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Petitioner: OMAR ALI AND OTHERS VS Respondent: THE STATE
P L D 1967 Dacca 310
P L D 1967 Dacca 310
Before A. K. M. Baquer and Abdus Subhan Choudhuri, JJ
OMAR ALI AND OTHERS‑Appellants
Versus
THE STATE‑Respondent
Criminal Appeal No. 203 of 1961, decided on 29th July 1965.
(a) Penal Code (XLV of 1860), S. 400 read with S. 395 --Dacoity‑Conviction under 5.400‑Parlicipation in any dacoity not necessary‑Participation, on other hand, in any one dacoity --Evidence of accused's association with gang and of his object in such association‑Evidence on record justifying conviction under S. 395‑Conviction under S. 400 cannot be considered bad in law on that ground.
For a conviction under section 400 of the Penal Code, 1860, it is not necessary that the person convicted must have taken part in any one of the dacoities. On the other hand evidence showing the actual participation by an accused in any given dacoity is evidence both of his association with the gang and of his object in such association. Such evidence which though not believed for the purpose of a conviction under section 395 of the Penal Code may yet be relied upon for the purpose of a conviction under section 400 of the Code. A conviction under section 400 of the Code, cannot be considered bad in law merely because the evidence on the record would also have justified a conviction of a specific offence under section 395 of the Code.
Bachchu v. Emperor 32 Cr. L J 1.62; Kader Sundar and others v. The Emperor 16 C W N 69; Sarwan Singh, Rattan Singh, Harbans Singh and Bhan Singh v: State of Punjab (1957) 58 Cr. L J 1014 ; Nabi Dusadh v. The State A I R 1956 Pat. 39; (1956) 57 Cr. L J 95; Kallu v. Emperor 18 Cr. L J 456; Kartara v. Emperor A I R 1934 Lah.. 525; Roshen Behari v. The State (1957) 58 Cr. L J 678; The Public Prosecutor v. Bonigiri Potligadu and others I L R 32 Mad. 179; Murli Brahman and others v. Emperor 26 Cr. L J 1412; The Queen v. Mooktaram Sikdar 23 W R 18 and Ladu Asolla v. Emperor I L R 52 Cal. 595 ref.
(b) Penal Code (XLV of 1860), Ss. 400 & 395 read with Evidence Act (I of 1872), S. 14, Explanation 2‑Conviction for dacoity previous to time specified in charge under S. 400‑Rele vant‑Evidence of conviction for dacoity subsequent to time specified in such charge‑Not admissible.
Empress v. Naba Kumar Patnaik and others 1 C W N 146 and Ladu Molla v. Emperor I L R 52 Cal. 595 rel.
M. A. Hamid with Md. M. R. Khan and Nowab All for Appellants.
Abdul Hakim, Deputy Legal Remembrancer with Naimuddin Ahmed for the State.
Dates of hearing: 26th to 29th July 1965.
JUDGMENT
A. K. M. BAQUER, J.‑The seventeen appellants before us, namely, Omar Ali, Nazib Ali, Yad Ali, Darog Ali, Tara Mia, Abdur Razzak, Chand Mia, Monsur Ali, Manu alias Manchar Ali, Mahabbat Ali, Latu alias Abdul Latif, Lai Mia, Hura Gazi alias Asgar Ali, Belayet Ali, Pichan Ali, Gada alias Samuz Ali and Ayub Ali have been convicted under section 400 of the Pakistan Penal Code by Mr. M. Huq, Additional Sessions Judge, Sylhet and sentenced to various terms of imprisonment. Appellants 1,4 to 12, 15 and 17, namely, Omar Ali, Darog Ali Tara Mia, Abdur Razzak, Chand Mia, Monsur Ali, Manu alias Manchar Ali, Mahabbat Ali, Latu alias Abdul Latif and Lai Mia respectively to rigorous imprisonment for eight years each and appellants Nos. 2, 3, 13, 14 and 16, namely Nazib Ali, Yad Ali, Hura Gazi alias Asgar Ali, Belayet Ali and Gada alias Samuz Ali to rigorous imprisonment for ten years each.
