1. SALAHUDDYN AHMED, J.-This appeal is by special leave of this Court. Respondent No. 1 Baggoo along with his co-accused Niamat Ali had been acquitted by the then West Pakistan High Court of charges under sections 302/ 149, 395 and 460 of the Pakistan Penal Code. The appeal against Niamat Ali was allowed by a Full Bench of this Court on the 6th of December 1961, and he was convicted of the aforesaid charges and sentenced under section 302, read with section 149 of the Code to death and to sentences of transportation for life under sections 395 and 460 of the Code.
2. The notice of the appeal, however, could not be served on respondent Baggoo as his whereabouts were not known, and the appeal against him could: not, therefore, be heard. The notice has since been served, and he is now represented before us by Mufti Nazar Muhammad. Advocate.
3. The dacoity took place in the house of Sh. Noor Illahi deceas--ed, a Saraf of Uch Sharif, District Bahawalpur, between the night of the 23rd and the 24th of December 1957, in course of which Sh.
4. Noor lllahi was killed and a large number of ornaments stolen. Sh. Noor Illahi was about 65 years old and he lived with. His second third wife, 1'. W. Mst. Amir Khatoon aged about 16 or 17 years.
5. The prosecution case was that on the morning of the 24th of December 1 957, when the father of P.
6. W. Mst. Amir Khatoon came to the house of the deceased in pursuance of a previous appointment 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 P. W. Amir Khatoon responded and said that Noor Illahi had been murdered and she had beers lying tied up in her bed. Her father did not enter the house but immediately went to P. W.
7. Meher Ali, son of Noor Illahi't deceased and step-son of P. W. Mst. Amir Khatoon, and told him what he had seen. They both came to the house of the deceased and found the latter lying murdered on his cot. They went into the room where P. W. Mst. Amir Khatoon was and untied her. They found the safes of the deceased lying open and a good deal of property in the shape of cash and silver and gold ornaments missing. P. W. Meher Ali lodged a first information report at Uch Sharif Police station as a result of which investigation started and the statement of P. W. Mst. Amir Khatoon was recorded on the same day. Several suspects were brought to P. W. Mst. Amir Khatoon but they were all rejected, and for sometime the culprits remained untraced. Mulazim Hussain, who belonged to Uch Sharif, was posted as a foot-constable in the Police Lines, Rahimyar 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 in the District of Rahimyar Khan. In course of the inquiry that followed Mulazim Hussain was, discovered to have been absent from duty from the 21st to the 25th of December 1957, and he was accordingly, made to join the investigation of the rifles theft case as a suspect. Rahimyar Khan is at a distance of about 80 miles from Uch Sharif which is in Bahawalpur District. In the course of his interrogation Mulaz in Hussain furnished information regarding the present case, land led to the recovery from his house in Uch Sharif of considerable articles which had been stolen in the dacoity. Mulazim Hussain also gave information of the participation of respondent Baggoo, and led the police party towards Baggoo's house. Enroute Mulazim spotted Baggoo and pointed him out to the police party. Baggoo tried to escape but he was arrested and some silver ornaments Exhs. P. 39--46 (vide recovery memo. Exh. PK) were recovered from the folds of his loin cloth. The information supplied by Mulazim also led to the arrest of approver Muhammad Anwar on the 27th of January 1958 and co-accused Niamat Ali on the 29th of January 1958, by the Rahimyar Khan Police. The accused were handed over to the Uch Sharif Police on or about the 3rd of February 1958, and the latter made sonic recoveries from approver Muhammad Anwar, Mulazim Hussain and co-accused Niamat Ali. The accused were ultimately sent up for trial with the result that Mulazim, Baggoo and Niamat Ali were convicted by the Sessions Judge, Rahimyar Khan under sections 302/149, 396 and 400 of the Code. Of the two other accused Muhammad Anwar had turned approver and Jafar Shah had absconded.
8. The case against respondent Baggoo rests on the ocular evidence of P. W. Mst. Amir Khatoon, widow of the deceased, supported by the Test Identification Parade in which she identified the respondent, and the evidence of the approver as corroborated by the recovery of certain ornaments from the respondent.
9. P. W. Mst. Amir Khatoon was believed by the trial Court. The learned Judges of the High Court, however, chose to disbelieve her on the grounds that as the culprits had left behind certain `potlis' 'alleged to contain gold ornaments lying in the room, it showed that there was no light in the room to enable her to identify the culprits; that the evidence relating to the said recovery was not satisfactory; and that the respondent was probably shown to her prior to the Test Identification Parade.
