WASEEM LAW ASSOCIATES:
[1967] ALL PAKISTAN LEGAL DECISIONS
connect him with the crime. In other words, there must be corroboration not only of the commission of the crime alleged but also of the participation of each individual accused charged with the commission of that crime. The corroboration again need not be by direct evidence nor is it necessary that the corroborating evidence should itself be such as to be sufficient to form the basis of a conviction. It is sullicient if it establishes the existence of circumstances from which the connection of the accused with the crime can be reasonably inferred and supports the approver's evidence in such a substantial manner as to make it safe to be relied upon.
It is in order to provide such corroboration to the approver's evidence that the practice has grown up, in such cases, to lead evidence of, what has been called, association, general and specific The evidence of general association is usually of the type that certain persons, who were known as badmashes or bad characters in a locality, were often seen moving about together, meeting frequently at the houses of each other, making lavish purchases together or seeking amusement together. Such evidence can at best only lead to the inference that the persons so seen meeting together are associates or fellow-travellers, but it does not establish the purpose of the association. To do this is adduced evidence of specific association. This generally takes the form of witnesses testifying to having seen some members of the gang meeting at a particular place in groups under suspicious circumstances, proceeding in a particular direction or to a particular village, either immediately before or after a dacoity followed soon after by information of the dacoity itself.
Such evidence of association cannot, by its very nature, be of a very precise or definite character and it is, therefore, essential to bear in mind that it may not always be safe to rely only upon the ipse dixit of a witness of this kind unless he is of such a reliable character that neither his veracity nor his memory can be doubted or that his identification of the person or persons so seen by him is of such a nature that it can be implicitly relied upon. Even an honest witness deposing about such chance meetings or hasty observations after the lapse of several years may well make an honest mistake. Extra caution is all the more necessary, for, such type of witnesses are rarely forthcoming in cases of this nature. We, therefore, are of the view that it would be safer when assessing such association evidence to seek for some further confirmation of the oral testimony not only for fixing the identity of the person claimed to have been seen but also his participation in the particular dacoity. The circumstances which may normally be regarded as sufficient for furnishing such confirmation might well be:-
(1) that the witness had contemporaneously reported this fact to somebody else;
(2) that other witnesses also support the testimony;
(3) that in the information, if any, lodged with regard to a dacoity the person or persons named by the witness have been shown as accused persons;
(4) that the person so named was, in fact, arrested or challaned in that dacoity, and
(5) that some article looted in that dacoity was actually recovered from the person named or at his instance.
It is not possible to lay down any exhaustive enumeration of the circumstances which may be considered to be sufficient for this purpose but what we wish to impress is that it must not be lost sight of that evidence of such a nature must be scrutinised with care and caution in order to eliminate all chances of false implica-tion or even an honest mistake. It is the quality of the evidence and not the mere quantity thereof that counts.
It should also not be overlooked that the word used in the section is "belong" to a gang and, therefore, it is not suflicient to make a person a member of a gang if he is shown only to have participated in one or two isolated dacoities. This word involves the notion of continuity rather than of permanency and suggests that the connection should be of such a long duration as to reasonably warrant the inference that the accused persons had identified themselves as members of a gang.
The association, as already stated, to come within the mischief of this section must furthermore be for the purpose of habitually committing dacoity. The word "habitual" also imports a sense of continuity. It would appear, therefore, that generally speaking what the prosecution should endeavour in such cases to prove is that the accused or groups of them had been concerned in a large number of dacoities in a comparatively short space of time. In order to get a conviction under this section one has not to establish actual participation in the commission of dacoities but it is enough if there is some active participation or employment for the purposes of the crime, such as scouting, collecting information, giving warning of approaching police or in some other wayl facilitating the commission of the crime.
Normally in such a case general evidence of bad character in the shape of commission of other crimes or conviction for other crimes, such as thefts, burglaries, etc., although inadmissible as evidence of character, may be admissible to prove habit or association. In this case even previous acquittals in cases of dacoity or for being in possession of goods stolen in a dacoity may be relevant for establishing the association of the accused with the gang.
We are not unmindful of the fact that by reason of the riverine nature of many of the districts of the Province of East Pakistan the incidence of dacoity in that Province is unusually high and that more often than not such crimes remain undetected due largely to the failure of the witnesses to identify the the dacoits but at the same time we cannot agree that even these difficulties can furnish any justification for the non-observance of the rules G relating to appreciation of evidence in criminal cases or that the same should in any way be relaxed. These rules have been designed to secure for accused persons the assurance of a fair and impartial trial and practical difficulties notwithstanding the standards which have been laid down for the safe dispensation of criminal justice, cannot be altered or deviated from to meet the difficulties of the investigating agencies in the Province. In spite, therefore, of the difficulties pointed out to us and to which we are fully alive we cannot approve of the tendency, displayed in such gang cases to too readily accept the ipse dixit of the witnesses of association and to draw inferences from them which do not always follow. Finally the evidence of association by itself, even if believed, it must also be remembered, may well be insufficient, as pointed out by the Federal Court in the case of Dalilur Rahman Chowdhury and others v. The Crown (Criminal Appeal No. 59 of 1954 unreported), if it does not tend to show that the approver's statement that certain dacoities were committed by the accused persons was true.
With these general observations we now proceed to consider the cases of the appellants, other than Ramzan and Chand Mia, whose appeals, as already stated, have abated.
In this case the prosecution has adduced a vast volume of evidence to establish that the alleged gang was responsible for some 194 misdeeds, of which 102 were dacoities, 7 were robberies, 4 were attempts to commit dacoities, 2 were assemblies for the purpose of commission of dacoities and 23 were mere preparations for dacoities. The rest 59 consisted of house burglaries with thefts and 18 thefts from railway wagons. The prosecution left out one train theft as in respect of it no evidence was presumably available. In this large catalogue of occurrences the prosecution has included many, in which neither the approvers nor the accomplices claimed participation or even included them amongst the depredations of the gang. Again, the prosecution has also included 15 incide incidents which admittedly took place. prior to the charge period, namely, April 1942, and 9 decoities which, according to one of the approvers, Surat Ali (P. W. 2), were not the work of this gang at all but even after excluding these the field of activity of the gang, it will appear, extended from Feni, which is at a distance of about 85 to 90 miles from the headquarters, Bhairab, on the Chittagong side to Narayanganj which is at almost a similar distance on the Dacca side. Some of the dacoities spoken of are indeed so daring that one may well wonder if any law and order at all prevailed in this area at the time.
Some of the dacoities now being disclosed by the witnesses were not even reported to the police at the time they are alleged to have taken place, although eye-witnesses are now coming forward to claim that they even recognised some of the dacoits. The explanation given for this is that the witnesses were so overawed by the reign of terror prevailing at the time that they dared not disclose the names of the dacoits, even though in some cases they had actually recognised them. The Courts below have accepted this explanation and taken into account the evidence given many years after the occurrences to hold that even those dacoities which were never reported to the police did actually take place.
The appellants, of course, did not challenge that dacoities did, in fact, take place, as they disclaimed all knowledge thereof, but their case was that they were not responsible for them either individually or as members of any gang or that they belonged to any such gang. Such a large number of dacoities could not possibly have been committed mitted by any single organised gang over such an extensive area.
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