The trial was held with the aid of three Assessors who were unanimous with regard to the guilt of appellants Nos. 1 to 8 namely, Omar Ali, Nazib Ali, Yad Ali, Darog Ali, Tara Mia Abdur Razzak, Chand Mia and Monsur Ali respectively and appellant No. 15, Paichan Ali.
As to the rest excepting in the case of appellants Nos. 10 and 14, namely, Mahabbat Ali and Belayet Ali respectively, the unanimous opinion was that of benefit of doubt. In the case of appellant No. 10 Mahabbat Ali‑one found him not guilty; the two others gave him benefit of doubt. In the case of appellant No. 14 Belayet Ali, one found him guilty and the other two Assessors gave him benefit of doubt.
The question that confronts us is as to whether these men belonged to a gang of persons and the next question would be as to whether they were so associated together for the purpose of habitual commission of dacoity in terms of section 400 of the Pakistan Penal Code which is in the following 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 transpor tation for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
The number of men required to make a gang has not been specified. It is an unknown quantity but it seems to be surely well above five in the light of section 391 of the Pakistan Penal Code.
In our present case, the company is of 17 persons and the dacoities which they are alleged to have committed or participated in are as many as 150 in number.
The evidence has been given in some cases of the actual participation of some of them in several dacoities although it has been argued that it was not strictly necessary to show their actual participation in any single dacoity and that the offence arose from the purpose itself, namely, that of association for habitual commission of dacoity.
To show the connecting link among these men, the prosecu tion has brought evidence of their actual participation in several dacoities together; evidence of their movements together and in batches and in Bahars of boats, that is, flotillas; of their living rather loudly without any ostensible means of livelihood and without any fixed local habitation an land; of the coincidence of dacoities in the areas near which they halted their boat; the incidents of dacoity rising and falling with their being at large and being under arrest and in some cases recovery of booties of dacoities from their boats.
In several cases First Information Reports were lodged although in several others there was no such icing of First Information Report.
Evidence has been brought forward also to show that some of the appellants were actually convicted of the charge of dacoity or of receiving the booties of dacoities. In some instances the evidence as brought forward felt short of actual proof of dacoity, but nevertheless such evidence seemed to be indicative of the criminal combination essential to drive the charge home under the section.
All the appellants with the exception of Hura Gazi belonged to the same caste, namely, that of Gains and are also inter‑related and thus bound by a natural common tie.
It is alleged that they were also bound together by another far stronger common tie which is economic, namely, that of associating and working together as a body to make a living out of their co‑operative and joint enterprise in the field of dacoity.
The appellants, do not have any fixed habitation on land and are a riverain group and the dacoities they are alleged to have committed are riverain and Bahar dacoities.
The prosecution has brought forward evidence of these men carrying on the depredations from the period from 1954 to 1958 and of their activities spreading over a large area, namely certain parts of Sylhet and Mymensingh districts.
They are alleged to have committed one dacoity in the Government Agricultural Power. Pump Station at village Naogaon of Astagram Police Station on the bank of Meghna river on 23‑1‑1958. They also committed dacoities in different boats in Barori Beal of Madan Police Station, Haliar taaor of Jemal ganj Police Station, Kadamsree Haor of Madan Police Station, Hultar Haor of Tarail Police Station, Betem Haor of Mohangan3 Policc Station, Tagor Haor and Satkuriar Haor of Dharmapasha Police Station, a Haor of Jamalganj Police Station near village Sangrampur, Goa Heel of Habiganj Police Station, Solabariarchar of Nikhil Police Station in Dhanai river within Barhatta Police Station, Dupi Beel and Kanjar Haor .within Dharmapasha Police Station and in the flat steamer named "Landoor" in the Surma river near Sukudpur village within Jamalganj Police Station at the junction of Beramonanar river within Itna Police Station as well as at the junction of Sachra Khal within Mohanganj Police Station.
