1. B. Z. KAIKAUS, J.-In respect of a dacoity accompanied with murder committed in the house of Shaikh Noor Illahi, a saraf of Uch Sharif, District Bhawalpur, three persons, that is, Mulazim Hussain, Baggoo and Niamat Ali, were tried by the Sessions Judge, Rahim Yar Khan, under sections 302/149, 396 and 460 of the Pakistan Penal Code. The dacoity was said to have been committed by five persons but one of them, that is Muhammad Anwar, had turned an approver and the fifth Jaffar Shah was shown as an absconder. The Sessions Judge convicted all the accused and sentenced them to death under section 302/149 and to transportation for life separately under sections 395 and 460, P. P. C. On appeal, the West Pakistan High Court confirmed the sentence of death of Mulazim Hussain but acquitted Baggoo and Niamt A11. Two appeals by special leave have been filed in this Court, Criminal Appeal No. 30 of 1961 by Mulazim Hussain, challenging his conviction and Criminal Appeal No. 31 of 1961 by Mehar AlI complainant, challenging the acquittal of Niamat Ali and Baggoo. This judgment will dispose of the appeal of Mulazim Hussain as well as the appeal of Mehar Ali in so far as it relates to Niamat Ali. We are not deciding the case of Baggoo as he has not been served and his whereabouts are at present said to be unknown.
2. Sheikh Noor Illahi deceased who was about sixty-five years' old was living in his house along with his third wife Mst. Amir Khatoon aged about sixteen or seventeen years. According to the prosecution case on the morning of 24th of December 1957, when Farid Bakhsh the father of Mst.
3. Amir Khatoon, came to the house of the deceased in pursuance of an appointment made with the deceased he found the main entrance of the house as well as the door of the room containing the safes open and some silver ornaments lying scattered in the courtyard. When he called out it was Amir Khatoon who responded and she said that Noor Illahi had been murdered and she was lying tied up in her bed. Instead of going to Amir Khatoon, Farid Bakhsh went to Mehar Ali P. W., son of Noor Illahi deceased and step-son of Amir Khatoon, and told him what he had seen. Meher Ali came with him to the house and found that his father lay murdered on his cot. He and Farid Bakhsh then went to the room where Amir Khatoon was and untied her. The safes of the deceased were lying open and a good deal of property in the form of Cash and silver and gold ornaments was missing. A report was lodged at Uch Sharif Police Station the same day by Mehar Ali. The state-- ment of Mst. Amir Khatoon was recorded the same day and investigation went on. As has been brought out by the defence in cross-examination suspects were being brought to Mst. Amir Khatoon, but she refused to accept that any of one of them was the culprit and for some time the case remained untraced.
4. Mulazim Hussain appellant belongs to Uch Sharif but was posted as a foot-constable in the Police Lines, Rahim Yar Khan, in charge of a police guard consisting of four other constables. In January 1958, eight rifles had been stolen from the malkhana of Kot Samaba Police Station which is in District Rahim Yar Khan and Mulazim Hussain who was discovered to have been absent from duty from the 21st to the 25th of December 1957, had been made to join the investigation of that case as a suspect. It may be stated here that Rahim Yar Khan is at a distance of about eighty miles from Uch Sharif and Uch Sharif is in Bahawalpur District. During the course of his interrogation in that case Mulazim Hussain appellant furnished information with regard to property lying buried in his house acquired in a dacoity. At this Hafiz Najmuddin, Deputy Superintendent of Police, Khanpur District Rahim Yar Khan, arrested him and took him to his house in Uch Sharif and in the house were found buried in the ground silver ornaments whose weight exceeded a maund and which were subsequently identified as having been lost during the dacoity in the house of Sheikh Noor Illahi deceased. Mulazim Hussain appellant also gave information with respect to Baggoo and the police party then proceeded towards the house of Baggoo who too belongs to Uch Sharif, but while they were on their way they came face to face with Baggoo. Mulazim Hussain pointed to him and Baggoo tried to run away but was arrested on the spot and some silver ornaments were recovered from the folds of his loin-cloth. Subsequently, on further information received from Mulazim Hussain, Muhammad Anwar approver was arrested on the 27 January and Niamat Ali respondent on the 29th January by the Rahim Yar Khan police. On or about the 3rd of February the matter was handed over to the Uch Sharif police whose duty it was to investigate and send up the case for trial.
