RASOOL BAKHSH Versus STATE

TUFAIL ALI REHMAN, C . J.------ According to the prosecution. case as et out in the F. I. R. the first information Abdul Sattar and several, of his relations had taken soma land on lease from Government abort 3 years before the incident in Deb Bhanar at a distance of about 20 miles from the Bukbshapur Police Station in District Jacobabad. About 10 or 12 days before the date of the incident he himself, accompanied by his brother Iddan, his cousins Khaliq Dino, Hamid, Sachal comp and Mir Ali moved to the land for the purpose of ploughing it and construct ed a kutcha but upon it for their residence. Of these persons Mir is the one whose murder is the principal offence of which the appellants have been con victed while all the other persons are the sole eye‑witnesses of the crime. On the 13 th October, 1971 the about sun‑set all the prosecution party were taking their meal when all of a sudden Dine persons appeared armed with guns, hatchets and lathls. These persons were previously known to them and were identified to be the present appellants and one Shah Ali, also originally an accused person with the appellants, who was murdered before the case could be tried. The accused party surrounded the prosecution witnesses and claimed that the land was theirs and warned them that they should all remain sitting. Due to fear the witnesses remained sitting and were all tied up while Shah Ali and the appellant Rasul Bukhsh each fired a gun at Mir as a result of which he died. Shah Ali and the appellants Jiand, Shamo and Abdur Rashid then took away the dead body of Mir on a bullock cart and returned back to the scene soon after without the dead body and remained on guard, on the witnesses until dawn. At dawn they released the first informant and prosecution while the remaining, three witnesses Khalid Dino. Hamid and Iddan ,were kept tied and guarded. The two released witnesses then went to their house and related the story to their relations and upon their advice went and lodged F. I. R. at the Bukhsapur Police Station on the 15th October at 4‑00 p.m.

2. In the meantime, however, it is alleged that Shah Ali lodged a first information report at 1‑00 a.m. that very night at the Ghotki Police Station in response to which P. W. Ghous Bakhah, the Head Constable Incharge accompanied him to the scene; where he found the two witnesses bound and the appellant Ghoush Bukhsh, Rasool Bakhsh and Bhuro standing guard over them. According to this witness his investigation into the crime reported to him showed that the witnesses were innocent and he, therefore, released them. The investigation of this crime was then take up by the S. H. O. Bukhshapur. Abdur Razzaq who eventually went up all the appellants and Shah Ali to Court on various charges including murder, membership of an unlawful assembly and an offence under section 201 of the Pakistan Penal Code. The learned Sessions Judge, Jacobabad who tried them has found all of them guilty of various offences the principal offence being one of murder for which he has sentenced them to imprisonment for life and a fine. It is against these convictions and sentences that this appeal has been brought.

3. The dead body was not discovered until the 16th October, 1971 when it was found from the river and upon post‑mortem examination was discovered to rave two lacerations, which were clearly the result of fire‑arm injuries. 18 pellets being recovered from the body and a hatchet injury which, however, was a post‑mortem injury. The doctor who, examined the dead body stated that it was composed and also disfigured. Upon the basis of this evidence learned counsel for the appellant body could not have been identified as it is claimed to have been identified by the prosecution witnesses, to be that of Mir. Now the medical evidence is by n means clear that the body was not in a recognisable condition but in any view of the medical evidence I am unable to hold that this is fatal in the prosecution case for law does not require that the dead body of the murdered man must necessary be produced all that a murder and, therefore the death of particular person should be established. The fact of such a death is of course a question of fact which has to be proved as any other question of fact by admissible evidence. There was the evidence of all the eye‑witnesses that Mir actually died before his body was taken away and even the first information report categorically speaks of the dead body. It is nobody's case that Mir has since been seen alive and I therefore see no reason to doubt the evidence, at least upon the question that Mir actually died on tile spot as a result of gunshot injury sustained by him. Quite apart from the fact, therefore, that the defence might well have put ques tions to the doctor to ascertain whether the body was really un‑ identifiable. 1 think the fact of this is true and that therefore nothing depends upon the state of the body as found by the doctor.