The latest of their dacoities took place in Harguar Haor of Dharmapasha Police Station within the Sunamganj sub‑Division of Sylhet district on the night of 2‑10‑1958.
It is actually this dacoity that gave the gang away leading to its discovery and ultimate Nemesis.
There have been cases of more than one dacoity even in course of the span of 2/3 hours and their victims were mostly businessmen returning on the river with their collections on the Hat days or marriage parties going on the river.
Their womenfolk used to sell Churis for which purpose they would go in land and perhaps collect informations of the likely movements of people with money although the prosecution has not brought forward any direct evidence of that kind. ,
These men had no other profession and lived flourishingly on the slender resources from the sale of Churis by their womenfolk.
They sometimes dressed in Khaki clothes so as to make an impression upon their prospective victims; they also carried arms of different kinds.
The prosecution story is that appellants Darog Ali, Mansur Ali, Balayat Ali, Omar Ali and Nazib Ali along with the approver Moharam Ali formed the advance party of the gang to commit this Harguar Haor dacoity. They were armed with weapons Exhs. XXXVII to XLIII As well as torch lights. Moharam Ali had Khaki full pant and Khaki half shirt on his wearing. He also had muffler on his person. Appellant Nazib Ali was also in Khaki dress. The others followed them in a different boat. At about sunset of 2‑10‑58 they arrived at Harguar Haor. At that time P. W. 91 Arab Ali Talukdar, an elected member of the Dharmapasha Union Council was returning from Dharmapasba Bazar in a boat along with P. Ws. 257 and 267, namely, Abdul Malek and Ambar Ali respectively and others. They reached Harguar Haor during evening. P. W. 91 Arab Ali found his boat being plied by the party of P. W. 1 Moharam Ali, the approver and appellants Omar Ali, Darog Ali, Nazib Ali and others.
This boat of P. W. 91 was stolen in the early part of September, 1958. On seeing the boat P. W. 91 Arab Ali queried as to where they got the boat. The appellant party instead of giving any reply made a counter query as to what P. W. 91 Arab Ali and his fellow passengers had in their boats.
P. W. 91 and others of their boat got frightened and raised hue and cry. P. W. 42 Abul Fazal at that time officer‑in‑charge of Dharmapasha reached there in a boat on patrol duty along with P. W. 235 Kala Mia; they were armed with guns. They raised cry of assurance to those frightened by the dacoits and reached near their boat and that of the accused party with some speed. P. W. 91 Arab Ali and others of the Police party arrested appellants Omar Ali and Darog Ali; the remaining four members of the accused party jumped into the water. The police party pointed guns at them and arrested P. W. 1 Moharam Ali and appellant Nazib Ali from the water. The police also found different articles, namely, Ramdaos and other articles with them. In the meantime P. W. 92 Abbas Ali, P. W. 268 Mobarak Ali and P. W. 269 Hossain Ali who were returning from Darmapasha Bazar in another boat reached there.
P. W. 269 Hossain Ali wrote the First Information Report Exh. 2; P. W. 91 signed this and lodged the same with P. W. 242. P. W. 242, the O/C, arrested Darog Ali and Omar Ali and also seized the articles preparing seizure list Exh. 7(1).
After arrest, P. W. 1 Moharam Ali made a statement and took P. W. 242 and others to Naogaon Bandh Haor, a distance of five miles from Harguar Haor. The party reached there at about 5‑30 a.m. on 3‑10‑1958 and found a Bahar of seven boats. On seeing them the inmates of the boat wanted to run away with the boat but P. W. 242 threatened them with guns; whereupon they surrendered. Then P. W. 242 arrested appellants Mansur Ali, Pichan Ali, Tara Mia, Hur Gazi, Yad Ali and Samuz Ali; searched their boats and seized different articles including petromax lamp Exh. 1 and their boats and prepared the seizure lists Exhs. 7 (2) to 7(8).
Thereafter they returned to the thana along with P. W. 1 Moharam Ali.
