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Petitioner: THE STATE VS Respondent: SHAMOO
1980 P Cr
1980 P Cr. L J 836
[Karachi]
Before Abdul Hayee Kureshi, J
THE STATE‑Petitioner
versus
SHAMOO AND 4 OTHERS‑Respondents
Special Case No. S.K.‑38 of 1975, decided on 6th June, 1975.
(a) Penal Code (XLV of 1860)‑---
‑‑S. 397‑ Robbery‑ Dacoity‑Intention to cause death ‑Ocular testimony of Station Master and two other Railway employees regarding commission of offence by accused corroborated by testi mony of two other disinterested witnesses‑Footprints of accused from vardat leading to accused village identified‑Crime weapons and watch of Station Master recovered from possession of accused -Accused found absent from their villages on day following incident ‑Accused's object being to overawe Station Master by causing him hurt and putting him in fear of death or grievous hurt with a view to obtain access to Government cash lying in a safe‑Accused searching drawers and almirahs to obtain keys of safe‑Accused persistently beating Station Master and asking him to hand over keys of safe ‑ Intention of accused clearly spelt out to obtain Government money lying in safe‑Offence of dacoity, held, made out in circumstance.
(b) Evidence Act (I of 1872)‑--
----S. 9‑Identification‑Description of accused not given in Police statements‑Such omission, held, does not reduce value of identi fications‑[Identification].
(c) Penal Code (XLV of 1860)‑---
--‑‑S. 397‑Deadly weapon‑Hatchets and lathis‑Ordinarily carried by persons in Sind‑Held, cannot be termed as deadly weapons.
(d) Penal Code (XLV of 1860)‑‑--
‑‑‑S. 397‑Dacoity‑Being armed with deadly weapons for creating fear in minds of witnesses so that they should not resist commission of dacoity‑Held, amounts to use of deadly weapons within mean ing of S. 397, P. P. C.
M. Sulleman Memon, Addl. A.‑G. for the State.
Mahmood Shah for Respondents.
Dates of hearing : 30th April ; 14th, 16th, 17th, 28th and 29th May, 1975.
JUDGMENT
The five accused namely, Shamoo son of Sher Khan, Mitho son of Muhabat, Haji son of Dur Muhammad, Dhani Bux son of Nagar and Ghulam Hussain son of Qadir Bux, were sent up by Station House Officer of Railway Police Station, Larkana, to stand trial in this Court under section 395/397, P.P.C. and section 13‑D of the West Pakistan Arms Ordinance. I have tried this case as a Judge of the Special Court constitut ed under the Suppression of Terrorist Activities (Special Court) Act, 1975. The trial has proceeded in accordance with the procedure prescribed for trial of summons cases.
While the State was represented before me by Mr. Muhammad Sulleman Memon, Additional Advocate‑General, Sind, the five accused were represented before me by Mr. Mahmood Shah, Advocate.
2. The brief facts of the prosecution case are that on 15th April, 1975, at about 2‑45 a.m. the five accused came to Moen Jo Daro Railway Station and attempted to obtain the keys of the safe containing Government receipts by sale of tickets etc., and in the same transaction the accused persons caused injuries to Assistant Station Master Muhammad Irshad and two other railway employees, namely, Roshan Din and Wali Muhammad and a passenger in the waiting room named Jan Muhammad. It is further alleged that one watch each was forcibly removed from Assistant Station Master Muhammad Irshad and pointsman Roshan Din. It is also alleged that‑a sum of Rs. 40 was forcibly taken from passenger Jan Muhammad and another sum of Rs. 20 from another passenger Allah Bux.
3. On the night in question Muhammad Irshad was on duty at the Moen Jo Daro Railway Station, and at 2‑45 a. m. he heard some cries on the platform. On coming out he saw that Roshan Din, a pointsman and Wali Muhammad, a sweeper, were being beaten by the five accused persons. At that time one out of the five accused persons was carrying a pistol, another a gun, third a hatchet and the remaining two lathis. On seeing Muhammad Irshad, the accused persons caught hold of him ; and beating him, took him to the office of the Station Master. In that room Muhammad Irshad was asked to deliver the keys of the safe containing Government cash. In spite of persistent demand, the keys were not delivered so that Muhammad Irshad was beaten and the gun and pistol were pointed at him with a view to overawe him so that he should deliver the keys. Muhammad Irshad was severely beaten and ultimately he took out a book containing some Holy verses and stated to the five robbers to forgive everyone in the name of Quran, whereafter the robbers went away. The robbers had however, snatched the watch of Muhammad Irshad and another watch of pointsman Roshan Din. The robbers after leaving the station went to the western side of the Station in the kutcha ground and were marked by Muhammad Irshad going in that direction. After the departure of the dacoits, Muhammad Irshad called Station Master Muhammad Ishaque and narrated the entire story to him. In the mean. time two passengers Jan Muhammad and Allah Bux also come up and informed Muhammad Ishaque as well as Muhammad Irshad that those five dacoits had also robbed them of a sum of Rs. 60.
