WASEEM LAW ASSOCIATES:
[1967] SUPREME COURT
Have operated over such an extensive area ranging from Feni in Noakhali District to Narayanganj in Dacca District or for such a prolonged period of ten years. The possibility also of Ramzan and Jabbar joining hands was so remote that it would indeed be a miracle that two persons so bitterly opposed to each other would join together for the commission of dacoities. At any rate, even if it is accepted that such a gang came into existence then, after Ramzan and his sons Chand Mia and Lal Mia, and his stepbrother Shah Jehan were actually arrested and prosecuted for the murder of Jabbar, one of the essential elements of a gang, namely, continuity, was clearly broken. The same gang could not and did not subsist after that.
It is next urged that the evidence of the approvers should be totally discarded, for, they are deliberate liars and procured witnesses. Their evidence is not only tutored but is extremely contradictory and discrepant. So far as P. W. 1 Nidhu is concerned, although he was shown as arrested in this gang case on 15-1-52 and produced for recording his confession on 16-1-52, it has transpired in evidence that he was arrested much earlier for assaulting Daloo, the appellant in Cr. A. No. 21-D of 1963. The other two approvers, namely, Surat Ali (P. W. 2) and Kali Mohan (P. W. 3), were arrested on 30-8-51 and 8-11-51 respectively, but were not produced for recording their confessions until 1-9-51 and 20-11-51 respectively. This, it is suggested, clearly shows that the prosecution had enough time to tutor each one of them. According to the defence the approvers were all along also under the control of the prosecution, for, they actually received regular financial help and support from the police and the Government throughout the period of the trial.
A great deal of comment has also been made on the fact that none of the approvers implicated Ramzan, his sons and step-brother in their confessional statements, although they brought them in at the time of giving evidence in Court several years later. Learned counsel for the defence has also criticised the evidence of association, both specific and general, as being of an extremely unsatisfactory character. According to him, implication at such a belated stage merely on such association evidence would be wholly unsafe, unless such evidence is supported by contempo-raneous identification of the participants of the dacoities deposed to by those witnesses or by recoveries made from the persons implicated or at their instance.
There is a great deal of force in these general contentions. As we have already indicated earlier, the need for caution in a case of this nature cannot be over-emphasised. The approvers themselves, it cannot be disputed, have been seriously contra-dicted by their confessional statements. This is not a case of mere omission. n. They not only did not implicate Ramzan, his two sons and his stepbrother as members of the gang gang in their confessional statements but, in fact, fact, Nidhu (P. W. 1) therein clearly stated that the "leader of that gang was Jabbar of Kalipur. He is dead. Jabbar led that gang for 5/6 years. Thereafter Akel Ali became the leader of the gang. We all acknowledged him as leader." Similarly P. W. 2 stated that "Lalu Mistry, Chand Mia, Sona and Akel Ali upon consultation, took us in their party to commit dacoity. We were 150 persons in that gang." So far as Káli Mohan (P. W. 3) is concerned he associates himself with Kala, the appellant in Cr. A. No. 56-D of 1963 and his brother Ansar, the appellant in Cr. A. No. 30-D of 1963. He does not mention either Ramzan or his relations or even Akel Ali. In fact, his confessional statements seem to indicate that he belonged to a much smaller and a different gang consisting of 15/20 persons.
An approver is always an unreliable person, for he ist betraying his erstwhile associates. His evidence itself needs corroboration not only with regard to the offences deposed to by him but also with regard to the complicity of the persons sought to be implicated by him. We are unable, therefore, to agree with the learned counsel for the State that if an approver has been o corroborated with regard to the details of an incident described by him by independent reliable evidence then that should by itself be sufficient also to accept that all those persons whom he has implicated in that incident must also have taken part therein. The poss possibility of the approver falsely implicating his enemiesl must be carefully guarded against.
Keeping these features of the evidence in view we now proceed to the discussion of the individual cases.
(After dealing with each individual appeal the judgment proceeded)-
Before parting with this case, however, we cannot help observing that we have been compelled to enter upon an exami-nation of the evidence in this case, as neither the trial Court nor the High Court had followed any consistent principle or examined the evidence with the care that was expected in a case of this magnitude. In some cases the accused were held to have partici-pated in a dacoity when they were clearly under arrest and could not have so participated. In some cases the evidence has been misread and in several cases the Courts below have clearly become confused between different accused bearing similar names. The High Court, which was the final Court of facts, again unfortu-nately did not examine the evidence at all in respect of a large number of the appellants before it purely on the ground that their appeals had been pressed only on the ground of sentence. In a criminal appeal, whether the appeal is pressed or not, it is the duty of the High Court to examine the evidence on the record.
The findings of the Courts below based purely upon association evidence cannot also, in our view, be considered to have been arrived at upon sound principles or principles con-sistent with the safe dispensation of criminal justice even in a case of this nature.
In view of the above we have been compelled to re-examine the evidence ourselves and upon such examination we have come to the conclusion that in a large number of cases the concurrent findings of the Courts below are clearly unsupportable.
In a case of this magnitude, which was made more compli-cated by reason of a number of the accused persons and witnesses bearing the same names the chances of confusion had to be guarded against but we regret to find that the Courts below have failed to exercise that degree of care and caution in analysing the evidence which the nature of the case demanded. We are, in the circumstances, also unable to endorse the certificate which the High Court has granted to the trial Court.
Α. Η. Order accordingly.
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PLD 1967 Supreme Court 559
Present: S. A. Rahman, Fazle-Akbar and Hamoodur Rahman, JJ
ALLAH RAKHA-Appellant
versus
SIRAJ DIN AND OTHERS-Respondents
Civil Appeal No. 125 of 1965, decided on 7th September 1967.
(On appeal from the judgment and decree of the High Court of West Pakistan, Lahore, dated the 3rd February 1960, in R. F. A. No. 85 of 1952).
Civil Procedure Code (V of 1908), S. 11-(Res judicata)-Expression: "litigating under the same title" in S. 11-Doctrine of res judicata not attracted where a presumptive reversioner, in former suit, had sued under customary law, for a declaration that alienation by gift by mother of last male-holder was not binding on reversioners after such female's death and such suit was dismissed on ground that plaintiff had failed to prove his status as such reversioner, but, in later suit, after her death, sues for possession on basis of being an heir under Muhammadan Law by virtue of provisions of Punjab Muslim Personal Law (Shariat) Application Act (IX of 1948), S. 3.
The plaintiff, claiming to be a presumptive reversioner filed a suit against the mother of the last male-holder and her donees for a declaration that the purported gift by such mother as the holder of the life-estate under custom would, in no way, affect the rights of the reversioners after her death.
The suit was dismissed as the plaintiff had failed to establish his status as the presumptive heir.
Later, after the death of the life-estate holder, the same plaintiff filed a suit claiming the entire property as heir of the last male-holder under the Muslim Shariat Law, which had by then become applicable by the enactment of the Muslim Personal Law (Shariat) Application Act, 1948:
Held, that the title and status asserted by the plaintiff in the subsequent suit was necessarily different from and independent of, the title and status put forward by him in the earlier suit. The claim in the subsequent suit was based on his own individual right in the capacity of an heir which could not possibly have been included in the carlier suit tiled in the capacity of only a presumptive reversioner, The prior decision cannot, therefore, be rightly relied upon as being res judicata on the question of the plaintiff's title to the property as heir at law.
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