the said information he proceeded to village Amirpur within the said police station. This was on Wednesday the 21st of Ashar 1373, B. S. Corresponding to the 6th July 1966. Sub-Inspector Sikim Ali was accompanied by police force consisting of Assistant Sub-Inspectors Mahtab Mia Chowdhury and Sashadhar Das and Constables Mobarak Mia, Sirajuddin and Mohammadullah. The Police party was obviously suitably armed. When the party reached Dhal Bazar which is not far of from Amirpur, the Sub-Inspector picked up three local witnesses Mobarak, Ahmad and Haricharan. The movement was in the haor area (watery area) and the Police party. And the local witnesses proceeded in boats. Two constables belonging to the river police, namely, Abdur Rashid and Bazlur Rahman were picked up by the Sub-Inspector of Police from the said area. The party reached Amirpur close to the ghat of the accused Kala Miah at about 5-30 p. m. And the Sub-Inspector of Police and his companions saw a big boat anchored at that ghat. When the party reached close to this boat three of its occupants jumped in the water and disappeared in the house of appellant Kala Miah. The Sub-Inspector directed Assistant Sub-Inspector Sashadhar Das and the constables to follow these three persons. Thereafter, the Sub-Inspector, with the help of the other members of the party arrested the accused Ramzan Ali, Moharam Ali-and Gaibullah within the said boat. He also seized from inside the boat one single-barrel gun, a number of live cartridges, a few ramdaos, one sword, a number of torch lights, to falas, a number of other articles including some utensils.
5. Thereafter, the Sub-Inspector, accompanied by the public witnesses, went to the house of Kala Miah and managed to arrest the accused Azizur Rahman, Ruhini Sutradhar alias Jitu anti Abdul Gani who made an attempt to run away from one of the huts of Kala Miah through a back door.
6. After having caused the arrest of the six accused (appellants in Appeal No. 236 of 1967) and after having prepared a seizure list of the articles found in the boat the Sub-Inspector came back to the Police Station and lodged formal First Information Report with a view to start a .Suo motu case. The Sub-Inspector examined witnesses, prepared a sketch map of the locality, took other steps and ultimately submitted a charge-sheet against the appellants in Appeal No. 236 of 1967 and also against Kala Miah, the appellant in Appeal No. 139 of 1967.
7. Initially there was a local inquiry and after the commitment the seven appellants before us were tried by an Assistant Sessions judge with the result already indicated above.
8. The appellant Kala Miah appears to have taken the defence that he was absent from his house during the relevant the and had nothing to do either with the boat or with the accused persons found therein. He appears to have further pleaded that he was falsely implicated in the case at the instance of P. W. 4 Ahmad Miah on account of enmity and village rivalry. The other appellants appear to have taken a joint plea to the effect that they were not at all in that boat. Azizur Rahman further tried to show that he was one- of the Directors of a film company and was, a man of position and respect and his visit to the locality was for the purpose of selling the shares of his company. The learned Judge took note of the points raised in defence and was satisfied that they had no merit.
9. The appellant Kala Miah (Appeal. No. 139/67) has preferred his appeal through Mr. Ahmadur Rahman Khan, Advocate, while the other six appellants (Appeal No. 236 of 1967) have sent their memorandum of appeal from jail. Although Mr. Ahmadur Rahman Khan did not have any brief from the appellants in the other appeal, on our desire, he argued both the appeals and traversed through the whole matter. While arguing for Kala Miah Mr. Ahmadur Rahman Khan contended that there was no material on record to bring him (Kale Miah) within the mischief of law and while arguing the appeal of the other appellants he tried to show that in view of the discrepancies and omissions the conviction could not be legally upheld.
10. Mr. S. S. Hoda, the learned Advocate for .The State, has, however, tried to show that the conviction recorded by the learned Assistant Sessions Judge is fully justified by the materials on record. Both the learned Advocates, however, conceded that a conviction under section 399 as well as section 402 of the Pakistan Penal Code would not legally be valid in view of circumstances of the case.