4. Station Master Muhammad Ishaque prepared a report which he sent to the Station House Officer of Railway Police at Larkana and copies of such report were sent to Station House Officer, Dokri Police Station and various other Officers of the police and Railway Department. Wali Muhammad, Sweeper, delivered a copy of the report at Dokri Police Station. At about 4 a.m. Inspector Mahboob Ali and S.H.O. Dilbar Yar Khan of Dokri Police Station arrived at Moen Jo Daro Railway Station alongwith Foot Tracker Shafi Muhammad Yhe3 inspected the scene and Assistant Station Master Muhammad Irshad pointed out a place on the western side of the station. Distinct footprints of five persons were visible and Inspector Mahboob Ali showed the same to Tracker Shafi Muhammad and later directed the Station Master to get the prints covered, which was accordingly done. The two Police Officers along with the tracker and other Police staff followed the foot prints of those five persons on the light of two torches that they had. The foot prints went along the bank of Rice Canal and entered the village of Iqbal Kharos at a distance of about 2 miles from Moen Jo Daro Railway Station. The Police Officers looked for any out going prints but none was visible so that they suspected that the five persons who had committed dacoity belonged to Iqbal Kharos village. After reaching Iqbal Kharos village the Police Officers sent tracker Shafi Muhammad back to the Railway Station so that he should once again distinctly mark the features of identification of the foot prints in day light as earlier he had seen the prints only in torch light. In the meantime S.H.O. Abdul Karim of Larkana Railway Police Station had also reached Moen Jo Daro Railway Station and he also asked Shafi Muhammad Tracker to mark the characteristics of the prints. S.H.O. Abdul Karim had registered a case at the Larkana Railway Police Station and got engaged in investigation. He prepared a mashirnama of the scene of occurrence and recorded the statements of Muhammad Irshad, Roshan Din, Wali Muhammad , Qurban Ali and Jan Muhammad. S.H.O. Abdul Karim thereafter proceeded to Iqbal Kharos village where Inspector Mahboob Ali and S.H.O. Dilbar Yar Khan, both of Dokri Police Station were present and busy in investigation.
5. On 15th April, 1975, when the police party reached the village of Iqbal Kharos, they found that the ten or fifteen houses in that village, occupied by persons who were Kharos by caste, were vacant, although the household articles were lying there. The three Police Officers remained busy in investigation but could obtain no clue. At about 3 a.m. on the following day viz. 16th April 1975, Inspector Mahboob Ali and S.H.O. Dilbar Yar Khan surrounded the village of lqbal Kharos. By that time the persons belonging to the caste of Kharos had returned to their houses. Inspector Mahboob Ali caught bold of sixteen persons as suspects and he interrogated these persons. On interrogation he suspected accused Shamoo, Mitho, Haji and Dhani Bux who were among the sixteen suspects, Inspector Mahboob Ali produced these four suspects before Shamsuddin, the Head Munshi and Third Class Magistrate at Dokri, for holding of their foot print test through Tracker Shafi Muhammad and identification test through Assistant Station Master Muhammad Irshad, pointsman Roshan Din and Sweeper Wali Muhammad. Tracker Shafi Muhammad pointed out the foot prints of each one of these four accused as resembling such foot prints that had been seen by him at the scene of occurrence. The three witnesses namely, Muhammad Irshad, Roshan Din and Wali Muhammad also successfully identified these four accused persons. After the foot prints test and identification parade, the four accused persons were arrested by Mahboob Ali Inspector. On the same day, Mahboob Ali Inspector handed over the four accused, Shamob, Mitho, Haji and Dhani Bux to the custody of S.H.O. Abdul Karim of Railway Station, Larkana. On the same day Inspector Mahboob Ali had also directed S.H.O. Dilbar Yar Khan to arrest accused Ghulam Hussain the fifth accused from Iqbal Kharos village
6. S.H.O. Abdul Karim after obtaining the custody of the four accused Shamoo. Mitho. Haji and Dhan; Bux. proceeded to Iqbal Kharos village and in presence of witnesses each one of these four accused had made some incriminating statements and volunteered to produce the weapons used in the dacoity. accused Shamoo also volunteered to produce a watch which had been obtained by commission of dacoity Each one of the four accused thereafter, 'ed the Police Officer, and rnashirs to their respective houses. Accused Shamoo produced a pistol, two cartidges and a watch. Accused Mitho produced a hatchet Dhani Bux a lath; and Haji also a lath;. All the property was secured under separate Mashirnamas.