10. A Full Bench of this Court has already rejected the reasons for disbelieving P. W. M.St. Amir Khatoon, and has relied on her. We are in full agreement with the appraisement of her evidence by the Full Bench. The manner in which the dacoity was committed left no room of doubt that there must have been light available to do the many things that the dacoits did in course of the dacoity including finding out the numbers of the key that tallied with the safe for the purpose of opening the safe. It has been particularly pointed out that if there indeed was no light why was it necessary to blindfold P. W. Mst. Amir Khatoon for some time and then to remove the bandage from her eyes in order to obtain her help to open the safes. It is also significant that although suspects after suspects were produced before her she kept on rejecting them until she appeared at the Test Identification Parade in the District Jail in Rahimyar Khan. Her evidence is amply corroborated by the recovery of the aforesaid stolen ornaments from the possession of the respondent at the time of his arrest.
11. The ornaments recovered from respondent Baggoo were identified by P. Ws. Muhammad Akbar and Meher Ali as the stolen articles. These ornaments were seized from the respondent by the police officers P. Ws. Hafiz Najamuddin, D. S. P., Rana Faiz Muhammad, A. S. I. And Hafiz Sultan Mahmood, District Inspector of Police and the seizure was witnessed by P. Ws. Moulvi Muhammad Ismail and Karam Ali. There is no reason to disbelieve these three police witnesses who all belonged to a different police station in a different district at the time. There is also no reason to disbelieve the two recovery witnesses P. Ws. 36 and 37. The witnesses are neither related to the deceased nor have any reason to bear any ill-will against the respondent. P. W. Moulvi Muhammad Ismail had once before appeared as a recovery witness in a theft case. P. W. Karam Ali denied that he generally appeared as a prosecution witnesses in police challans. He said he had appeared as a prosecution witness in the case of State v. Khushi Muhammad, under section 110 of the Code of Criminal Procedure, but stated in Court that he did not know anything about Khushi Muhammad.
12. These two witnesses of recovery could by no means be described as stock police witnesses.
13. As regards the Test Identification Parade it is indeed significant that although subsequently the respondent alleged that he had been shown to P. W. Mst. Amir Khatoon, no objection whatsoever was made by him before the Magistrate First Class, P. W. 2 Faiz Muhammad Khan, who held the Test Identification Parade. P. W. Mst. Amir Khatoon categorically denied that the accused were shown to her before the parade. P. W. 2 the Magistrate denied that any one of the accused had objected at the time of the parade that the accused had been shown to Mst. Amir Khatoon at Uch Sharif. The parade was held in the District Jail at Rahimyar Khan, where P. W. Mst. Amir Khatoon went only once to attend the parade.
14. We accordingly in full agreement with the Full Bench hold that the evidence of P. W. Mst. Amir Khatoon is reliable. In our opinion her evidence alone is sufficient to convict the respondent of the charges framed against him.
15. There is, however, the evidence of the approver corroborated not only by the aforesaid recovery but also the evidence of P. W. Mst. Amir Khatoon to prove the complicity and guilt of the respondent. The High Court relied on the approver's evidence regarding the conviction of Mulazim, having found that the recovery of the stolen articles from him fully corroborated the approver in regard to the participation of Mulazim. The Full Bench of this Court also relied on the approver's evidence for the conviction of both Mulazim and Niamat.
16. Respondent Baggoo denied the recovery of the ornaments from his possession and said that those ornaments were not his He said he was falsely implicated as he was suspected by P. W. 32 Sh.
17. Meher Ali, for having been in illicit intimacy with the latter's mother. P. W. Sh. Meher Ali was, however, never,: questioned about this intimacy. P. W. Mst. Amir Khatoon, too, was never asked about this. It is, therefore, legitimate to infer that this defence was an afterthought brought out for the first time in his statements recorded under section 342 of the Code of Criminal Procedure before the committing Court and the Sessions Court. It is significant to note that before the committing Court the respondents had said about his suspected illicit relations with P. W. Mst. Amir Khatoon, while before the Court of Sessions he said he was suspected by P. W. Meher Ali of illicit intimacy with the mother of P. W. Meher Ali, but could not say which mother.
18. We accordingly hold that the charges under sections 302/149, 395 and 460 of the Pakistan Penal Code have been proved against respondent Baggoo. We allow the appeal and set aside the order of acquittal passed in his favour by the High Court and convict. Him of charges under sections 302/149, 395 and 460 of the Code and sentence him udder all those sections to life imprisonment.