11. We propose to consider first the case of Kala Miah, the appellant in Appeal No. 139 of 1967. His name does not appear in the First Information Report land it is admitted by the prosecution witnesses that neither he nor his brother Alkab Mia was present in the house when the police reached the locality at about 5-30 p. m. It is further admitted that nothing incriminat--ing was found in the house of Kala Miah in course of a subse--quent search. An attempt has been made to bring him within the mischief of law by the evidence of P. W. 6 Rihan Ullah, P. W. 7 Aiyub Ali, P. W. 8 Raidhan Das and P. W. 9 Abdul Barek. Rihan Ullah (P. W. 6) is a man of Amirpur. He states that on the 19th Ashar last he saw a boat in the ghat of Kala Miah with 4 or 5 men inside. He, however, cannot say the names of those men. Of course he identified them in Court as the appellants in Appeal No. 236 of 1967 but this identification has no meaning. He goes on to say that these men visited the house of Kala Miah and lived with him, and when he asked Kala Miah about them, the latter replied that they were his relations. The witness admits that he is a relation of P. W. 3 Mobarak Miah another local witness and the testimony of Mobarak shows that he is a man of P, W. 4 Ahmed Miah's party. It is admitted that Modares the father of Ahmed Miah was a rival of appellant Kala Miah in the Union Board election. The cross-examination of Rihan Ullah further shows that he is under the influence of Modares. Towards the end of his cross-examination he states that he did not state what he has stated now on any prior occasion. Thus, it is difficult to understand as to how the Investigating Officer knew that the witness had knowledge of something which could go against Kala Miah. Ayub Ali (P. W. 7) is also a man of Arnirpur. He states that on one occasion he himself and some other persons accompanied by Kala Miah visited village Gunai in another police station for the purpose of bringing Kala Miah's daughter back from her husband's. He goes on to say that after reaching the house of his son-in-law Kala Miah took him to a pleasure trip by boat and then he went to the house of the accused Azizur Rahman (it may be noted here that the accused Azizur Rahman appears to be a man of Gunai). He further states that Kala Miah stayed there and sent him back.
12. Thus an attempt has been made with the help of this witness to show that Kala Miah had association and connection with the other accused person. In this cross-examination the witness admits that he is a day labourer. Ayub Ali also tries to show that the other accused persons went to the house of Kala Miah on Wednesday morning (the arrest was made on Wednesday afternoon). It appears, however, from his deposition that he hardly knows the accused persons. The witness admits that Firoz (tendered witness No. 10) is the son of Modares and Firoz is also his first cousin.
13. Thus obviously he has deposed at the instance of Modares. Further the witness admits in cross- examination that he had consultation with the Officer-in-Charge in the matter of deposition. Thus, no doubt, he is a tutored witness. Raidhan Das (P. W. 8) is also a co---villager of Kala Miah. He states that Kala Miah went to his house accompanied by accused Ruhini and Gani on the 20th Ashar and requested him to give some cartridges, but he refused to comply. He goes on to say that when these men were coming back he followed them and saw four other persons in the boat. This witness is the uncle of P. W. 5 Hari Charan Das who appears to be an associate of P. W. 4 Ahmed Miah. It appears, from his cross-examination that he cannot see for the last to years and is unable to read. Thus obviously it was not possible for him to recognise some of the accused persons and to follow them up to the boat. Abdul Barek (P. W. 9) Is also a man of Amirpur. His testimony is to the effect that he saw the other six accused persons visiting the house of Kala Miah and taking their meals and he also states that on being questioned by him Kala Miah told him that they were his relations. The witness claims to have seen the arrest of the accused persons but he says that the arrest took place at the the of Zohar prayer. It is, however, admitted that the arrest took place at about 5-30 p.m. Which was the the for Asar Prayer. Although the witness denies that he is a tenant of Modares the circumstances show that there is truth in the suggestion.
14. P. Ws. 6 to 9, as shown above have tried to show that Kala Miah had some sort of association and understanding with the other accused persons. It, however, appears that all of them are under the influence of Modares the father of P. W. 4 Ahmad Miah and it is admitted by Ahmed Miah that Modares and Kala Miah were rival candidates in the 'Union Council election. This being the nature of evidence it is not possible to hold that the appellant Kala Miah was actively connected with the other accused persons who assembled in a boat with weapons inside near his ghat. Thus it cannot be said that Kala Miah belonged to the party which made preparation to commit dacoity or that he harboured dacoits and robbers. It appears that the appellant Kala Miah was implicated in the case at the instance of Modares and P. W. 4 Ahmed Miah simply because the boat in question was found anchored near his ghat. Thus we are satisfied that the prosecu--tion has failed to establish any of the to charges framed against the appellant Kala Miah.