P. W. 1 Moharam Ali thereafter took P. W. 242 to Sunamganj thana office, reaching there on 4‑10‑1958. There P. W. 242 took police force including P. W. 288 from Sunamganj thana office. Therefrom P. W. 1 Moharam Ali took the police party including P. W. 288 to Kurutola Ghat, which is situated within Sunamganj Police Station. There P. W.288 found appellants Chand Mia, Abdul Latif and Abdur Razzak in three different boats and after searching their boats arrested them and seized different articles and prepared lists Exhs. 7(11) to 7(13).
On the same date they went to Sunamganj Launch Ghat and arrested appellants Belayat Ali, Mahabbat Ali and Manu alias Manahar Ali from different boats of theirs; searched their boats and seized different articles including the boats and prepared the seizure lists Exhs. 7 (14) to 7(16).
Thereafter on 6‑10‑1958, P. W. 1 Moharam Ali was taken to a Magistrate at Sunamganj, namely, P. W. 280 for recording his confessional statement which was so recorded by the Magistrate Exh. 9. Thereafter P. W. 1 took P. W. 288 to Baliakandi Ghat on 8‑10‑1958. There P. W. 288 found appellant Lal Mia in his boat; arrested him and after searching of his boat seized different articles including the boat and prepared the seizure list Exh. 7 (17).
P. Ws. 274, 280, .303, 304 and 309, namely, Messrs M. Hossain, W. A. Chowdhury, B. Barua, W. Zaman and Abdul Malek respectively who are all Magistrates held T. 1. Parades of suspects and suspected articles on different dates during the period from 19‑11‑58 to 25‑9‑59.
P. W. 282 also recorded further confessional statement Exh. 9 (1) of P. W. 1 Moharam Ali between 6‑5‑59 to 8‑5‑59.
Another Magistrate, since dead, recorded further confessional statement Exh. 9 (2) on 11‑5‑59.
Thereafter on 13‑10‑58 P. W. 287 A. S. I. Ali Ahmad attached to Sunamganj Police Station went to Jamlabaj village of that thana and arrested appellant Ayub Ali there; searched his house; seized articles and prepared the seizure list Exh. 7 (10).
After seizure of suspected articles, the different Investigating officers sent informations to different Police Stations for ascer taining the ownership of the different seized articles and particulars of the dacoities in respect of the same.
Thereafter the Investigating Officers examined the claimants of these properties and took steps for T. I. Parades and on that basis some T. I. Parades were actually held.
Investigations were taken up by different Investigating Officers and final reports were submitted in many of these cases and charge‑sheets were submitted only in about a dozen cases.
On receipt of respective copies of different F. I. Rs., the I. G. directed the Deputy Inspector‑General of Police, C. I. D., to take up investigation of the dacoity cases; whereupon C. I. D. Inspectors M. A. Hamid P. W. 294 and Abdul Hussain were deputed to investigate the cases mentioned in those F. I. Rs. Thereafter Inspector M. A, Hamid took up investigation and investigated some of the cases in respect of which the O/Cs. concerned submitted final reports.
Out of these cases, three ended in conviction as under:
In the Sessions Case No. 46 of 59 arising out of the Harguar Haor dacoity, appellants, Darog Ali, Umar Ali and Nezib Ali were convicted of the offence under section 395 of the Penal Code on 4‑6‑59.
On 16‑6‑59 appellant Manwar Ali alias Manu was convicted in the Sessions Case No. 47 of 59 arising out of the dacoity in the Flat steamer "Landoor" on the Surma river and that also under section 395 of the Penal Code.
On 29‑6‑59 the appellants Darog Ali, Mansur Ali and Pichan Ali were convicted of an offence under section 411 of the Penal Code for dishonestly receiving articles that were robbed in the Kanjar Haor dacoity within the Police Station of Dharma pasha.
On 11‑1‑60, Inspector Hamid sent a statement to O/C, Sunamganj Police Station for the offence under section 400 of the Penal Code and after examination of witnesses and completion of investigation, the Inspector submitted the charge‑sheet against the appellants on 23‑1‑60.
