WASEEM LAW ASSOCIATES:
[1967] ALL PAKISTAN LEGAL DECISIONS
After the death of Jabbar the breach was again healed but two persons from Jabbar's group were appointed deputy leaders. The gang thereafter continued its depredations under the undisputed leadership of Ramzan and in the course of a period of about 10 years committed as many as 194 acts of vandalism which included dacoities, robberies, thefts and wagon lootings.
It is further alleged that since the members of this gang were notoriously desperate characters who appeared to be enjoying the support of the local Police, no one dared to oppose them or even to report against their nefarious activities to higher authorities. The gang's depredations thus gained momentum with each year until the Government was ultimately forced to take notice of the inefficiency of the local police and to depute a C. I. D. Inspector to enquire into this inordinate increase in dacoities, particularly in running trains. Things began to move thereafter. The first to be arrested was Kali Mohan (P. W. 3). He was arrested on the 30th of August 1951 at the Bhairab Railway Station but was taken to Narayanganj, where on the Ist of September 1951, he made a confessional statement before a Magistrate. The next to be arrested was Surat Ali (P. W. 2). He was arrested on the 8th of November 1951, in a village called Manikde with the help of the local Ansars and was taken to Dacca where he made a confessional statement from the 20th to the 26th of November 1951. On the 19th of December 1951, Kali Mohan made a further confession. Lastly Nidhu (P. W. 1) was arrested on the 15th of January 1952. He was produced the very next day before a Magistrate and he made a confession which was recorded from the 16th of January 1952, to the 23rd of January 1952. All these three subsequently also turned approvers. Four others, namely, Ahsan Ullah of Bhairab, Abdul Qadir of Kalipur, Suraj Mian of Kalipur and Abdur Razzaq of Bhairab, also gave evidence in this case as gave accomplices. In addition to their evidence the prosecution also examined some 2,000 other witnesses to establish the association, both general and specific, between the accused persons. Of these only 400 were witnesses who attempted to prove the specific association or participation of different members of the gang in specific occurrences alleged to have been committed by the gang. The rest were merely witnesses of general association who claimed to have seen them moving about in groups or often assembling in the houses of the leader and deputy leaders.
The defence, on the other hand, denied that there ever existed any such gang, as alleged by the prosecution, and maintained that the gang was the malicious invention of the Inspector, Criminal Intelligence Department, to cover up the inefficiency of the local police officials in detecting the large number of dacoities, robberies, burglaries, thefts and wagon breakings committed during this period. Indeed such incidents continued to take place within the jurisdictions of the Bhairab and neighbou during the pendency of this case and still went undetected. These neighbouring police stations even were all sporadic occurrences and had nothing whatsoever to do with any gang, for, no single gang could possibly operate over such a vast territory ranging over live districts.
Ramzan Ali further claimed that he and his sons were respectable businessmen of Bhairab owning considerable landed properties and houses at Bhairab Bazar. It was fantastic, therefore, to suggest that he or his sons could be associated with any gang of dacoits. He suggested that he, his two sons, his step-brother and his nephew had been falsely implicated at the instance of one 'Madhu Mian, a rival merchant. The possibility of the men of Bhairab and Kalipur joining hands as members of a gang was also said to be unlikely in view of the history of clashes and bitter feelings well-known to be prevailing between them. A large number of the members of the gang were also said to be so inimical inter se that it was difficult even to conceive of their joining together in committing such nefarious crimes. It was further contended that, in any event, even if ever there was such a gang, its continuation was interrupted after the murder of Jabbar in August 1946, and the arrest of Ramzan as an accused in that murder case. Although ultimately acquitted he remained in detention for about nine months during which period he contracted rheumatism and became an invalid and even according to the prosecution case itself he admittedly could take no further part in any dacoity committed after August 1946. He could not, therefore, have remained the leader of the gang after such incapacity.
As for the evidence of association, general or specific, this, it is argued, is of such a vague and indefinite character that no possible reliance can be placed upon it nor can the same be regarded as having corroborated the approvers' testimony.
