WASEEM LAW ASSOCIATES:
[19967] PLD 1967 Supreme Court 545
Present: S. A. Rahman, Hamoodur Rahman and
Muhammad Yaqub Ali, JJ
(Criminal Appeal No. 9-D of 1958)
(AND OTHER APPEALS FROM NO. 10-D TO 58-D or 1963)
RAMZAN ALI-Appellant
versus
THE STATE-Respondent
Criminal Appeals Nos. 9-D to 58-D of 1963, decided on 7th September 1967.
(On appeal from the judgment and order of the High Court of East Pakistan, Dacca, dated the 1st July 1960, in Criminal Appeals Nos. 343 and 366 of 1958).
(a) Constitution of Pakistan (1962), Art. 58(3)-Leave to appeal-Time-barred petitions preferred from jail-Leave granted by Supreme Court as cases appeared to raise some "novel features" calling for examination of evidence.
(b) Criminal Procedure Code (V of 1898), S. 423-Appeal of accused who has served out his sentence-Must be dealt with by Court as "stigma of conviction still attached to them".
(c) Penal Code (XLV of 1860), S. 400-Offence consists in "agreement habitually to commit dacoities"-Actual or attempted commission not necessary-Evidence to actual commission may serve to establish both association with gang and object of association-Such evidence admissible to prove association though no charge is framed in regard to commission of dacoity-Offence may be proved by direct evidence, that accused. met and resolved to join together for purpose of habitually committing dacoities or by proof of facts from which association may be reasonably inferred-Evidence of participants (approvers)-Evidence Act (I of 1872), S. 114, illus. (b) and S. 133-Rule of law that evidence of accomplice, unless corroborated in material particulars, is not relied upon-Corroboration in "every particular" not necessary-Evidence of "general and specific" association-Ipse dixit of witness, when and when not to be accepted-Association evidence-Safer to require some confirmation of such evidence-Nature of confirmatory evidence-Evidence to be scrutinised with care and caution-Quality counts not quantity.
ALL PAKISTAN LEGAL DECISIONS
(d) Penal Code (XLV of 1860), S. 400-(Belonging to a gang of dacoits)-"Belong" suggests continuity of association for a duration reasonably warranting inference that accused had identified himself with gang.
(e) Penal Code (XLV of 1860), S. 400-(Offence of belonging to gang of dacoits)-"Habitually" imports a sense of continuity, e.g. accused being concerned in a large number of dacoities in a comparatively short space of time.
(f) Penal Code (XLV of 1860), S. 400--(Offence of belonging to a gang of dacoits)-General evidence of bad character, though inadmissible as evidence of character, is admissible to prove "habit or association"-Previous acquittals in cases of dacoity may even be relevant [Evidence Act (1 of 1872), S. 54].
(g) Penal Code (XLV of 1860), S. 400-(Offence of belonging to a gang of dacoits) (Evidence)-Difficulties of investigating agencles no justification for relaxing rules relating to appreciation of evidence Too readily accepting ipse dixit of witness in gang cases disapproved-Evidence of association by itself may well be insufficient-[Dalilur Rahman Chowdhury and others v. The Crown Criminal Appeal No. 59 of 1954 ref.].
(h) Evidence Act (I of 1872), S. 133 read with Penal Code (XLV of 1860), S. 400-(Offence of belonging to a gang of dacoits)-Approvers and accomplices not ascribing certain incident to members of gang-Other evidence as to such incidents cannot be treated as affording corroboration to evidence of approvers or accomplices.
(i) Penal Code (XLV of 1860), S. 400-(Offence of belonging to gang of dacoits)-Evidence as to incidents relating to period prior to period of charge-To be excluded from consideration.
(j) Penal Code (XLV of 1860), S. 400-(Offence of belonging to gang of dacoits)-Dacoities never reported to Police by any F. I. R.-Cannot be taken into account as evidence of offence unless confirmed through extremely reliable independent evidence.
(k) Evidence Act (I of 1872), S. 133-Approver or accomplice not implicating certain persons in their confessional statements but naming such persons later in their evidence at trial-Omission, held, important, of which such persons were legitimately entitled to take advantage.
(1) Evidence Act (I of 1872), S. 133-Accomplice not implicat-ing himself in any incident relating to crime of being a member of gang of dacoits under S. 400, Penal Code (XLV of 1860)-Difficult to accept evidence of such accomplice.
(m) Evidence Act (I of 1872), S. 133 read with Penal Code (XLV of 1860), S. 400 and Criminal Procedure Code (V of 1898), S. 337-Accomplice, in regard to offence of being members of a gang of dacoits, produced as a witness at trial and not as an approver after tender of pardon under S. 337, Criminal Procedure Code (V of 1893)-Evidence of such accomplice looked upon with "great suspicion".
(n) Penal Code (XLV of 1860), S. 400-(Offence of being member of a gang of dacoits)-Evidence of "specific association" without there being any report made to any person of such association or without being supplemented by evidence as to some unusual behaviour of accused following such association-Evidence, held, of an "extremely weak nature" and by itself establishing nothing, unless there is some further confirmation.
(o) Evidence Act (I of 1872), S. 133 read with S. 114, illus. (b)-Approver "always an unreliable person"-Evidence requires corroboration with regard not only to offences deposed to but also to persons implicated.
(p) Constitution of Pakistan (1962), Art. 61-Supreme Court entered upon examination of evidence in criminal appeals from convictions under S. 400, Penal Code (XLV of 1860) (offence: Belonging to a gang of dacoits)-[Trial Court and High Court had "not followed any consistent principle or examined evidence with care"-Evidence had been "misread", confusion having risen due to different accused bearing similar names].
(q) Criminal Procedure Code (V of 1898), S. 423-Appeal pressed only on ground of sentence-Appellate Court duty bound to examine evidence on record.
Birendra Nath Chowdhury, Advocate Supreme Court instructed by S. M. Abbas Attorney for Appellants.
M. A. Rauf, Advocate Supreme Court instructed by A. W. Mallik Attorney for Respondent.
Dates of hearing: 31st October, 1st, 2nd, 3rd and 4th November 1966.
JUDGMENT
HAMOODUR RAUMAN, J. These 50 appeals arise out of the judgment and order of a Division Bench of the High Court of East Pakistan in what has been described as the Bhairab Gang Case. In this case some 103 persons were tried by the Sessions Judge of Mymensingh on a charge under section 400 of the Pakistan Penal Code for being members of a gang, along with a large number of other persons approximately numbering 192, allegedly formed for the purpose of habitually committing dacoities between April 1942 and April 1952, in an area extending over 5 districts of East Pakistan, namely, Mymensingh, Dacca, Tippera, Sylhet and Noakhali.
This gang was alleged to have been operating under the leadership of one Ramzan Ali alias Ramzan Shaikh, who was the appellant in Criminal Appeal No. 9-D of 1963, but has since died during the pendency of his appeal in this Court, with its headquarters located at Bhairab, the the place of residence of the said Ramzan Ali. The deputy leader of the gang was one Jabbar of Kalipur wh who, before April, 1942, had a separate gang of his own but in that year amalgamated with the gang of Ramzan Ali. They worked together till the beginning of 1946 when they fell out and a clash took place between the parties of Ramzan and Jabbar. The latter was killed in the course of this fight.
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