After preliminary enquiry by a competent Magistrate, the appellants were committed to the Court of Sessions to stand their trial for the offence under section 400 of the Penal Code.
The Magistrate also granted pardon to P. W. 1 Moharam Ali by an order dated 25‑4‑60.
The appellants were thereafter put up for trial under section 400 of the Penal Code for belonging to a gang of dacoits associated for the purpose of habitually committing dacoity.
The defence was a plea of not guilty and that of their not committing any offence. They denied having formed any gang or dacoits or that they lived in Bahar of boats.
Their version was that some of them used to live in independent boats of theirs and that they also have enmity with P. W. 1 Moharam Ali and that they have all been falsely implicated by P. W. 1 out of that enmity in collusion with the police.
So far as the Harguar Haor incident goes, their version was that it was not true that they were arrested on the Haor and that the appellants Omar Ali, Nazib Ali and Darog Ali were arrested in Dharmapasha Bazar and that they have been falsely implicated.
Further case of appellant Hura Gazi was that he was arrested from his own house and that no article was seized from his possession.
Appellant Nazib Ali's version was that he lived at the house of his father‑in‑law and that he came to bring his daughter from his father and was arrested in the Dharmapasha Bazar when he was engaged in repairing umbrella.
The version of appellant Tara Mia is that he lived at Bhairab; came to the boat of his father‑in‑law Darog Ali to take his wife and was arrested in that boat.
The case of appellant Chand Mia was that he was a T. B. patient and an old man and that after going to Sylhet for medi cine on leaving his boat at Sunamgunj, he returned to Sunamganj as the doctor demanded high fees and further that he bought articles worth Rs. 30.00 from Sunamganj town and took the same on boat to Kurutala Ghat and that he was arrested there after he went to bed.
The prosecution examined 302 P. Ws., and tendered ten P. Ws. out of them 107 P. Ws. deposed as to 22 dacoities that according to the prosecution took place in different watery sheets of Mymensingh and Sylhet districts. 73 P. Ws. deposed as to association.
Mr. Abdul Hamid, the learned counsel appearing for the appellants has taken us through the long judgment and the voluminous evidence of these 302 P. Ws. in meticulous detail. We allowed the learned counsel to read the whole evidence as the majority of the appellants remained undefended at the trial.
The learned counsel's contention in substance is that these men are innocent and that if they associated together, is was not for the habitual commission of dacoity but because `.hey, belonged to the same Cotra (caste) of Gains and that the identification of these men after such a long period as habitually committing dacoity could not be possible and that the approver in this case, namely, Moharam Ali being himself not a very good character, the value of his evidence is nil and that such evidence cannot be improved by corroboration in material particulars.
Mr. Hamid has also argued that the confessional statement of Moharam Ali made when he was in police custody could not be accepted; seizure list witnesses who are many come from far off places; no F. I. R. in many cases; some witnesses were in the nature of accomplices having kept silent for all these years; that in cross‑examination some witnesses had stated that the evidence of dacoity dropped with the advent of Martial Law and not because of arrest of these men. Mr. Hamid has cited the decisions in Bachchu v. Emperor (32 Cr. L J 162), Kedar Sunder and others v. The Emperor (16 C W N 69), Sarwan Singh Rattan Singh Harbans Singh Bhan Singh v. State of Punjab (58 Cr. L J 1014) and Nebi Dusadh v. The State (A I R 1956 Pat. 39), Kallu v. Emperor (18 Cr. L J 456), Kartara v. Emperor (A I R 1934 Lah. 535), Roshen Behari v. The State (58 Cr. L J 678), Empress v. Naba Kumar Patnaik and others (I C W N 146) and Ladu Molla v. Emperor (I L R 52 Cal. 595).
