The five appellants along with two others, namely, Nawaz and Isa, were tried under section 395/397/412/75, P. P. C. All of them, except Isa, were convicted under section 395/397, P. P. C. and were sentenced to seven years' rigorous imprisonment each. Isa was, however, convicted under section 412, P. P. C. but it does not appear that any appeal has been filed by Isa and Nawaz.
2. The allegation against the appellants is that while they were armed with fire-arms, they committed dacoity in the house of Sultan (P. W. 2) at about 10 or 11 p.m. on the night of 25th of July 1964, in village Akeki, Police Station Kanganpur, District Lahore. During the commission of the dacoity they caused injuries to Sultan Khan (P. W. 2) and his wife Mst. Sakina (P. W. 1).
3. The first information report Exh. P. A. was lodged by Karim Khan (P. W. 5) and was recorded by A.S.I. Walayat Ahmad Khan (P. W. 29). It is mentioned therein that live persons had, at about midnight, forced their entry into the house of Sultan Khan P. W. and after giving him a beating, compelled him to part with the keys of the safe which they opened and took away cash and gold and silver ornaments.
According to the first informant, the decoits were pursued but they fired with their rifles and guns in order to ward off their arrest and were successful in effecting retreat. A detail of the stolen property was given by Sultan to the police as also at the trial. Besides the silver and gold ornaments, 1200 silver coins and currency notes worth Rs. 8,000 are also said to have been taken away by the dacoits. The police found seven empties from the place of the occurrence. Mst. Sakina (P. W. 1) and her husband Sultan Khan (P. W. 2) had injuries on their persons and were examined by the doctor.
There were twelve injuries on the person of Sultan Khan which had all been caused with blunt weapon and were simple. Mst. Sakina had three injuries on her person one of which had been caused by a ftre-artn and the other two by blunt weapon. Her injuries were also simple.
4. Out of the appellants, Shabbir Ahmad was arrested on 7th of September 1964. The other four, namely, Bashir Ahmad, Najab Khan, Jalal and Rustam alias Rusman were arrested on 4th of September 1964, by a police party headed by Malik Sarfraz Khan Inspector of Police (P. W. 34) from the Dera of Najab Khan appellant in village Behrwal. At the time of their arrest the police recovered from Najab Khan pistol P. 32 and two live cartridges P. 33/1-2 vide memo. Exh. P. M. A key Exh. P. 40 was recovered from his person as a result of his personal search and by this key the suit-case which was lying in the house of Najab Khan, which is near his Dera, was opened. It contained 580 silver coins of the denomination of Re. 1 each which were taken into possession vide memo. Exh. P.
U. A pistol P. 34 with three live cartridges was recovered front Bashir Ahmad appellant at the time of his arrest. He also led to the recovery of a gold necklace (Inam) P. 3 vide Exh. P. L. from his house.
Stick P. 39 was recovered from Rustam alias Rusman appellant at the time of his arrest and was taken possession of. It transpired during the investigation that he had sold 620 silver coins of Re. 1 denomination each and silver ornaments P.6 to P. 13 to Ghulam Ali (P. W. 11) of Rang Mahal, Lahore, for Rs. 1,876 vide receipt Exh. P. H. dated 28th of July 1964. This sale was witnessed by Muhammad Bashir (P. W. 12) and Barkat Ali (P. W. 24).
Jalal at the time of his arrest was in possession of rifle P. 29 and had fourteen live cartridges. They were taken into possession vide memo. Exh. P. O. It also came to light that he had sold a pair of gold dalulis P. 15 to Akbar (P. W. 10) a goldsmith of Chunian vide receipt P. G/2 on 28th of .July 1964.
The receipt bears the signatures of Khushi Muhammad (P. W. 17). On 5th of September 1964, from the house search of Jalal a gold ring and two gold ear-rings Exits. P. 22 and P. 5 respectively and one pair of silver pin P. 21 were recovered vide memo. Exh. P. Y. which was signed besides S, I. Malik Muhammad Akratn (P. W. 39) by Ata Muhammad (P. W. 28) and Ghulant Rasul (P. W. 31).
Shabbir Ahmed appellant after his arrest by S. I. Muhammad Latif Shah (P. W. 33) disclosed that he had sold the ornaments P. 16 and P. 17, i.e. two gold nose pins {Loungs) and two pairs of Drndis to Habibullah (P. W. 6) a goldsmith of Chunian vide receipt dated 28th of July 1964. The receipt was signed by Ramzan (P. W. 8) and Hakim Ali Khan (P. W. 9).