7. S. H. O. Dilbar Yar Khan arrested accused Ghulam Hussain under the directions of Inspector Mahboob Ali in the afternoon on 16th April, 1975. Ghulam Hussain was also produced before the Head Munshi and Third Class Magistrate on same day at about 4‑30‑p‑m. for foot print test through tracker Shafi Muhammad and identification test through witnesses Muhammad Irshad, Roshan Din and Wali Muhammad. Tracker Shafi Muhammad pointed out his foot prints as identical to the foot prints of one of these five persons whose prints had been seen by him out the Western side of the Railway Station The three witnesses Muhammad Irshad, Roshan Din and Wali Muhammad also identified accused Ghulam Hussain as one of those persons who had committed dacoity.
At the time of arrest of accused Ghulam Hussain he had produced a gun, a bandolier containing ten cartridges and a watch. He also produced a licence in respect of the said gun and cartridges.
8. The two watches recovered from accused Shamoo and accused Ghulam Hussain were also separately produced before Shainsuddin, the Head Munshi and Magistrate for holding an identification test through witnesses Muhammad Irshad and Roshan Din. These two watches were mixed with six other like watches and both the witnesses correctly picked out their watches.
9. The pistol and gun respectively recovered from accused Shamoo and Ghulam Hussain were sent to the Forensic Laboratory for examina tion and a certificate was issued to the effect that same were serviceable However, since no officer from the Forensic Laboratory has been examined and the certificate was produced by S. H. O. Abdul Karim, the said document is not legally proved. After completion of investigation. the charge‑sheet was submitted in this Court on 28th April 1975. I had framed the substance of accusation on 30th April, 1975 and each one of the accused pleaded not guilty.
10. At the trial the prosecution examined Muhammad Irshad, the Assistant Station Master; Roshan Din, the pointsman; and Wali Muhammad Sweeper ; who are employees of the Railway Department at Moen Jo Daro Railway Station. The prosecution examined Jan Muhammad. the passenger who had been robbed by the five dacoits in the waiting room of the said Railway Station. While the first three witnesses have identified the five accused persons, in Court as well as during the identification parade, the last witness Jan Muhammad has not been able to identify the accused in this Court nor was he put to identification at the time of parade: The prosecution has examined Muhammad Ishaque, the Station Master, who came up to the Station immediately after the incident and was given the details in regard to the occurrence. This witness has produced and proved his report which has been treated as first information report. The prosecution has examined tracker Shafi Muhammad who successfully pointed out the foot prints of each .one of the five accused at test identification parade held on 16th April, 1975. The prosecution has examined Ghulam Ali, who is the mashir of the scene of occurrence and in whose presence the injuries of Muhammad Irshad were seen by S.H.0 Abdul Karim. Dr. Muhammad Ibrahim who had examined Muhammad Irshad, has also been produced in Court. The next witness in the case is Shamsuddin, the Head Munshi and Third Class Magistrate who held the foot print tests, identification parades and identification tests of the watches. Nazar Muhammad, the mashir in regard to the recoveries from the various accused and the several parades or identification tests, has also been examined. The remaining three witnesses are Police Officers, consist ing of Inspector Mahboob Ali, Sub‑Inspector Dilbar Yar Khan of Dokri Police Station and Sub‑Inspector Abdul Karim of Railway Police Station.
11. While the five accused have not examined any witnesses in the:, defence, they have denied the prosecution case in their statements under section 342, Cr. P. C. In fact each one of the five accused has denied the entire prosecution case including recoveries and their being pointed out in the identification parades. They have stated that no parade was held at all. The defence of these five accused appears to be that four of there namely, Shamoo, Mitho, Haji and Dhani Bux belong to the party Mr. Abdul Hameed Jatoi is a Member of the National Assembly, whereas accused Ghulam Hussain is on terms of enmity with these four accused as well as with Mr. Abdul Hameed Jatoi. To explain, one of the arguments advanced at the Bar before me was that since accused Ghulat , Hussain and the remaining accused were on terms of enmity they could not have joined in the commission of this dacoity.
