The first informant in this case, one Muhammad Yaqoob is the owner of a shop in Chak No. 3, Taluka Sanghar, where he used to keep a number of bicycles for the purpose of hiring them out. It does not transpire to the evidence as to what the distance was from this shop to Sanghar but in the circumstances of the case it does not really matter. It is the case of the prosecution that on the 26th of October 1968 the Headmistress of the Middle School for Girls in Chak No. 3 requested the first informant to go to Sanghar and bring some eatable articles from there as she intended to hold some function in the school upon the next day. Accordingly at about 5.00 p.m. The first informant left for Sanghar where he purchased the articles, which he had been instructed to do, and also some others which he wanted for himself and was returning to his own place when, at a distance of about three furlongs from Sanghar, two persons suddenly came out from the side of the road and one of these people gave the first informant blows with a ghobhata on his arm on account of which he fell down from the bicycle. The other person also gave him blows with a Ghobhata but upon his back and two then robbed him of some twenty rupees that he was carrying and the cycle as well as a lighter which he had in his pocket and the articles which he had purchased at Sanghar; these articles were some potatoes and flour which he had purchased for the Headmistress and a pair of rubber paddles and twelve rubbers of brakes which presumably he wanted for his own use as the owner of cycles which he was hiring out as a matter of business.
According to the version which he gives in his first information report he then started running and came upon two persons, namely, one Bashir and another whose name is not stated but who is described as the brother of that Bashir and to these persons he narrated the facts. The first information report also states that he had purchased the bicycle from somebody in Chak No. 2 about 12 years before the incident but he says that he does not know the name of that person but would be able to produce him. The first informant then went back to Sanghar and lodged a first information report which was recorded at 8-15 p.m. By Sawan Khan then S. H. O. At Sanghar. The S. H. O. Prepared a memorandum of the injuries on the person of first informant whom he sent to the hospital for examination, treatment and certificate. On the next day he inspected the wardat and prepared a mashirnama of the same but the only thing that is remarkable about the warder is that there appear to be some footprints of two persons in slippers and wheel marks of a bicycle. Some stray potatoes and flour was also discovered. He then examined certain witnesses among whom is mentioned the Bashir I have spoken of as being referred to in the first information report as also Mataro; regard being had to the fact that this Mataro is a foot tracker one may assume; though it is not expressly so stated; that the witness was probably shown the foot-prints of the culprits on the scene.
2. On the 13th of December 1968 prosecution witness Shah Muhammad who was then the A. S. I. Of the Sanghar Police Station alongwith others who too belonged to the police force and two mashits Moula Bux and Pir Bux, of whom the former has been examined as a witness at the trial, went on what is known as a nakabandi, that is a kind of patrol during the night both for the purpose of prevention of crime and the possible capture of people already wanted for criminal offences. At about 11-00 p.m. That night the party divided itself into two and the party which included the Assistant Sub-inspector Shah Muhammad found at about 1-30 a.m. Two persons coming riding on a bicycle whom they halted and, being suspicious of them, arrested them. These two persons are the present appellant Gulistan and one Rahim Khan who also was subsequently tried with the appellant. In the course of the next few days an identification, parade was held in which the first informant was able to pick out the two persons arrested from amongst six assembled for that purpose as he was also able to pick out the bicycle upon which they were alleged to be riding from amongst five which were collected for the purpose of the identification test.
3. The appellant and Rahim Khan were then sent up to the Court of a Magistrate from where they were committed to the Court of Sessions on a charge under section 394/397 of the Pakistan Penal Code and eventually convicted by the learned Additional Sessions Judge of an offence under section 394 and sentenced to three years' rigorous imprisonment. The appellant appealed to this Court and was released on bail, though he had apparently served out about six weeks of his sentence by the time that he seas released the other convict has not appealed.
4. Now the evidence upon which the prosecution relied for the purpose of the conviction was the evidence of the first informant Muhammad Yaqoob, in that he said that the persons in Court were the persons who actually robbed him, with such corroboration as the identification test might afford, the fact that a bicycle identified by the first informant as being the stolen bicycle was recovered and finally the evidence of the foot-tracker Mataro who said that the foot-prints which he saw at the wardat were those of the two accused persons and he had been able to pick them out from the foot-prints of six persons in an identification test. This last piece of evidence the learned Judge has not relied upon and, in my view, quite rightly, the principal reason which appealed to him being that the foot prints were shod foot-prints that is to say that they were not of naked feet but of slippers and that after ail slippers can fit different persons. Whether I should have on my own part being willing to accept even evidence as to naked foot-prints need not be discussed since that is not apiece of evidence in this case; suffice to say that this piece of evidence appealed neither to the learned trial Judge nor does it appeal to me and I, therefore, do not propose to consider it any further.
