P L D 1962 (P (PLP)

(3) Mazharali Shah got the house of Dr. Fateh Muhammad searched for the theft of a bicycle stolen from Sadikabad. (4) A cow of Lorasp was stolen but the police did not record the first information report. (5) Ghulam Kadir Kato filed a case against Ajaib Khan and his father Dr. Fateh Muhammad in Sadikabad under section 406, P. P. C. It is the last case which has given rise to the present incident. On the complaint filed by Ghulam Kadir Kato at Sadikabad, bailable warrants were issued by the Tahsildar and the Second Class Magistrate of Sadikabad. An endorsement on these warrants was made to show that the warrants were not served. On the strength of this endorsement non‑bailable warrants were issued and the same were sent to the District Magistrate at Sukkur for execution. The District Magistrate, Sukkur endorsed these warrants to the Mukhtiarkar at Ubauro for execution by, the concerned police. The Mukhtiarkar is said to have endorsed these warrants to S. K. O. Ubauro who is said to have deputed Head Constable Ibrahim Shah for the execution of the said warrants. Head Constable Ibrahim Shah took along with himself Head Constable Ismail and went to Ranwati Outpost from where he took Niaz Muhammad Constable with himself. He had also taken Allah Rakhio and Allahbux Khoso as the Mashir with himself. This party of consisting of five persons was accompanied by Mazharali Shah and they all went to the village of Dr. Fateh Muhammad on 10th June 1959 at about 7 or 8 a.m. The case of the prosecution is that all these persons entered `Haveli' of Dr. Fateh Muhammad where `Purdahnashin' ladies were also living. They are said to have disgraced the ladies in the `Haveli' and dragged both the female as well as the male members out of it and brought them into the `Otak'. The male members who consisted of Fateh Muhammad, Lorasp and Ajaib Khan were also maltreated. In the meantime, Ajaib Khan saddled his mare and was taking it by reins to ride on it and go to Sukkur and have an appeal or revision filed against the order passed in the proceedings under section 107, Cr. P. C. against Mazharali Shah and others. On the instigation of Mazharali Shah and Ibrahim Shah, Head Constable Muhammad Ismail and Allah Rakhio are said to have fired at Ajaib Khan. The shot fired by Muhammad Ismail is said to have hit Ajaib Khan on his head with the result that he fell down and died on the spot. Dr. Fateh Muhammad on seeing the death of his son proceeded towards the place where his dead body was lying on which Mazharali Shah and Ibrahim Shah instigated the police party to shoot at Dr. Fateh Muhammad. Ibrahim Shah is also said to have levelled his rifle at him. Lorasp, who was standing there, caught hold of the rifle of Niaz Muhammad which rifle was also aimed at Fateh Muhammad and importuned the police officers to spare his father. In the struggle that ensued between Niaz Muhammad and Lorasp, the prosecution case is that the rifle held by Niaz Muhammad got deflected. The case of the prosecution also is that by accident if also got fired and the shot fired, from it hit Ibrahim Shah, Head Constable, which resulted in his death. Fateh Muhammad and Lorasp, were then arrested arid taken to the Ubauro Police Station Where first information report Exh. 8‑E, of Muhammad Ismail was recorded on the same day at 11‑45 a.m.

4. The police during the course of the investigation arrested Lorasp from Mirpur Mathelo Police Station on 11th June 1959 at 4 a.m. with a rifle and bullets on his person. His confession was recorded on 11th June 1959 at 11‑30 a.m. Fateh Muhammad's confession was also recorded. The counter first information report, Exh. 9‑B, of Fateh Muhammad was also recorded at Ubauro Police Station on 13th June 1959 at 11 a.m. After these. two cases were investigated the police held the case filed by Fateh Muhammad to be, false on, the basis, of ,which "B" Summary was granted. Before the prosecution against Fateh Muhammad for filing a false complaint could be lodged, Lorasp filed a direct complaint in the Court of the Sub‑Judge and First Class Magistrate, Ghotki, on 7th August 1959; Direct complaint is Exh. 5‑B. After the preliminary inquiry was held, process was issued against the appellants and Allah Rakhio. Both the counter cases were then, committed to, the Court of Sessions, Sukkur, where the accused in the case initiated on the first information report of Muhammad Ismail were acquitted and the accused in the case filed by Lorasp were convicted as stated above.