5. The Uch Sharif police made some recoveries from Muhammad Anwar approver, Mulazim Hussain appellant and Niamat Ali respondent and, after securing pardon for Muhammad Anwar as an approver, it sent up the three accused for trial.
6. Evidence produced at the trial consists of --
(1) statement of the approver;
(2) recoveries made from the three accused;
(3) statement of Mst. Amir Khatoon;
(4) statement of Habib Ullah (P. W.) who saw all the members of the gang on their way from Rahim Yar Khan to Uch Sharif;
(5) statements of Muhammad Ali, Muhammad Iqbal and Nabi Bakhsh who saw the culprits at different stages on their way back from Uch Sharif; and
(6) evidence relating to the absence of Mulazim Hussain appellant from duty at the relevant time.
7. Muhammad Anwar approver who is a Muhajir shopkeeper stated that he had come to know Niamat Ali and Jagar Shah, both of whom were living at Rahim Yar Khan, as they were his comrades in wrestling. Jaffar Shah introduced him to Mulazim Hussain and after discussion in ath meeting they agreed on oath of secrecy to commit dacoities and thefts. Some small robberies were committed successfully and then Mulazim Hussain appellant suggested that they should embark on a bigger venture. He sug--gested his own town for further activities because there were at that place a number of rich persons. All the four then went to Uch Sharif where Mulazim Hussain appellant had arranged for the participation of Baggoo, that local members of the party, who suggested that they should commit dacoity in the house of Noor Illahi deceased who was a wealthy saraf. After some discussion this was agreed upon. On the night between the 23rd and 24th of December 1957, they went to the house of Sheikh Noor Illahi at mid-night. Luckily they found the door of the bath room open; entering the house they found Sheikh Noor Illahi and his young wife, the only two inmates of the house, lying asleep on one charpoy. In accordance with a plan prepared by Jaffar Shah absconder, who was said to be the leader of the party, Muhammad Anwar approver and Baggoo sat on the chest of Noor Illahi, Muhammad Anwar aimed a pistol at him and Niamat Ali and Mulazim Hussain secured his legs. Then Jaffar Shah commenced throttling the deceased. The deceased put up a great deal of resistance and in the struggle the lamp burning in the room was broken and went out. Lust. Amir Khatoon was thrown down from the cot, and ordered under threats to keep quiet. Her eyes were bandaged. After some time the bandage was untied and she was questioned as to where the keys were. In the meantime the lamp had been relit. At first she told them that the keys were with the sons of the deceased, but on being threatened with death she told them that the keys were under the pillow of the deceased in a waistcoat. The keys were taken out of the waistcoat and Mst. Amir Khatoon was directed to help the culprits in opening the safes by identifying the keys which fitted the locks of the safes. The safes were in an adjoining room. One of the safes was opened and cash and ornaments were taken out. Some keys were found in that safe with which the upper portion of the other safe was similarly opened but the culprits did not succeed in opening the lower portion of the other safe in spite of all effort. Two trunks lying on the shelf were also opened and some gold rings were recovered from them. The culprits then left the house carrying away two bundles of silver ornaments and three bundles of gold ornaments. While going away they put Mst. Amir Khatoon on a cot under a blanket and gagged her and bandaged her eyes.
8. When the gang reached the pucca road Baggoo asked for his share, he being, as already stated, a resident of Uch Sharif, and he was given rupees ten and silver ornaments weighing about six seers.
9. The remaining four accused went to the house of Mulazim Hussain and from thence to Ghaui Goth, from where they engaged the tonga of Muhammad Ali P. W. And went to Liaquatpur. There, from the shop of Muhammad Iqbal P. W. Mulazim Hussain purchased a bag in which the bundles containing gold and silver ornaments were placed. There are further details given in the statement of Muhammad Anwar to which it is not necessary to refer.
