Sadu and Majid petitioners were convicted under section 458/ 395, P. P. C. and sentenced to rigorous imprisonment for four years each on each count to run concurrently with each other, while Jaffar, Ghausi and Fazal petitioners were convicted under section 412, P. P. C. only and sentenced to rigorous imprisonment for two years each. On the failure of their appeal before the learned Sessions Judge, Lyallpur, who only converted the con viction of the latter three to that under section 411, P. P. C. they have approached this Court with a petition under section 439, Cr. P, C. to question the correctness of these orders.
2. The prosecution case in brief is that on the night between 5/6th February 1964, some unidentified persons armed with pistols, guns, lathis and chandalas ransacked the different rooms of the house occupied by Amir Din and Qutab Din P. Ws. at pistol point and decamped with their jewellery, clothes and cash. The alarm so raised attracted Mian Khan, Shamoon, Boohria and others, but as the dacoits were armed with different firearms no one mustered courage to give them a chase.
After sunrise six foot-prints of different persons were found around the place of occurrence which were secured for examination by the police. This dacoity was reported at Police Station Jaranwala at 12-30 p.m. on the next day by Amir Din vide Exh. P-4, without giving any details of the valuables lost by them in this dacoity or any description of the miscreants except three of them, who had dealt with them.
3. Qasim Ali Shah, Sub-Inspector Bhagtanwala mainly investigated the case assisted by Ch. Muhammad Hussin, Inspector, C. I. A. Sadu, Majid, Jaffar Ghausi and Fazal petitioners were arrested alongwith Khushi, Mohan Masth, Nazir Ahmed and Mohd. Hanif, who were discharged at earlier stage of the trial and Yousaf and Barkat Ali (since dead).
4. Nazir Ahmed, co-accused of the petitioners, led the police to the recovery of silver necklace (P.
2), and pair of gold ear-ring (P. 3/1-2) and warm Jarsi (P. 4) from his kotha on 16th March 1964, which were taken into possession vide Exh. P. C.
Jaffar petitioner led to the recovery of a pair of golden ear ring (P. 10/1-2 a warm pant (P. 11) and another warm pant (P. 12) and a warm coat (P. 13) on 8th April 1964, which were taken into possession by the police vide Exh. P. E. On the same day Majid petitioner led to the recovery of a pair of silver Band (P. 6/1-2) tied in a piece of cloth (P. 7), which were taken into possession by the police vide Exh. P. F. On the same day Ghausi petitioner led to the recovery of a pair of silver fhanger (P. 14/1-2) tied in a piece of silken cloth (P. 15) on 8th April 1964, which were taken into possession vide Exh. P. G. On the same day Sadu petitioner led to the recovery of golden Khanta (P. 1) and unlicensed pistol .303 bore which were taken into possession vide Exh. P. N. On the same day Yousaf, a co-accused of the petitioners (since dead) led to the recovery of a pair of silver Lachhe (P. 8/1-2), Champa- kali (P. 9) with an unlicenced pistol of .12 bore which were taken into possession vide Exh. P. J. Fazil petitioner led to the recovery of wrist watch (P. 16), a silver Jugni (P. 17/1-3), a pair of silver Perriband (P. 15/1-2) and a silver necklace (P. 19) tied in a white piece of cloth (P. 20) on the 7th of May 1964, which were taken into possession by the police vide Exh. P. D.
5. As none of the miscreants had been named in the first information report a test identification parade was held in the jail on 28th March 1964, under the supervision of Ch. Imtiaz Ahmad Sahi, Magistrate 1st Class, Lyallpur, wherein Amir Din P. W. could only identify Sadu and Majid petitioners out of the entire lot as the two persons who had participated in the dacoity at his house. Qutab Din P. W. only picked up Majid petitioner.
6. Six foot-prints of different persons had been secured by the police from around the place of occurrence and the same Magistrate had also supervised the track identification parade of the petitioners and their co-accused, but Jalla son of Nawaz and Gajju son of Walia, the two trackers could not pick up the foot prints of any of the petitioners and their co-accused. The con victions of the five petitioners was thus based on tbe result of the test identification parade and the recoveries detailed above which has been assailed before me on the following grounds :--
(1) That the report was lodged at the police station after more than eight hours of the occurrence and there was no explanation for this delay ;
(2) that no list of stolen articles was submitted to the police at the time of this report so the alleged recoveries at the instance of the petitioners and their co-accused have no evidentiary value ;
(3) that most of the recoveries had not been relied upon in respect of the co-accused of the petitioners Nazir Ahmad, Muhammad Hanif and Mohan Masih, who had been discharged by the trial Court ;
(4) that the inordinate delay in test identification was a mere farce as the petitioners had appeared in Court a number of times ;
(5) that there was no independent and reliable evidence to connect any of the petitioners with the alleged crime.
6. On being taken through the record of the case I am inclined to agree with these contentions of the learned counsel for the petitioners. The delay in lodging the report with the police is quite apparent as the occurrence had taken place at about 2 a.m. on 6th February 1964, but no effort was made to contact the police till 10 a.m. as admitted by Amir Din P. W., the informant himself, who had stated that he left for the police station at about 9-10 a.m. although the case was registered at the police station at 2-30 p.m. according to the recital in the relevant column of the first information report. This report even other-j wise was incomplete as no list of stolen articles was supplied toM the police at the time of the lodging of the report and that is what had substantially damaged the case as the subsequent list could be of no avail to the prosecution. The result is that it would be difficult to hold that the various articles alleged to have been recovered at the instance of any of the petitioners were in fact the proceeds of that dacoity and which is a basic ingredient of the offence under section 411 or 412, P. P. C. Moreover the various articles alleged to have been recovered at the instance of the petitioners are of common pattern which frequently change hands and in the present case had been recovered more than two months after the occurrence.