5. The appellants, when questioned, denied the allegations made against them, and alleged that the case was false. The statement of Mazharali Shah was that he was not in the picture at all and he had been run in on account of the enmity that Dr. Fateh Muhammad had with him. The case put forward by the other two appellants was that the case filed by the prosecution was false. According to them, Ibrahim Shah, Head Constable, was killed by Lorasp and that they had fired in self‑defence at Lorasp and not at Ajaib Khan. No witnesses in defence were examined.

6. The question whether Ajaib Khan received injuries on account of a gun‑fire and died on account of it is not disputed. The evidence of Dr. Muhammad Ali, Exh. 16, also shows that there was one entrance wound more or less circular about " in diameter with contused margins on the neckfracturing the bone there. The exit wound was fond to be zig zag with a big hole about 4" in diameter fracturing the bone. The brain matter was also noticed to be pouring out and the left eye was found missing. The evidence of the witnesses also establishes conclusively that the death of Ajaib Khan was on account of gunshot fire.

7. The question that needs to be resolved in this appeal is whether the appellants committed house trespass, in the manner as alleged by the prosecution and caused injuries to Ajaib Khan which resulted in his death and also caused injuries to Fateh Muhammad. The learned Judge while dealing with this case has devoted considerable part of his judgment to the non‑bailable warrants that were received from the Court of the Tehsildar, Sadiqabad, for service on Fateh Muhammad and his son. The view taken by the learned Judge is that there were certain erasures in the endorsements made on those warrants authorising the police to arrest persons mentioned in them. The erasures consist in, the substitution of " Police concerned by S. H. O. Ubauro". No evidence has been led as to who was responsible for this manipulation. The learned Sessions Judge's conclusion despite that has been that the manipulation in the indorsement on the warrants was the result of a conspiracy between several persons including Mazharali Shah to have the warrants entrusted to Ibrahim Shah, Head Constable, for service on the persons mentioned in them. It is not the case of the prosecution that the warrants were received by Ibrahim Shah for execution on account of conspiracy hatched by him with others. The bare fact with which we have to deal with is that Ibrahim Shah came to be in possession of, the non‑bailable warrants, Exh. 9‑D, and he was required to execute them on the persons mentioned in them. The case in fact hinges not on the manipulation on the warrants but on the truth or otherwise of the evidence of the prosecution witnesses who have been examined in the case. The prosecution have based their case mainly on the evidence of Lorasp, P. W. 2, Mst. Hidayat Khatoon, P. W. 3 Jamroze, P. W. 4 and Fateh Muhammad, Exh.

11. Fateh Muhammad's evidence has been brought on record under section 33 of the Evidence Act as he had died during the course of the, trial. The evidence of these witnesses is that the police party including Mazharali Shah entered their Haveli and disgraced their women and dragged them out and brought them in the Otak. Their evidence also is that without the warrants of arrest having been shown to them, they were told that they had come there to arrest them. Their evidence also is that after they were all brought out in the Otak, Ajaib Khan saddled his mare and was leading it by its reins with a view to ride on it at some distance to go to Sukkur and file a revision or an appeal against the order passed under section 119, Cr. P. C. in favour of Mazharali Shah. Their evidence also is that Mazharali Shah and Ibrahim Shah then instigated others on which Muhammad Ismail and Allah Rakhio fired at him, which resulted in his instantaneous death. Their evidence also is that Niaz Muhammad was thereafter instigated by Mazharali Shah and Ibrahim Shah to fire at Dr. Fateh Muhammad. Ibrahim Shah also, according to them, levelled his rifle at him. Lorasp, on the evidence on record, caught hold of the rifle of Niaz Muhammad and entreated them to spare his old father. Their evidence consistently is that on Lorasp's catching hold of the rifle of Niaz Muhammad, it got deflected and in the struggle that ensued between Lorasp on the one hand and Niaz Muhammad on the other, the rifle got fired and it hit Ibrahim Shah, which resulted in his death. Out of the witnesses mentioned above, Dr. Fateh Muhammad is the father of Lorasp and Mst. Hidayat Khatoon is the wife of Fateh Muhammad. Jamroze is their servant. It is therefore an admitted position that the, witnesses examined in the case are all interested. It is also admitted that Fateh Muhammad and Mazharali Shah were at logger heads since a very long time.

