WASEEM LAW ASSOCIATES:
[1967] ALL PAKISTAN LEGAL DECISIONS
They where possibly sporadic offences in which local Badmashes or local groups of dacoits may have participated but they could not be recognised and, therefore, either no prosecutions were launched or those that were launched failed.
The trial Court has, of course in an elaborate judgment first discussed the evidence with regard to each dacoity and then tried to marshal the evidence against each individual accused but we do not think that any useful purpose will be served by repeating that procedure, for, the main question before us is as to whether these were the work of any particular gang and, if so, whether the appellants were members of that gang? We would, therefore, deal with the cases against each of the appellants separately but before doing so we would like to indicate that since the main evidence upon which the existence of the gang is sought to be established is that of the three approvers and the four accomplices we fail to appreciate how, if they have have not not ascribed an incident to the gang, the evidence of such an incident can be treated as affording corroboration to the evidence of the approver or accomplice. The incidents, which are alleged to have taken place prior to the period of the charge, have rightly been excluded by the Courts below and we too shall not take them into account. But as regards incidents about which no reports were lodged with the police we cannot agree with the Courts below that they can be taken into account. If a person never lodged an F. I. R. about a dacoity in his house how can his veracity be accepted after 8/10 years, when he comes forward to assert that such a dacoity did, in fact, take place in his house. The evidence ence of such incidents incidents must, in our view, be treated with great caution and unless confirmed through extremely reliable independent evidence should not be acted upon.
There is another important fact which must be kept in mind while assessing the evidence in this case, namely, that none of the approvers or accomplices implicated either their leader Ramzan or his two sons Lal Mia and Chand Mia or his brother Shahjehan in their confessional statements. They brought them in only subsequently when giving evidence in Court. The explanationk for this is that as Ramzan, his sons and brother had not been arrested by then, they were afraid to implicate them knowing that in the past whoever opposed them did not remain alive for long. This explanation does not, however, impress us, for, after the approvers had been arrested they could have no reason to be afraid of Ramzan or his relations, because, until they were granted pardon they would have remained in police custody and neither Ramzan nor his near relations could have caused them any harm there. In our view, this is an important omission from the confessional statements of the approvers of which Ramzan and his near relations are legitimately entitled to take advantage.
As for the accomplice evidence it has to be pointed out that P. W. 4 Ahsanullah on his own statement did not become a member of this alleged gang and did not participate in any dacoity alleged to have been committed by the gang. If, as he L states, he gave up his association with Ramzan before the gang came into existence it is difficult to accept that his information about the formation of the gang could have been either first-hand information or that he could have known all the members of the gang. It is not surprising, therefore, that he should have failed to identify a large number of the important members of the gang including Shahjehau, the step-brother of Ramzan.
So far as Kadir (P. W. 5) is concerned it is an admitted fact that he was arrested as being a member of this very gang itself and was kept in detention for 10/15 days. He claims that he remained a member of the gang up to the end of 1942 but in those 4 years he participated only in two dacoities and in a meeting for another one. It is said that he has come to depose being repentant. If this really be so it is difficult to appreciate why he was not produced before a Magistrate to have his con-fession recorded and later made an approver and granted pardon. Similarly Suruj Ali (P. W. 6) claimed that he repented and gave up his connection with the gang after participating in only two dacoities, the last of which, namely, the Sipri flat dacoity, it is alleged, took place on the 31st of May 1943. Neither Kadir (P. W. 5) nor Suruj Ali (P. W. 6) could identify all the accused charged in this offence, and it is is not without signifi-signin-cance that Suruj Ali failed to identify even Lal Mia, one of the sons of Ramzan.
Again Abdur Razzak (P. W. 7) on his own admission never became a member of the present gang, although he was arrested and detained in custody for nearly five months in connection with the train dacoity between Talshahar and Ashugang which took place on the 14th of September 1948. He also purported to give evidence with regard to this very train dacoity as an eye-witness. In the case of this witness if he was not a member of the gang then we find it difficult to follow the reasoning of the trial Court that he must nevertheless be treated as a natural witness because he was a member of the former gang of Ramzan.
We cannot help looking at the evidence of these accomplices with great suspicion. If they were not members of the gang they merely gave evidence of association. On the other hand, if they were members of the gang, then they should have been made approvers and not examined merely as accomplice witnesses. The veracity of these accomplice witnesses is open to serious doubt.
We might also mention here that the evidence discloses that Ramzan was convicted in 1926 in a case of abduction under section 366, Pakistan Penal Code, read with section 457, Pakistan Penal Code, and was sentenced to rigorous imprisonment for seven years. It further appears that he was actually arrested after the Daulatkandi train dacoity No, 1 which took place on the 27th of November 1942, November 1942, and again after the Lalpur boat dacoity which took place on the 21st of July 1943. Again, ain, he was involved in a case under section 110 of the Code of Criminal Procedure, which remained pending from March to August 1944, and in August 1946, he was arrested for the murder of Jabbar and was kept in detention till June 1947. While in detention he became a victim of rheumatism and was so badly affected that even according to the prosecution he could not participate in any dacoity committed after 1947. He was afterwards discharged in all these cases but these facts certainly do not support the prosecution story that Ramzan enjoyed complete immunity during this period.
We would also like to mention here that even the evidence of specific association adduced in this case, though voluminous, is of an extremely vague, indefinite and stereotype nature. All that these witnesses state is that they saw some of the appellants meeting either in the house of Ramzan or Jabbar or at some road-side or near some Ghat or railway station or moving about together. There is no evidence that they ever reported thest meetings to any responsible person. A few, who have stated that they did inform others of such meetings, are careful enough to name only such persons as are now dead and cannot be called either to confirm or to contradict them. There is also nothing in this mass of evidence to show that the circumstances in which the appellants were seen did, in any way, give rise to any curiosity or suspicion. There is also nothing in in this evidence to show that the alleged gang hac had any kind of fixed rendezvous.N The purpose of such evidence is to lead to the inference that the habitual meeting or collection in groups of suspicious characters is so consistently followed by the report of a dacoity that the two cannot be without some causal connection. In the circumstances it is usual to bring on the record some more facts, such as the subsequent aflluence of the suspected participants in the dacoity or their disappearance from their respective villages or some other unusual behaviour to complete the chain of circumstances. There is no evidence of this nature in the present case.
Apart from this a large number of these witnesses have even failed to identify the members of the alleged gang in the dock. In the circumstances, we consider this evidence of association to be of an extremely weak nature and by itself this evidence, in our opinion, establishes nothing. We are unable, therefore, to place any credence on such evidence unless it has received further confirmation.
With these observations we now proceed to examine the argu-ments advanced before us. The learned counsel appearing for the State has assisted us by taking us through the evidence only in respect of those appellants whose cases he considered to have been adequately and convincingly proved. He has also prepared a chart of the evidence for the use of the Court but on examina-tion we find that the chart is far from accurate and cannot safely be relied upon.
The learned counsel engaged at State expense to support the appeals of the appellants has, on the other hand, stated that he does not wish to go into the evidence but would confine bimself to general arguments relating to the inherent improbabilities of the case.
His first contention is that the gang set up in this case was a figment of the imagination of the investigating officer, for, indeed it is extremely improbable that any single gang of dacoits could.
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