P (PLP)

Sher Bahadur, Ghulam Haidar and sultan, the three brothers, appeared before the police on 22nd August 1950 and were taken into custody. Nur Muhammad and Gulab approver appeared on 23rd August 1950 and they were also arrested. Sher Bahadur made a statement to the police and led them to the hillock where the body of the deceased was alleged to have been burnt. A pair of shoes Exh. P. 4, two buckles Exh. P. 4/1 and P./2, a piece of tiara Exh. P. 5, some burnt pieces of cloth Exh. P. 6, a ring Exh. P. 8, some bones Exh. P. 9, scorched dheengris Exh. P. 10, burnt twigs and stones Exh. P. 11 and burnt earth Exh. P. 12 were seen and taken possession of vide memo. Exh. P. K. The learned Sessions judge has correctly held that the small pieces of burnt cloth are hardly identifiable, but the chappals and the ring were identified as belonging to the deceased. The bones, Exh. P. 9, were of a human being, according to the evidence of Dr. S. M. Afzal, Professor of Anatomy, Ii. E. Medical College, Lahore, and consisted of (1) A partially articulated spinal column with broken ribs and right innominate and sacrum. (2) Left innominate and left femur. (3) Skull. (4) Lower jaw with molars. (5) A tibia without ends. (6) A fibula without ends. (7) Two separate ribs. (8) One atlas, an axis and a cervical vertebra.' (9) A broken scapula. Sher Bahadur had knowledge about the presence of these bones at this particular place which is not a cemetery or a crematorium. Obviously, therefore, the human being whose bones were found here, at the pointing out of Sher Bahadur, was either killed here or his body was removed to this place in order to cause the evidence of homicide to disappear with the intention of screening the offender. The presence of burnt clothes, dheengris twigs, stones and earth excludes the possibility of his having died‑ a natural death here. The knowledge regarding the presence of the skull and other bones at this place could have been acquired by Sher Bahadur if he had taken part in homicide or in removing the body ; or if he had seen others committing the crime, or by his being told about it. If he had acquired this knowledge in any of the two last mentioned innocent ways, it was up to him to say so. It is laid down by section 106, Evidence Act, that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. Sher Bahadur, when asked by Court whether he had pointed out to the police the place from where the skeleton and some burnt articles were recovered, merely denied he fact and gave no explanation whatsoever. The fact is, however, satisfactorily proved and the least damaging inference that can be drawn from it against Sher Bahadur is that he, knowing or having reason to believe that an offence had been committed, caused evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment. I would, therefore, convict Sher Bahadur under section 201, Pakistan Penal Code. The offence in this case was culpable homicide and, in the absence of any proof that it was covered by any of the Exceptions, it amounted to murder which is punishable with death. The sentence under section 201, Pakistan Penal Code; can, therefore, extend up to seven years and I would give Sher Bahadur the full sentence of seven years' rigorous imprisonment. I would set aside his conviction and sentence under section, 302, Pakistan Penal Code. The conviction of Ghulam Haider by the trial Court is based on the evidence of the approver which was considered to have been corroborated by witnesses who had seen him going with the other accused and the deceased on the night of the 13th August 1950. I have not put any faith in the evidence of the approver or the witnesses who said that they had seen Ghulam Haider and the other appellants going with the deceased. The evidence relating to the motive does not prove Ghulam Haider's guilt. A rifle is alleged to have been recovered from his possession but there is nothing to show that this rifle was used in the commission of this crime. There is no other evidence to prove the offence of murder against him. I would, therefore, set aside his conviction under section 302, Pakistan Penal Code, and acquit him. As regards Sultan, the only evidence is that he was seen with the other accused and the deceased on the night of 13th August 1950, in his village, by witnesses whom I have not believed and further that he too had motive, like his brothers Sher Bahadur and Ghulam Haider, to kill Muhammad. I do not consider this evidence to be sufficient for his conviction for any offence. I would accept his appeal and acquit him. Nur Muhammad appellant made a confession before Mr. A. D. Cheema, Magistrate First Class, Rawalpindi, on 28th August 1950, 15 days after the occurrence and 5 days after his arrest. The confession was retracted and needs corroboration before it can be safely acted upon. The approver has stated that lie gave information to the police only after he had been assured that he would be made an approver. It seems that the police were rather free with promises of pardon which they were not authorised by law to tender. It does not seem unlikely that Nur Muhammad also made the confession after lie had been assured by the police that he would be made an approver. The confession would, in that case, be irrelevant under section 24, Evidence Act. In any case, I am not inclined to convict Nur Muhammad on his retracted confession without any corroboration. It is said to be corroborated by the production of a country‑made pistol and some bullets by him from his house. Like the rifle alleged to have been produced by Ghulam Haider, this pistol too has not been stated by the approver to be the same as that carried by the accused at the tint of the murder and the bones and other articles recovered from place pointed out by Sher Bahadur do not show that any fire‑arms had been used. The other corroborative evidence is that Nur Muhammad was also seen with the other appellants and the deceased on the night of the occurrence. I do not believe this evidence and would, therefore, set aside the conviction of Nur Muhammad and acquit him also. I would not confirm any sentence of death and, except for Sher Bahadur whom I would convict under section 201 and sentence to seven years' rigorous imprisonment, I would accept appeal of all the other appellants and acquit them. MUHAMMAD MUNIR, C. J.--I agree A.H Appeal accepted in major part.