5. The thumb-impressions on the receipts said to have been executed by Rustam, Jalal and Shabbir Ahmed appellants were sent for Expert Examination and according to the evidence of S. 1.
Rehmatullah (P. W. 36) a Finger-print Expert they tallied with their genuine thumb-impressions. It was also found from evidence that one of the '303 empties recovered from the spot was wedded to the rifle P. 29 recovered from Jalal at the time of his arrest.
6. An identification parade was held on 9th of September 1964, at Kasur Jail by Mian A. K. Naseem, Tehsildar with powers of Magistrate 2nd Class, Kasur (P. W. 35). There were only two witnesses who were asked to identify the accused, namely, Mst. Sakina (P. W. 1) and Sultan Khan (P. W. 2). Both of them were not able to identify Jalal. Mst. Sakina was able to identify Shabbir Ahmed, Bashir and Najab Khan while Sultan identified Shabbir Ahmed, Najab Khan, Nawaz and Rustam alias Rusman.
7. The learned counsel who appears for the appellants in this case submitted that the identification evidence was wrongly relied upon by the learned trial Court. He raised the following objections to the evidence of identification:--
(i) that in the F. I. R. it was stated that there were five dacoits but latter on the prosecution raised their number to seven. The two eye-witnesses i.e., Mst. Sakina and Sultan Khan stated that when five were busy in committing the dacoity, two were standing outside. It was pointed out with reference to the identification parade that the witnesses have not assigned any particular part individually to any of the accused except by generally asserting that they had committed dacoity and had given beating to the witnesses;
(it) that no description of the dacoits had been given in the F.
1. R. nor had the witnesses given any satisfactory description of the dacoits in their statements before the police or the committing Magistrate; (it/) that there were seven dacoits to be identified and only twenty persons were mixed with them which number is insufficient in view of the principles laid down by judicial pronouncements. The contention of the learned counsel was that each accused should have been separately identified and each witness should have been called for several times; and
(tv) that the identification parade was held on 9th of September 1964, and before that the accused had been taken for recovery to various places and had also been produced in Court and there was every chance for the witnesses to have seen them.
8. The learned State counsel has not been able to meet this argument effectively. Mst. Sakina stated that she identified Shabbir Ahmed because of his cattish eyes and Najab Khan because of his moustaches. She did not make such a statement before the police or the committing Magistrate and it appears to be an afterthought, in my view, the evidence of identification is not satisfactory, especially, when the occurrence had taken place at night time and the number of persons mixed at the time of identification parade was short of what was held to be satisfactory in Kaitn and others v. The State (1) and Wahid Bux and others v. The State (2).
9. We are now left with the evidence of recoveries. It was said that Slier Muhammad was inimical to Najab Khan. There are indications on the record to support this assertion. Defence evidence was produced at the trial to show that the appellants were not the persons who had committed dacoity and that there was bad blood between Najab Khan on one side and Sher Muhammad and Siddiq P.
Ws. on the other. Mahbub Ali (D. W. 5) stated that nothing was recovered from the possession of Najab Khan. There is no attack on the evidence of recoveries so far as the other appellants are concerned. The receipts executed by Rustam, Jalal and Shabbir Ahmad were duly proved by Rehamatullah (P. W. 36) and other signatures to these receipts. These appellants never claimed the recovered articles to be their own property. Bashir Ahmed led to the recovery of the gold lnam vide memo. Exh. P. L. on the very day of his arrest from his house. One of the empties from the spot was found to have been wedded with the rifle recovered from Jalal appellant but that fact would not show that he was participant in the commission of the ollence in the house of Sultan Khan P. W. especially, when he was not identified by any witness.
10. We have seen above that evidence was produced to show that Shcr Muhammad (P. W. 26) and Muhammad Siddiq (P. W. 30) had sonic sort of animus to involve Najab Khan. The silver coins recovered at his instance do not necessarily involve him in the commission of the offence because they are not identifiable. 1, therefore, give him the benefit of doubt and acquit him. [10] recovery against Bashir Ahmad and of sale against Rustam, Jalal and Shabbir Ahmed comes from independent and unattached witnesses. 1, therefore, find that while the conviction of the appellants, other than Najab Khan, cannot be sustained under section 395/397, P. P. C. their offence clearly falls within the orbit of section 412, P. P. C. They were sentenced on 14th of March 1966 and have already undergone a term of imprisonment of over five years. I think in the circumstances of the case reduction of their sentences to those already undergone will meet the ends of justice. I .