10. As regards recoveries, it has already been stated that from the house of Mulazim Hussain appellant silver ornaments were recovered on the 25th of January 1958. On the 17th of February 1.958, two bed sheets and one laukar, that is, a kind of blanket, had been recovered at the instance of Mulazim Hussain from his house by Uch Sharif Police. On the 2nd of February 1958, a pair of shoes belonging to the deceased was recovered from the person of Mulazim Hussain appellant. On the 1st of February 1958, Assistant Sub-Inspector of Police Rana Faiz Muhammad recovered from the shop of Sheikh Noor Ali (P. W. 40) sixteen gold patris weighing about sixty tolas. These patris had been sold to Sheikh Noor Ali by Jaffar Shah absconder and the entry of this sale had been attested as a witness by Mulazim Hussain appellant. From Niamat Ali had been recovered two gold finger rings and four gold poppas, that is, nose rings. It is not necessary to refer to the recovery from Baggoo whose case we are not considering.
11. Mst. Amir Khatoon had died before the case was heard by the Sessions Judge, but she had appeared as a witness before the Committing Magistrate and had been cross-examined and this statement was treated as evidence in the case. Her version was in agreement with the story put forward by the approver. She had been awakened by an abuse uttered by her husband. She asked her husband as to what was the matter but instead of receiving a reply from him she was thrown down the cot and her eyes were bandaged. She heard some gurgling sounds, then these sounds stopped, her bandage was untied, and she was called upon by five persons who were there in the room to give information as to where the keys were. She replied, in the first instance, that the keys were with the sons of the deceased, but under threat of voilence she told the culprits that they were lying under the pillow of her husband in a waistcoat. She had seen one of the culprits on the chest of the deceased. She had heard a gurgling sound and had asked them whether her husband was still alive and the reply of the culprits was an abuse for the deceased. She was then forced to help the culprits in opening the safes. She told them the numbers on keys tallied with the numbers on the locks. With her help the safes were opened except that the lower portion of one safe could not be opened in spite of effort. There was a lamp burning in the room. She had had sufficient opportunity of looking carefully at the faces of the culprits particularly when they were taking rest after making an effort to open the lower portion of the second safe. They had been smoking and eating pista badam. She stated in Court the description of the culprits and even gave their ages.
12. There had been an identification parade in Rahim Yar Khan District Jail on the 6th of February 1958, wherein she bad successfully picked out all three accused.
13. Habib Ullah, a hotel owner of Ahmadpur East, had stated that Mulazim Hussain appellant and Jaffar Shah absconder were known to him and had taken their midday meals at his hotel along with two others while on their way to Uch Sharif.
14. Muhammad Ali, tonga driver, stated that he had been engaged by Mulazim Hussain for taking him and his companions from Ghani Goth to Liaquatpur and that the party had bundles under their blankets and their faces were muffled.
15. Evidence was led as against Mulazim Hussain of his absence from duty from the 21st of December 1957 to the 25th of December 1,957. As already stated, he was a foot-constable posted at the Police Lines, Rahim Yar Khan, in charge of a police guard consisting of four other foot-constables. On the 26th of December 1957, Habib Ullah, a Head Constable, was posted as in charge of the guard in place of Mulazim Hussain appellant, and he found that Mulazim Hussain was absent from duty. On inquiry from the members of the police guard he was told that he had been absent for five or six days. He then made a report to Sub-Inspector Awal Khan who held an inquiry into the matter and submitted his report to the Superintendent of Police, Rahim Yar Khan on the 2nd February 1958.
16. Mulazim Hussain appellant when questioned as to why he had been involved in the case said it was due to the enmity of Hafiz Najmuddin, Deputy Superintendent of Police, whose brother Bashir Ahmad had been sent up for trial by Murad Ali Shah Inspector who was father-in-law of Mulazim Hussain. Niamat Ali respondent states that he had illicit connection with the wife of a brother of Muhammad Anwar approver and also the father of Muhammad Anwar owed him a debt.