15. We come now to the case of the other six accused, that is, Azizur Rahman and others who are the appellants in Appeal No. 236 of 1967. The Sub-Inspector of Police who took the leading part in this matter and who subsequently lodged a suo motu First Information Report has deposed as P. W. 13 (Sikim Ali), P. W. 1 Mahtab Miah Chowdhury (Assistant Sub---Inspector of Police), P. W. 2 Sashadhar leas (another Assistant Sub-Inspector of Police) and three local witnesses, namely, P. W, 3 Mobarak Miah, P. W. 4 Ahmad Miah and P. W. 5 Hari Charan Das are the material witnesses on the point of arrest of these accused persons. The testimony of the witnesses shows that Mobarak Miah, Ahmed Miah and Rari Charan Das were picked up in Dhal Bazar, Amirpur. The testimony further shows that as soon as the boat of these persons reached close to the ghat of Kata Miah three persons jumped out in the water from a boat anchored there and ran to one of the huts of Kala Miah. On being asked by the Sub-Inspector of Police Sikim Ali, Assistant Sub-Inspector of Police Sashudhar Das and three constables followed these three accused persons and subsequently the Sub-Inspector himself accompanied by the three local witnesses, namely, Mobarak Miah, Ahmed Miah and Hari Charan Das went to that house. On being challenged by the police the three persons came out of a but and tried to escape from the back door but were arrested while doing so. Before going to that house the Sub-Inspector with the help of Assistant Sub-Inspector Mahtab Miah Chowdhury and to constables of the river police caused the arrest of the remaining three accused within the boat and also seized a number of weapons including a gun and other articles. The cross-examination made on behalf of the appellants in Appeal No. 236 of 1967 is of a vague nature. It has been simply suggest--ed to the witnesses that the accused persons were neither arrested near the house of Kala Miah nor within the boat anchored. But there is no positive suggestion as to the real place of arrest. The arrest of the accused persons is admitted and it is further admitted that the boat from where a number of weapons and other articles were seized was lying at that place. There is nothing on record to show that the police witnesses triad any reason to implicate these accused in a false case. In his cross-examination P. W. 1 Mahtab Miah Chowdhury states that the accused Rahini Sutradhar and Abdul Gani had previous conviction. It is true that P. W. 4 Ahmed Miah has grudge against the appellant Kala Miah (Appeal No. 139 of 1967) because of the election' rivalry but there is nothing on record to -indicate that either he or the other to local witnesses, namely, Mobarak and Hari Charan Das had any enmity or ill-feeling against these accused persons (Azizur Rahman and 5 others). As a matter of fact the testimony of these witnesses shows that they had no previous acquaintance with these accused persons and they saw them only on that occasion.
16. We have already noted that among the articles seized from inside the boat there was a gun and a number of live cartridges. Sub-Inspector Sikim Ali (P. W. 13) states that subsequently the owner of this gun was traced out and a case of theft in respect of the gun was started. This statement has not been challenged. It is obvious, therefore, that the gun was a stolen property. This fact, in itself, is sufficient to indicate that the persons within the boat had a guilty intention.
17. It appears that three constables, namely, Mobarak Mia (this should not be confused with the local witness Mobarak Miah), Sirajuddin and Mohammadullah accompanied the Sub-Inspector from the police station and it also appears that to constables belonging to the river police namely, Bazlur Rahman and Abdur Rashid were picked up on the way. The Constables Mobarak Miah, Sirajuddin and Mohammadullah have not been examined. Abdur Rashid and Bazlur Rahman have appeared as tendered witnesses (P. Ws. 11 and 12 respectively). In his cross-examination Constable Abdur Rashid (P. W. 11) states: "In July I did not go anywhere with O. C. Of Dherai. Then says, I went with him on the 6th."
18. In his 'cross-examination, Bazlur Rahman (P. W. 12) states: "I did not make any statement either to the Police or to the Magistrate. River police is not under the O. C. We were on patrol. We met O. S. Sb. In Dherai from where we went with him for raid." Thus the to tendered constables of the river police have not done any damage to the prosecution. The non- examination of the three constables of Dherai Police Station can well be understood because when the Sub-Inspector and to of his Assistants were deposing in this case hardly any corroboration was required from the constables.
19. The accused Azizur Rahman has taken a special plea to the effect that he was a Director of a Film Company known as the Bonani Film Company Limited and went to the locality in the boat to sell shares to the villagers. In support of this defence some papers have come on record and also to D.
20. Ws. Have been examined. D. W. 1 Md. Obaydul Haque is the Sub-Jailor of Sunamganj Jail. He states that Mirza Azizur Rahman alias Kala was admitted in Sunamganj Jail on 8-6-66. He also states that he noted in the custody warrant the belongings of the accused and found on his person a Shaheen Clip File and also a receipt book. The custody warrant has not, however, been produced. In his cross-examination the witness states that the belongings were noted in the admission register but this register has not been called for. The Shaheen Clip File has been marked as Exh. A and the receipt book has been marked as Exh. B on being proved by D. W.
2. Moksid Hossain is the Deputy Jailor of Sylhet. His brief examination-in-chief runs as follows: "I am Deputy Jailor, Sylhet Jail. I have brought an application filed by Mr. Soab Ali who brought this file and receipt book from the Sylhet Jail by filing this application."
21. The cross-examination of the witness runs as follows: "This petition was filed to the Jail Superintendent. This petition does not contain any endorsement of the persons who received it and it also does not contain any official seal. The date of the return of the articles is not mentioned in the petition. I cannot say who made the relevant entries in the admission register under trial accused."