Additionally each one of the five accused has stated that three days before the decoity they had been called by Inspector Mahboob Ali at Dokri Police Station and told to compromise their disputes and since these accused were not willing to compromise their disputes and on their refusal they were locked up and implicated in this case.
Accused Ghulam Hussain has however, owned the gun, the bandolier and the licence. He has stated that one day before the dacoity Inspector Mahboob Ali had asked one Lai Khan, his father‑in‑law, to bring the licensed gun and the cartridges which was brought by Lai Khan and delivered to Mahboob Ali.
Accused Shamoo has also produced a certified copy of a report under section 107, Cr. P. C. lodged against him and accused Dhani Bux, wherein Lai Khan, the father‑in‑law of accused Ghulam Hussain, is shown as a witness. Accused Ghulam Hussain has also produced certified copies of proceedings in some cases in order to substantiate his claim of enmity against the remaining four accused. Accused Ghulam Hussain has also stated that Abdul Hameed Jatoi, M. N. A. has got a woman of his family abducted, in regard to which abduction a case was pending against Abdul Hameed Jatoi. He has further stated that Inspector Mahboob Ali had implicated him at the instance of Abdul Hameed Jatoi, so that the case pending against Abdul Hameed Jatoi may be settled in the latter's favour.
12. On such state of allegations and evidence the following points arise for determination:
(1) Whether a dacoity was committed on 15th April, 1975 at Moen Jo Daro Railway Station ?
(2) Whether property belonging to Government was the subject‑mat ter of the said dacoity ?
(3) Whether accused or any of them committed the said dacoity ?
(4) Whether the accused or any of them were armed with deadly weapons at the time of commission of dacoity ?
(5) Whether any of the accused used deadly weapons for the commission of the dacoity ?
Points Nos. I and 2
It will be convenient to consider both these points together.
13. There is no denial of the fact of a dacoity having taken place. In fact Mr. Mahmood Shah, the learned Advocate for the accused has not attempted to dispute this point. The evidence on this point is furnished by witnesses Muhammad Irshad, Roshan Din and Wali Muhammad. This evidence is further corroborated by the evidence of Jan Muhammad. The evidence of Muhammad Ishaque, the Station Master also strengthens the prosecution evidence on this point because he was the person who was given prompt information in regard to the occurrence.
14. Each one of the four eye‑witnesses has categorically stated that at about 2‑45 a. m. on 15th April, 1975, five persons carne and caught hold of Roshan Din and Wali Muhammad and also caused them some minor injuries. The watch of Roshan Din was removed by these five persons forcibly. The evidence then discloses that on account of cries raised by Roshan Din and Wali Muhammad, Assistant Station ,Master Muhammad Irshad came out on the platform whereupon those five persons spared Roshan Din and Wali Muhammad and forcibly . dragged Muhammad Irshad to the Station Office viz. the office of the Station Master. The witnesses stated that those five persons not only beat Muhammad Irshad but persistently asked about the keys of the safe containing Government Cash. On Muhammad Irshad's statement that the keys were with the Station Master, he was repeatedly beaten and there after the gun and the pistol were pointed at him so that he was threatened with death in case he did not deliver the keys. These five persons there after searched the drawers and the cupboard with a view to obtain the keys, but although the keys were in one of the drawers, they were not able to find the same. \ Ultimately, when a book was shown to these accused persons, and they `were implored in the name of Qur'an, they spared Muhammad Irshad and went away. They however, succeeded in remov ing the watches of Muhammad Irshad and Roshan Din and also a sum of Rs. 60 from Jan Muhammad and Allah Bux.
15. The learned Advocate for the accused attempted to argue that since no violence had been caused to the safe containing Government cash, `he offence of dacoity was not committed. Section 390, P. P. C. defines robbery. Clause 3 of the section reads as under
"Extortion is robbery' if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and' commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person, or to some other person, and, by so putting in fear, he induces person so put in fear then and there to deliver up the thing extorted.
Explanation.‑The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint."
It would be seen that if an offender at the time of committing extor tion is in the presence of the person who is put in fear of instant death or hurt or of instant wrongful restraint to him or to any other person, for the purpose of obtaining delivery of the thing extorted, he would be guilty of robbery. In the present case Muhammad Irshad was asked to deliver the keys of the Government safe and for such purpose he was not only put in fear of death or hurt but actually injuries were caused to him. In such circumstances extortion would amount to robbery. What is more that a gun and a. pistol was pointed at him so as to overawe him and create an apprehension of death in the mind of Muhammad Irshad.