17. The Sessions Judge was impressed with the evidence of the approver who struck him as "perhaps better" than an ordinary approver. He found ample corroboration of the statement of the approver in the other evidence which was produced. He found no reason to discredit any of the recoveries or the statement of Mst. Amir Khatoon. As against Mulazim Hussain appellant he attached importance to his absence from the 21st of December to 25th December 1957 from duty.
18. The learned Judges of the High Court did not accept that Mst. Amir Khatoon had seen the culprits so clearly as to be able to identify them. They were of the opinion, mainly having regard to that fact that some ornaments were left by the culprits lying scattered in the room, that there was no light in the room at the time of the commission of the offence. They did not accept the identification parade holding that the accused had probably been shown to Mst. Amir Khatoon at Uch Sharif. So far as Mulazim Hussain appellant is concerned, they found that there was evidence clearly connecting him with the offence, and therefore they dismissed his appeal. So far as Niamat Ali and Baggoo are concerned, in the view that the learned Judges took of the statement of Mst. Amir Khatoon they were left only with the recoveries as a corroboration of the statement of the approver, and they were not satisfied with the evidence relating to these recoveries. On this ground they accepted the appeal of Baggoo and Niamat Ali.
19. We will first consider the value of the statement of Mst. Amir Khatoon, a statement, which if believed, may be sufficient by itself for bringing home the charge to Mulazim Hussain appellant as well as Niamat Ali respondent. The learned Judges of the High Court rejected the statement of Mst.
20. Amir Khatoon as to the identity of the culprits mainly on the ground that there could not be any light in the room where the safes were broken open for had there been light the culprits would not have left behind gold ornaments scattered in the room. We are constrained to disagree with the learned Judges on the question of the presence of light. We will presently deal with the main ground of their decision, but we may, in the first place, point out that there were a number of facts which the learned Judges did not take into consideration. For doing what the dacoits did in the house of the deceased it was necessary that there should be some light. Even the throttling of the deceased considering the various acts connected therewith would be difficult to achieve in pitch darkness. But in any case the safes could not be opened without light. Kist. Amir Khatoon has stated that the numbers of the keys tallied with the numbers of locks and it was in this way that the keys needed for opening the different locks had been identified. The learned Judges of the High Court have not rejected this part of the statement of Mst. Khatoon and there did not appear any reason for rejecting it. It could have been suggested that the culprits might have lased a torch or a candle or matches but it cannot be accepted that the safes were opened without any light whatsoever. Even the fact that the eyes of Mst. Amir Khatoon were bandaged points to there having been some light by which she could identify the culprits for otherwise there would be no need to put a bandage on her eyes. The culprits had been smoking and they had been eating pista badam, and this too points to the absence of darkness. A point of importance is that Mst. Amir Khatoon has stated in Court the description of culprits and has even given their ages. Although she had been cross--examined at length, no suggestion was made to her during the cross- examination that she was giving the description of ages of the culprits for the first time in Court and had not done so before. She had been cross-examined even with respect to her statement before the police. From the fact that no such sugges--tion had been made to her it is not improper therefore to infer that this was not the position taken up by the defence. If she was able to give the description and the ages of the culprits she must have seen the culprits in ample light and for a sufficiently long time. As regards the argument that even gold ornaments were found lying scattered in the room where the safes were, it has to be noted in the first place that the only person who says gold too was lying scattered on the ground is Mst. Amir Khatoon. Both Mehar Ali, her step- son, and Farid Bakhsh, her father, deny that there were any gold ornaments lying scattered in the room. Mst. Amir Khatoon herself has only said that there were some cloth bags (potlis) containing gold ornaments lying scattered in the room. Mst. Amir Khatoon does not say that she had opened the potlis and had seen the gold in them. She is not the person who had recovered those potlis from the spot. So, it may be only a guess by Mst. Amir Khatoon that they con--tained gold ornaments, a guess which she may be inclined to make because it was her step-son who had removed those potlis and who does not admit that there were any gold ornaments in them. In any case even if the potlis in fact contained gold the dacoits would not be able to know this because there were, as appears from the statement of Farid Bakhsh, potlis containing gold as well as silver.