4. One of the main questions which the learned Judge considered was whether the prosecution party were indeed in possession of the land. He held that thy were. Presumably this was for the purpose of seeing whether the culprits would have a right of private defence but, while I propose presently to consider the evidence upon the question, it is worth while stating that it was not the case of any of the appellants that they were actually present at the scene at the time in question at all. No question of private defence really arose and the matter could veil have been left at that. Instead the learned Judge came to a finding in favour of the prosecution on the point of possession on evidence which is at least dubious. It was the prosecution's own case that the land in question had been allotted to the accused party by the Assistant Commissioner and successive appeals by the prosecution party to the Deputy Commissioner and the Commissioner had failed. Their claim to possession is based upon the allegation that they have taken the land on lease some three years or more before the incident and despite the continued to be in possession. The tapedar also stated precisely the same facts. The prosecution, despite their allegation that they were in possession, admittedly came to the land upon their own show in only some 10 or 12 days before the incident and built a kutcha nut thereon. In these circumstances I am inclined to think that, were it necessary to decide the point could not safely be held that the prosecution party were in possession. The learned Judge seems to think that the matter was concluded by the fact is he took it, that the accused did not even claim to be in possession. This I think, is hardly a fair reading of the statements of the accused persons. They said in as many words that the land had been allotted to them and that is repeat appeal of the prosecution party had failed. It is true that they did not expressly say that they were in possession but it was not expressly put to them either that the prosecution party claimed to be in possession in the view, however, that I take of the evidence in this case I do not think this question needs further discussion.

5. Now admittedly in this case the sole testimony against the appellant is of the witnesses whom I have mentioned. Admittedly also all these witnesses are clearly related Inter se and the appellants and Shah Ali were also closely related inter se. There was clearly enmity between the partied over this very land besides there were other criminal cases also pending between the parties. It was thus a case of deeply interested and hostile testimony nor was it quite safe to say that at an rate clue witnesses were persons naturally expected to be present at the scene for such a finding would depend upon possession.

6. There are to my mind several improbabilities in the prosecution case besides. In the first place it is difficult to see why if they murdered Mir they would not attack the other witnesses also. At any rate one would have expected that having committed the murder they would escape as soon as possible. Instead it is claimed that they all mounted guard upon the witnesses until dawn. It was expressly stated in the F. I. R. that Shah Ali who was one of those who took the cart away returned and that thereafter all the accused persons remained on guard until the morning. If this is so then it is impossible trot Shit All could have lodged the F. I. R, at 1‑20 a,m, as a result of which Head Constable. Ghous Bukhsh came to the scene. In order to explain this the first informant in his deposition in Court claimed that after the party had returned to the scene Shah Ali left. He was however con tradicted in cross‑examination with his F. I. R. in which, he admitted, that

7. Whether or not Shah Ali remained on guard all the others did so and it is difficult to see, therefore why In tie morning they should release two of the witnesses but not the remaining. The F. I. R. which Shah Ali had got recorded was or, of theft and of course it may be argued that in order to support the story it was necessary to produce before the police some of the witness under guard and to leave some of their own companions on guard. If that be so then also shoe was no sense in flowing two of them to go for clearly that would give an opportunity to them to go and lodge their own report with the police. Some argument took place in the trial court before me that the first information report filed by Shah Ali could a not be used In evidence and the learned Judge agreed as I do. Nor have I now used it as such. I am only using the fact that a first information report was recorded which is both a relevant and admissible fact. The contents of the F. I. R. and their truth or falsity are not matters upon which I am commenting.

8. It is the said that the Head constable came to the conclusion that the case was false and this seems to the to be a remarkable conclusion for him to have reached so early. Particularly when he knew that witnesses had got to report the fact of murder it seems gill the more improbable that he should have taken such a decision. All in all the story in regard to the finding of the witnesses on the spot in a tied condition or the capture of some of the appellants thereafter does not impress me .

9. Upon the basis then that the evidence in the case consisted only of the occular testimony of inimical witnesses I do not think it will be safe to have a conviction upon that testimony alone without corroboration. Unless corroboration be fount, in the capture of the accused persons at the scene which will be available only against those persons. then, is admittedly no c corroboration in this case, as to that capture I have state my reasons for doubting the; evidence to the result I think it is unsafe to sustain is any of the convictions in this case and I am, therefore, of the opinion that this‑appeal, must be allowed and all the convictions and sentences set aside.

10. After the hearing in this appeal was over both my learned brother and I came to the conclusion which 1 have stated above and accordingly gave judgment in favour of the appellants ; the above is a record of my reasons for having so upheld.

Appeal allowed,