Mr. Abdul Hakim, the learned Deputy Legal Remembrancer appearing for the state has cited the decisions in the Public Prosecutor v. Bonigiri Pottigadu and others (I L R 32 Mad. 179), Murli Brahman and others v. Emperor (26 Cr. L J 1412), The Queen v. Mooktaram Sikdar (23 W R 18) Bachchu v. Emperor and Ledu Molla v. Emperor. These last two decisions have been relied upon by both sides for different purposes.
The learned Deputy Legal Remembrancer's contentions in substance are that the learned trial Judge has not relied on the confessional statement at all and that the prosecution has been able to prove its case independently of the confession made by the approver Moharam Ali. He has also urged that an approver is a competent witness and his evidence having been corroborated on material particulars by independent evidence that alone is sufficient for justifying the conviction; that the two ingredients of section 400 of the Penal Code, namely, that of belonging to a gang and such a gang being associated for the purpose of having habitual commission of dacoity have been established by direct evidence as well as by proved facts from which those can be reasonably inferred; that it is not necessary to bring evidence of the same degree of particularity in the present case under section 400 of the Penal Code as in the case of specific charge under section 395 of the Penal Code; that the evidence of participation in a given dacoity is evidence both of his associa tion with the gang and of the object in such association; that association is the gist of the offence and this could be proved by direct evidence or by facts from which it could be inferred.
We may now examine the particulars of the dacoities which are as follows:‑
(1) Dacoity at Huliar Haor on 23‑9‑1955:‑
Witness in support of this dacoity being P. Ws. 47 to 51 and 53 and witnesses claiming recognition are P. Ws. 48, 49 and 50. P. Ws. 48 and 49 stated that they recognised approver P. W. 1 Moharam Ali; while P. W. 50 stated that he recognised appel lant Mansur Ali, Nazib Ali and even identified the offenders in the T. I. Parade held on 15‑8‑1959.
(2) Dacoity at Tagor Haor under the Dharmapasha Police Station:
This Haor is also known as Satkuriar Haor. According to the prosecution three dacoities took place in. this Haor in course of the same night on 6‑10‑1958‑one of these dacoities took place in the boat of P. W. 87.
(2A). Dacoity in the boat of P. W. 91:
Witnesses proving the dacoity are P. Ws. 89, 91, 92, 73, 96, 198 and 302. P. W. 91 stated that he recognised appellants Yad Ali and Hura Gazi and even identified them in the T. I. Parade. P. W. 280, the Magistrate also stated that this witness identified those accused persons in the T. I. Parade held by him on 27‑8‑1959.
(2B). The other dacoity was in the boat of P. W. 93 and others:
P. W. 93 stated that he recognised P. W. 1 Moharam Ali in that dacoity and identified P. W. 1 Moharam Ali in the T. I. Parade which was supported by P. W. 280, the Magistrate holding the T. 1: Parade on 27‑8‑1959.
(3) Dacoity in flat steamer named "Landoor" in Surma river dated 15‑4‑1958.
Witnesses proving this dacoity are P. Ws. 167 to 173 and 262.
P. W. 170 a crew of the flat steamer, identified appellant Manwar Ali as taking part in the dacoity in the flat and identified the appellant in the T. I. Parade held by P. W. 303, the Magistrate on 29‑11‑1958. P. W. 167 also supported the evidence of P. W. 170 about the incident on the flat Landoor. He stated that on 15‑4‑1958 their flat was on the way to Narayanganj from Chhatak of Sylhet district and on that date they reached on the spot in the Surma river under Sukdebpur village and that they reached there at Magrib prayer time and halted there. He further stated that P. Ws. 168, 169, 170, 171 and 261 were there as crews of that flat. Their evidence was to the affect that at about 12 p. m. on the night of 15‑4‑1958 the dacoits came being armed with Ramdaos, rulers and sticks asserting that they were members of the police staff: P. W. 167 stated that his cabin was closed from inside and that the dacoits broke the glass panes of the window of the cabin, entered into the cabin through the window, throttled the witness, pressed on his chest and gave blows on his legs with rulers. He also stated that the dacoits took away money and other articles.
(4) Dacoity at…
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