21. That there was a good deal of silver which the culprits were unable to carry away is obvious. They carried it away in maunds and they could not carry away the whole of it. They must have been aware of the potlis for they would, as already observed, have some kind of light, a torch, candle, or matches, if they were able to open the safes. The fact that they did not carry away a potli or two with respect to which they did not know that it necessarily contained gold is not therefore of any great significance.
22. The learned Judges rejected the identification parade on the ground that suspects were being shown to Mst. Amir Khatoon from time to time by the Uch Sharif Police at Uch Sharif and therefore it was difficult for them to assume that the three accused had not been shown to her. We are unable to accept this con--clusion for more than one reason. So far as Niamat Ali respondent is concerned, he was never brought to Uch Sharif before the identification parade which took place on the 6th of February 1958. Mst. Amir Khatoon, according to what she stated before the committing Magistrate, had gone to Rahim Yar Khan only on the 6th and had returned the same day. Although she had died at the time of the trial her father who had accom--panied her to Rahim Yar Khan on the 6th of February had been examined as a witness. No question was put to him to show that she had been brought to Rabim Yar Khan before the 6th February. The statement which she made before the Committing Magistrate as to her having gone to Rahim Yar Khan on the 6th only she had made during the cross-examination. The Sub---Inspector of Police had made a statement which there is no reason to doubt that he had sent for Mst. Amir Khatoon on the 4th of February. So far as Niamat Ali respondent is concerned, it was not his own case before the Sessions Judge that he had been shown to Mst. Amir Khatoon at Uch Sharif. What he said was that he had been shown to Mst. Amir Khatoon for three days continuously in Rahim Yar Khan Police Station and also on the day on which the identification prade was held. The statement that he had been shown at Rahtm Yar Khan for three continuous days before identification is falsified by the record and the statement that he was shown on the same day is not supported by anything on the record.
23. Mulazim Hussain and Baggoo did state they had been shown to Mst. Amir Khatoon at Uch Sharif, and the learned Judges of the High Court, as already stated, inferred from the fact that suspects were shown to Mst. Amir Khatoon from time to time, and that Mulazim Hussain and Baggoo too should have been shown. We are unable to agree that because suspects were being shown to Mst.
24. Amir Khatoon (and it rather shows her truthful--ness that she went on rejecting all of them) from time to time for ascertaining whether any of them was involved in the dacoity it follows that these two should also have been shown. There was nothing improper in showing suspects to Mst. Amir Khatoon for ascertaining whether any of them was amongst the culprit. But with respect to Mulazim Hussain and Baggoo it was already known that they were the culprits and there would have to be an identification parade with respect to them. It would have been highly improper for the police to show them to Mst. Amir Khatoon. We are for all these reasons inclined to accept the evidence of Mst. Amir Khatoon.
25. So far as Mulazim Hussain is concerned, there is even apart from the statement of Mst. Amir Khatoon clear evidence pointing to his guilt and which certainly does constitute very good corro-- boration of the statement of the approver. A good deal of property which is proved to have been taken away in the dacoity have been recovered from him. Even a pair of shoes belonging to the deceased had been recovered from his person. His absence from duty is a circumstance of importance considering that he has no explanation to offer for his absence. It is proved by the statements of Awal Khan, Sub-Inspector, and Habib Ullah, Head Constable, that he was absent from duty from the 21st to 25th December 1957, when the fact was discovered. At that time nobody was connecting him with this dacoity. It is significant too that he offered to produce the property which was the subject of this dacoity when he was being interrogated with respect to the case of theft of rifles.
26. The defence of Mulazim Hussain was that Hafiz Najmuddin Deputy Superintendent of police was inimical to him because a brother of Hafiz Najmuddin was sent up for trial by the father in-law of Mulazim Hussain appellant. Hafiz Najmuddin denied it. And there is nothing on record to prove it.