The recoveries from Jaffar, Majid, Ghausi and Sadu petitioners were effected on 8th April 1964, and that from Fazil petitioner on 7th May 1964. Three witnesses, who had attested the recoveries from Jaffar, Majid, Khushi Muhammad and Sadu, Niaz Ahmad and Ali Bakhsh had not supported the prosecution at the trial and Pir Mohammad had been given up as won over. The 4th witness Sardar Muhammad who had supported the recoveries from these petitioners was apparent ly a made-up witness as he had also testified to the recovery from Fazil petitioner as well although he was not a witness to that recovery and had been effected more than a month after these recoveries. He has given quite a detailed account of the recovered articles although he was examined more than four years after the occurrence, but when questioned about other witnesses who had accompanied the police at that time he could not mention the name of either of them which went a long way to show that he had been tutored about the recoveries said to have been made at the instance of various petitioners. Moreover Sardar Muhammad P. W. did not belong to the Chak of the petitioners from where the recoveries were effected. There was thus no reliable witness in this case to support the alleged recoveries from the petitioners coupled with the important factor that none of these articles had been detailed in the report as having been taken away by the dacoits during this occurrence. Even if it is presumed for the sake of argument that they were recovered at the instance of the petitioners their possession was not so recent as required under section 411, P.P. C.
These articles of common pattern were recovered from them after more than two months of the said dacoity. Before a person can be accused of an offence under section 411, P. P. C. the law requires that the articles alleged to have been recovered from his possession should be the proceeds af some theft, extortion or robbery etc. which had recently taken place and he had retained them with the knowledge or had the reason to believe the same to be stolen property. In the present case the prosecution had initially failed to establish that these articles had in fact been stolen or were the proceeds of any recent theft, robbery or dacoity and in view of the delay in recovery no presumption could arise that they knew or had the reason to believe that these articles were in fact taken away during this dacoity. Under the circumstances the benefit of this doubt cannot be denied to Jaffar, Ghausi and Fazil petitioners who have been convicted under section 411, P. P. C. in this case and accepting this petition acquit them of the charge levelled against them.
7. The same would be true of the recoveries effected at the instance of Sadu and Majid petitioners and the only other factor which has been relied to connect them with the offences under sections 458 and 395, P. P. C. is their identification at the test identification parade held in jail on 28th March 1964, about one month and twenty-two days after the alleged dacoity. Learned counsel for the petitioners has referred me to the order-sheet which indicates that the petitioners had been appearing in the Court on various occasions before the test identification parade was held and that the police had been delaying it on one pretext or the other. The statement of Ch. Imtiaz Ahmad Sahi, Magistrate who supervised this identification parade also showed that the two petitioners had taken (he same objection before him. They had told him that they had been appearing in the Courts on various dates fixed in the case before the identification parade was held and they had been shown to the P. Ws. by the Sub- Inspector. There was no evidence on the record to show that the two petitioners had been directed to take necessary precautions to conceal their identity as they had to be put on a test identifica tion parade. The value of identification evidence is very much minimised under these circumstances. I am fortified in taking* this view of the matter by the observations made in Debt etc. v. The State (1). Anyhow in respect of Sadu petitioner the importance of this test identification parade had even otherwise faded away as Amir Din when examined at the trial pointed out to Ghausi and Majid petitioners as the two persons identified by him at the test identification parade. He had thereby excluded Sadu as the person who had been picked up by him at the identification parade, his identification was thus a matter of bare chance which had no value in the eyes of law.
As regards Majid it was urged that he had two small pits underneath the cheek bones as admitted by Ch. Imtiaz Ahmad Sahi, Magistrate (P. W. 8) in his evidence at the trial which was quite a conspicuous feature of his face and could have facilitated his picking up at the test identification parade.
Qutab Din P. W. had stated that he had identified two culprits Ghausi and Majid in the test identification parade which had been belied by the Magistrate in his evidence who had supervised the identification as according to him he had only correctly picked up Majid petitioner at the parade. This witness added that Majid was one of the four persons who had ransacked his room and had run away before Amir Din P. W. came inside the room on hearing the hue and cry raised by him, so there was no occasion for Amir Din to have seen Majid petitioner on that night. This fact would support the assertion made by them that they had been shown to the witnesses before the identification parade was held.
Another fact which diminished the value of this identification is that it was held a month and 22 days after the occurrence as pointed out above and it cannot be believed that a person who [4] had just a momentary glimps of the culprits in a terror ridden atmosphere could have been able to remember the features of any of the miscreants after such a long time. In The Emperor v. Debit Charan (1) an identification held after two months of the arrest of accused was not looked upon with favour. The same views were expressed in Qabil Shah v. The State (2) wherein the test identification parade had been held one month and seventeen days after the occurrence and their Lordships did not accept the evidence of the identifying witnesses. A delayed test identification parade was also discarded in Mosharraf Hussain v. The Stale (3) as well. The identification of these two petitioners by Amir Din and Qutab Din P. Ws. could thus be of no avail to the prosecution, so the participation of Sadu and Majid in this dacoity was also not free from doubt. There being no other evidence to connect them with this crime of the alleged dacoity, I accept this petition on their behalf as well aid acquit them of the charge under section 458/395, P. P. C. The five petitioners shall be released from jail forthwith, if they are not required in any other case. .
(1) AIR 1942 All. 339 (2) PLD 1960 Kar. 697
(3) PLD 1970 Dacca 686