5. Now the first piece of evidence against the appellant is the oral testimony of Muhammad Yaqoob and it is true of course that as the victim of the crime, the occurrence of which need not be seriously doubted, and in the absence of any hostility towards the appellant he should be regarded both as a natural witness and one without any bias towards implication. Having said that much in- his favour, one has said all that can be said for him. It is not his case that the appellant was known to him before and the only occasion, therefore, he had of seeing the culprits was during the brief encounter in which he received some blows and the bicycle was stolen. Now the story of the blows also is considerably exaggerated. He himself says that he was given as many as 8 or 10 blows but says that there were only two which left visible marks. So far as the medical evidence is concerned the doctor was able to see only one abrasion J of an inch circular on t e left wrist which could be caused by a blunt weapon. To that extent of course it is consistent with the story of the first informant, but not necessarily a very great piece of corroboration, inasmuch as the Injury was trivial and could well have been sustained in the ordinary way in the normal course of life. It might be worth while mentioning here that the charge under section 397 was based upon the carrying of a hatchet. Which is mentioned in the charge, but I am quite unable to see where the learned Magistrate who framed the charge got this from, as the first informant does not talk of a hatchet either in the first information report or in his deposition.
6. The first information report gives no description of the culprits beyond saying that they were of a black complexion but in his deposition in court the first informant describes them as being of wheat colour. Obviously what he said in Court must have tallied with the description of the accused persons because, if it did not, I would expect that the learned Judge would have made a remark upon that. An identification test no doubt took place but in the nature of things it was necessarily belated because the present appellant was not arrested until much later and the identification test, therefore, is of a date some 7 weeks later than the incident. Regard being had to the fact that the first informant was identifying a person whom he had seen only once and for a few brief moments and, without necessarily attributing any dishonesty to the first informant, this would not in my mind be a secure enough basis for the belief that he had correctly identified the culprits. It is also to be remembered that the proportion of dummies in the identification test left something to be desired. There were two persons who were alleged to lave committed the crime and with them only four others were mixed and, while it is not possible to lay down any fixed proportion of the dummies to the suspects, naturally the larger the number of dummies the better the value of the identification test. In a number of cases the proportion of two to one which is the proportion in the present case and even higher proportions have not been held to be enough.
7. There is besides the fact that according to the first information report with which the first informant was confronted in the Court he met two persons immediately after the crime, namely, Bashir and his brother. These two persons were admittedly examined by the police during the investigation but neither has been produced in Court. This is also a fact there which counts against the prosecution though I do not regard it as a very serious factor inasmuch as it is not the case of the first informant-- and indeed it could not be his case-that he gave any names to Bashir and his brother. The fact remains, however, that Bashir could have said; if examined, that some kind of a description was given to him but he has not been examined nor has his brother.
8. Upon this state of the ocular testimony learned counsel for the State frankly conceded that he would not be able to support the conviction upon the basis of the ocular testimony but invited my attention to the fact that the bicycle had been recovered and identified by the first informant, arguing that the conviction could then be based, by reason of illustration (a) to section 114 of the Evidence Act though of course in that case the conviction would have to be under section 411 of the Pakistan Penal Code and not under section 392 or section 394. Now there are several difficulties in the way of accepting this argument also. To start with the bicycle is not described in the first information report at all although the first informant has in the course of his deposition said that there was some welding done in the frame of the bicycle and the bicycle recovered is shown to have some welding upon the right hand side of the handle. It will be seen that the first informant merely spoke of the frame of the bicycle and, in the case of a bicycle which even according to the prosecution was about twelve years old, it would be remarkable indeed if there was no evidence of repair or welding upon it. The frame number of the bicycle is not mentioned in the F. I. R. But for this the first informant could hardly to blamed; it seems to me quite unlikely that when a bicycle is stolen the owner should immediately there and then be We to give the number of the bicycle frame. But regard being had to the fact that the first informant was not merely the owner of the bicycle in the sense in which an ordinary person has a bicycle for his personal use but was the owner of a shop in which there were a number of bicycles one would expect that he would have some note or record somewhere showing which bicycle had which number. Even though, therefore, in the first information report itself there was no number mentioned one should have been able to expect from the rust informant at a later stage during the investigation evidence of what that number was. It is true of course, as it turns out, the bicycle actually recovered had its number entirely obliterated and that therefore, even if there was a number it would not have been of much use it, this case. The bicycle, however, was recovered some seven weeks after the incident and not until then would the police or the first informant know that the number had been obliterated and yet there is nothing whatever to indicate that during the investigation any effort was made to find the number nor does the first informant in his deposition say that he had the number in his records.
9. It is also remarkable that upon a nakabandi held some seven weeks after the incident the bicycle should be found in the possession of the same persons who according to the first informant actually robbed him of it in the first instance. In any case the presumption provided for in illustration (a) to section 114 of the Evidence Act is one which allows a Court to presume the existence of certain facts; it lays no duty upon the court to make any such presumption. Naturally the period of time which has passed between the theft and the recovery, the nature of the goods in question the possibility of their changing hands and factors of this kind would be the criteria by which a Court would or would not make the presumption under section 114. Regard being had both to the unsatisfactory nature of the identification of the bicycle and the period of time which has passed between the theft and the recovery I do not think it would be safe to has a conviction upon this presumption alone.
10. In ail the circumstances of the case I have, therefore, come to I the conclusion that the conviction in this case cannot be sustained and I, therefore, allow this appeal and set aside the conviction and sentence of the appellant. He is on bail and his bail bonds will be cancelled.