Illustration "B" to section 390, P. P. C. is also very clear on the point. this illustration reads as follows
"A meets Z on the high‑road, shows a pistol, and demands Z's purse. Z, in consequence, surrenders his purse. Here A has extorted the purse from Z by putting him in fear of instant hurt, and being at the time of committing the extortion in his presence. A has therefore committed robbery."
1t must be seen that the object and intention of these five persons was to overawe victim Muhammad Irshad by causing him hurt. and Plating him in fear of death or hurt, with a view to be able to obtain :d; ; ‑. ,s to the Government cash. The Government cash was lying in the same room and it is in evidence that a. sum of Rs. 1,400 (approximately) was lying in the Government safe. The accused persons also searched the drawers and almirah with a view to obtain the keys of the cash. In fact the evidence of Muhammad Irshad as well as of Wali Muhammad and Roshan Din clearly discloses that the accused persons went on beating Muhammad Irshad and persistently asked him for keys of the Government cash. This would clearly disclose that the intention of the accused was to obtain Government money lying in the safe.
lb; There is also evidence to the effect" that Muhammad Irshad received injuries at the hands of accused persons. His injuries were seen by Inspector Mahboob Ali as well as Sub‑Inspectors Dilber Yar Khan and Abdul Karim. Not only a mashirnama in regard to the injuries was pre pared but Muhammad Irshad was also sent to the Medical Officer of Dokri Dispensary on the same morning. Dr. Muhammad Ibrahim examined him and‑found that he had as many as six injuries on his person. One lacerat ed wound was caused on. his head; two abrasions on his arms, and swelling on the nose which was bleeding, swelling also on the eye‑lids and haematoma measuring 4 inches in diameter, on the left upper arm.
17. All these circumstances clearly indicate that dacoity was committed at Moen Jo Daro Railway Station on the night intervening 14th and 15th April, 1975 and Government cash was sought to be taken away by commission of dacoity.
I hold these two points in the affirmative.
Point No. 3
On this point the following pieces of evidence are available against the accused
(a) Ocular testimony of Muhammad Irshad, Roshan Din and Wali Muhammad ;
(b) Corroborative testimony of Muhammad Ishaque and Jan Muhammad ;
(c) Identification of foot prints of the accused ;
(d) Recovery of weapons from all the accused and watches from Ghulam Hussain and Shamoo ;
(e) Foot prints from vardat leading to Iqbal Kharos Village ; and
(f) Absence of accused from their village on the day following the incident.
18. I will first deal with the evidence of eye‑witnesses. In such regard the evidence of Muhammad Irshad, Roshan,, Din and Wali Muhammad is relevant. Each one of these three accused is an employee of Railway Department and is posted at Meon Jo Daro Railway Station. The three witnesses were on duty at the time of incident and their presence at the station was necessary because Bolan Mail had left the station at about 2a.m.
19. These three witnesses have given clear and consistent evidence on the fact that all the five accused came to the station and first started beat ing Roshan Din and Wali Muhammad who were lying down in the verandah outside the Station Master's office. Roshan Din has spoken about the removal of his watch from his wrist. Muhammad Irshad heard the sound and came out on the platform and found ‑that five persons were quarrelling with Roshan Din and Wali Muhammad. All the three witnesses then stated that as soon as Muhammad Irshad came out on the platform; the five accused persons caught hold of him and after giving him lathi blows and slaps, they dragged him into the office. Each one of these witnesses has deposed that the accused persons searched for the keys and repeatedly gave blows to Muhammad and. Irshad persistently asked about the keys of the safe containing Government cash. The evidence also discloses that the watch of Muhammad Irshad was taken away. All the witnesses have stated that Muhammad Irshad with the presence of mind took up a book and showed the same to the accused persons, imploring upon them in the name of Holy Quran, whereafter the accused persons went away.
The evidence of Muhammad Ishaque, the Station Master completely corroborates the evidence of these three witnesses; and, Muhammad Ishaque also sent a written report to the Station House Officer of Railway Police Station at Larkana with copies to the Station House Officer of Dokri Police Station and various other Officers. In this report loss of watches, the weapons carried by the accused, the attempt at obtaining keys of the Government cash and various other aspects of the case have…
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