27. Even so far as Niamat Ali is concerned, there exists evidence corroborating the statement of the approver. From him were recovered two finger rings and four nose rings (poppas) which have been identified as belonging to the deceased. At the same time, a pair of shoes was recovered from the spot with respect to which evidence was led that it belonged to him. Muhammad Shafi, a shoes-maker, deposed that he had sold that pair of shoes to Niamat Ali. This evidence is of course, not of any great value, but the evidence relating to the recovery of rings is sufficient corroboration of the statement of the approver. The learned Judges acquitted Niamat Ali because they did not accept the evidence of this recovery. The witnesses of the recovery are Malik Feroz Din (P. W. 34), Sher Ali Baig (P. W. 42) and Ghulam Nabi, Sub-Inspector. The statement of Malik Feroz Din was rejected on the ground that he had appeared as a prosecution witness against a brother of Niamat Ali and he had admitted his appearance as a recovery witness in other cases. On reference to the record we find that this witness, who was a Municipal Commissioner till the Municipal Committee was suspended, was only a recovery witness in the case against the brother of Niamat Ali who had murdered his own mother. The case related to the mohallah of the witness. The witness had admitted having appeared only in one other case as a recovery witness. We do not think sufficient reason existed for rejecting the evidence of this witness. The other recovery witness is Sher Ali Baig. The learned Judges simply said that as he was a retired police officer who did not belong to the locality they did not regard it safe to accept his testimony. While the learned Judges were not satisfied with the evidence of the witnesses of the recovery the main reason why they rejected the recovery was that Muhammad Anwar approver when he led to the recovery of six gold rings from his own house had not stated that he had given two rings to Niamat Ali respondent. This requires some explanation. According to the statement of the approver in Court he had taken eight gold rings from a trunk at the time when the dacoity was committed and had given two of them to Niamat Ali. Six gold rings had been recovered from Muhammad Anwar on the 27th January 1958, when he was arrested and the recovery from Niamat Ali was made on the 18th February 1956. The learned Judges were of the opinion that if two gold rings had in fact been given by Muhammad Anwar to Niamat Ali he should have mentioned this fact when he produced six gold rings. We do not think that the fact that Muhammad Anwar approver did not inform the police as to his having given two gold rings to Niamat Ali on the day when the recovery was made from him in any way weakens the evidence of recovery as against Niamat Ali. When recovery was made from Muhammad Anwar he was not an approver and at that time there was no reason why he should give information as against his co-accused. Even if he did give information as against his co- accused. Even if he did give information that he had given two rings to Niamat Ali, that would not lead to the recovery for he need not know the fact that Niamat Ali had buried the nose rings or the place where they were buried. A mere search of the house of Niamat Ali for two rings without any knowledge as to where they were buried may have been useless. It is only when Niamat Ali was prepared to give information that the recovery was effected. Niamat Ali had stated that he had been involved because he was suspected of a liaison with the wife of a brother of Muhammad Anwar approver. Even the name of that brother was not disclosed. When Muhammad Anwar was cross-examined by counsel for Niamat Ali the suggestion made was that Niamat Ali had an illicit connection with "some female member of his house. The suggestion was denied.
28. We find that there is no good ground for rejecting the state--ment of Mst. Amir Khatoon. At the same time, we find sufficient corroboration of the statement of the approver apart from the statement of Mst. Amir Khatoon.
29. In view of what has been stated above, the appeal of Mulazim Hussain appellant is dismissed, while the appeal of Mehar Ali complainant as against Niamat Ali respondent is accepted. The acquittal of Niamat Ali by the High Court is set aside, he is convicted under sections 302/ 149, 460 and 395 of the Pakistan Penal Code. The sentence of death under section 302/ 149 and the sentences of transportation for life under sections 395 and 460, P. P. C. Imposed by the Sessions Judge are restored. The sentences of transportation will not however be executed in view of the imposition of the sentence of death.
30. Appeal No. 30 dismissed.
31. Appeal No. 31 accepted.