The trial Court after hearing the case for a period extending over 836 days found this evidence reliable enough to convict all but one of the persons tried by it. Out of the 102 convicted only 100 appealed to the High Court. The High Court acquitted six and reduced the sentences of another six to the period of imprisonment already undergone, but maintained the convictions and sentences of the rest. 58 of them submitted petitions from Jail to this Court for special leave to appeal. Leave was granted on the 27th of April 1961, even though the petitions were barred by time, as the case appeared to raise some "novel features" which called for the examination of the evidence. During the pendency of the appeal in this Court two, namely, Ramzan and his son Chand Mian, have died, 41 have actually served out their sentences, and only 7 are still in Jail.
So far as those who are dead are concerned their appeals must be declared to have abated, but we shall have to deal with the appeals of all the others including even those who have been released affer serving out their sentences, for, in their cases the stigma of the conviction still adheres to them. With the assistance of the learned counsel on both sides we have carefully perused the judgments of the Courts below and have also examined a considerable portion of the relevant evidence. After doing so, we cannot help observing, that we are left with the impression that neither the High Court nor the trial Court had scrutinised the evidence of this enormous bulk and stereotyped nature with the care and caution that appeared to be necessary in a case of this magnitude or upon principles consistent with the safe dispensation of criminal justice. Before entering upon the examination of the evidence we, therefore, feel it necessary first to formulate the correct principles which the Courts should, in our opinion, follow in appreciating the evidence in cases of this nature.
Section 400 of the Pakistan Penal Code is in these terms:-
"Whoever, at any time after the passing of this Act, shall belong to a gang of persons associated for the purpose of habitually committing dacoity, shall be punished with transporta-tion for life, or with rigorous imprisonment for a term which may extend to ten years, and stall also be liable to fine."
It creates an offence of a very special character. The gist of the offence appears to be association for the habitual commission of dacoity. The offence thus lies in the agreement habitually to commit dacoity and not in the actual commission or attempted commission of dacoities. It is not necessary in order to get a conviction under this section that the evidence should be of the same quality as would be required to establish the commission of the dacoity itself, for, a person charged as belonging to a gang of dacoits need not actually participate in the commission of dacoities, although the evidence of actual participation would go a long way towards establishing both his association with the gang and the object of such association. Thus even if the evidence on the record is such as would have justified as trial upon a specific charge of dacoity the mere fact that there was no such charge or trial would not make that evidence inadmissible or unreliable in a case under section 400 of the Pakistan Penal Code.
The association and the purpose of the association may, of course, be proved either by direct evidence to the effect that the accused, or the accused and others, met and resolved to join together for the purpose of habitually committing dacoity or, in the absence of such direct evidence, it may even be established by proof of facts from which the association may reasonably be inferred. The evidence of the first kind, namely, direct evidence, it is manifest, can in such a case only come from a participant or an associate alone, for, it is unlikely that persons entering into an agreement to join together for the purpose of habitually committing dacoities would do so in the presence of strangers. It is for this reason that it has become the general practice in such cases to get this direct evidence through the mouths of accomplices who are made approvers by the tender of pardon. Such a person is, no doubt, a competent witness against an accused person and under section 133 3 of of the the Evidence Evid Act a conviction conviction upon the uncorro-borated testimony of such an approver may not even be illegal, but since under section 114, Illustration (b) of the said Act, the Court is to presume that an accomplice is unworthy of credit unless his testimony is corroborated in material particulars, the practice of the Courts in this Sub-Continent has been so consistent as to harden into a rule of law that the evidence of an accomplice, unless corroborated in material particulars by independent evidence, is not relied upon.
The extent and the nature of corroboration required may, no doubt, vary from witness to witness and from case to case, but as a rule it is not necessary that there should be corroboration in every particular, all that is necessary is that the corroboration must be such as to affect the accused by connecting or tending to connect him with the crime.
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