22. This deposition would show that one Soab Ali obtained Exhs. A and B on filing petition to the Jail Superintendent, Sylhet. It is curious, however, that this petition is not on record. It is also curious as to how and under what circumstances the Jail Super--intendent, made over Exhs. A and B. To Soab Ali. As a matter of fact the whole thing appears to be mysterious because Soab Ali is not a witness before us and there is no explanation as to why and under what circumstances these papers were made over to a third party. The receipt book Exh. B shows that a share was sold for Rs. 10 to Mr. Ramzan Ali, but this man has not been examined. The circumstances clearly indicate that Exhs. A and B have come on record in a surreptitious manner, and there is no evidence worthy of reliance to show that these papers were actually found in possession of the accused Azizur Rahman when he was taken to the Sunamganj Sub-Jail. Thus the accused Azizur Rahman has made a futile attempt to show that he was one of the Directors of a Film Company and went to the locality, to sell the shares of the said company. But in making this attempt he has indirectly admitted that he went to the locality and was found in the boat seized by the police.
23. The appellants in Appeal No: 236 of 1967, that is, Azizur Rahman and five others have been convicted and sentenced both under sections 399 and 402 of the Pakistan Penal Code. The sentences are, however, to run concurrently. The question which arises for our consideration at this stage is whether in the circumstances of the case the conviction under both these sections can be legally justified. Section 399 of the Pakistan Penal Code runs as follows: "Whoever makes any preparation for committing dacoity, shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
24. Section 402 of the Pakistan Penal Code runs as follows: "Whoever, at any the after the passing of this Act, shall be one of five or more persons assembled for the purpose of committing dacoity, shall be punished with rigorous imprison--ment for a term which may extend to seven years, and shall also be liable to fine."
25. In the instant case we have noted that the six accused had not only assembled in boat but were also in possession of a gun and other. Lethal weapons. Thus it was not a mere assembly of six persons but some thing more. As a matter of fact whatever was necessary. To be done before the commission of dacoity bad been done and the only thing which remained to be done was the commission itself. The relevant portion of the charge under section 399 of the Pakistan Penal Code framed in the case runs "--------made preparation to commit dacoity by assembling with deadly weapons in the ghat of accused Kala Miah of Amirpur------------ and, the relevant portion of the charge under section 402 of the Pakistan Penal Code runs as follows: " ------ on or about the same day and same the were persons assembled for the purpose of committing dacoity . : . . ."
26. Thus, as the charges have been framed in the, present case, "assembly" is included in the charge for preparation to commit dacoity. In other words in the instant case the elements of section 402.
27. Of the Pakistan Penal Code are included in the charge framed under section 399 of the Pakistan Penal Code. As a matter of fact assembly for the purpose of dacoity is itself an element of preparation, but since section 402 of the Code covers such "assembly" section 399 of the Code is not attracted. Thus when there is an assembly and something more the to together constitute preparation and then section 399 of the Code is attracted. This view has been expressed in the case of Ramesh Chandra Banerjee v. Emperor (1 L R 41 Cal. 350).
28. We may note here that in the case of Zamir Hussain and others v. The Crown (PLD 1949 Lah. 179) it has been held that the offence described in section 235, Indian Penal Code, is included in the offence described in section 232, Indian Penal Code and separate convic--tions and sentences under these to sections are improper and illegal. It cannot be said generally': that an offence under sec--tion 399 includes an offence under section 402 of the Pakistan Penal Code. But in the instant case, according to the charges framed, the elements of section 402 of the Pakistan Penal Code are clearly included in the charge under section 399 of the Pakistan Penal Code. Thus we are inclined to take the view that a conviction under both the sections, that is, under-sections 399 and 402 of the Pakistan Penal Code would be improper .And illegal: We have shown above that in the instant case there was not only an assembly of six persons but there was something more also. The six persons were seated in a boat and were in posses--sion of a gun with live cartridges and some lethal weapons. Thus they were fully prepared to make a raid.
29. We are, therefore, satisfied that the case of Azizur Rahman and others (appellants in Appeal No. 236 of 1967) is covered by section 399 of the Pakistan Penal Code and once they are convicted under this section there is no scope for further conviction under section 402. Of the Pakistan Penal Code.
30. In the result, we allow the appeal of, Kala Miah (Appeal No. 139 of 1967) and set aside the order of conviction and sentence passed against, him under sections 399 and 216-A of the Pakistan Penal Code. The appellant Kala Miah is acquitted of the charges framed against, him and we direct that he be set at liberty forthwith if not wanted in any other connection: We, however, dismiss the appeal of Azizur Rahman and five bothers (Appeal-No. 236 of 1967)-with this modification that their conviction and sentence under section 402 of the Pakistan Penal Code are set aside. But the order of conviction and sentence passed against-them under section 399 of the Pakistan Penal Code is armed.
31. NURUL ISLAM, J.-I agree.