8. We have detailed above the cases filed between them at different stages. The evidence of the Superintendent of Police and others who have been examined in this case also shows that the dispute between Mazharali Shah and the witnesses was long drawn out and had been the subject‑matter of several cases between them. The evidence therefore is obviously interested and inimical and under these circumstances it will be very difficult to found the conviction of the appellants on their evidence without any evidence in corroboration. The learned Assistant Advocate‑General who has appeared for the State has conceded that there is no evidence of any sort or kind which can be construed to be evidence in corroboration of the evidence of these witnesses.

9. Apart from that, the theory put across by the prosecution is that Ibrahim Shah and others were in conspiracy and the object of the conspiracy was to disgrace the womenfolk living with Dr. Fateh Muhammad and to humiliate Dr. Fateh Muhammad and his sons. This object could well have been achieved by arresting Dr. Fateh Muhammad and his son and taking them in hand cuffs. It is difficult to believe that being armed with non‑bailable warrants of arrest of Dr. Fateh Muhammad and his sons their thirst for vengeance would remain unquenched with the arrest of these persons and that they would go further to be imprudent enough to trespass into their `Haveli ' and disgrace the innocent women.

10. The other point which appears to be difficult to swallow in the case is the murder of Ibrahim Shah. The case of the prosecution as gleaned from the evidence of the prosecution witnesses is that on firing at Ajaib Khan and on killing him the police party did not appear to be satisfied and they, therefore, instigated the constables to kill Dr. Fateh Muhammad who was proceeding towards the dead body of his son Ajaib Khan. It is more difficult to believe that Ibrahim Shah and Niaz Muhammad levelled their rifles at Dr. Fateh Muhammad but none of them fired his rifle. The evidence of Lorasp and others that Lorasp caught hold of the gun of Niaz Muhammad and struggled with him to prevent him from firing at his old father will not explain Ibrahim Shah's remaining quiet with his rifle being levelled at Dr. Fateh Muhammad. It is still more difficult to believe that in the struggle that ensued between Lorasp and Niaz Muhammad the rifle of Niaz Muhammad got deflected and also got accidentally fired and the fire discharged from it hit Ibrahim Shah killing him. All these coincidences are very difficult to be re‑conciled. The evidence of the witnesses, therefore, has to be looked into with greater circumspection when circumstances of this kind are deposed to by them. The learned Assistant Advocate‑General for the State has also found himself helpless and has very candidly conceded that the story put forward by them in respect of the murder of Ibrahim Shah is nothing more than a cock and bull story which according to him is not easy to accept.

11. Mr. Tufail Ali, the learned counsel for the appellant Muhammad Ismail, made an application on 13th October 1961 requesting us to examine the witnesses mentioned in that application under section 428, Cr. P. C. The ground on which this application was based was that Lorasp was arrested on 11th June 1959 at Mirpur Mathelo Police Station with his licensed rifle and bullets on his person. According to him this rifle along with the empty shells secured from the scene of offence had been sent to the Ballistics Expert and his view in the matter was that three empty shells, Articles C/1, C/2 and C/3; appeared to have fired from the rifle secured from Lorasp. The documents connected with this evidence had been produced by the appellant Ismail, with his statement in Court but the evidence relevant on the subject had not been examined. We therefore considered it necessary that two witnesses, Mr. Abdul Mastan Ballistics Expert and Qalandar Bakhsh, the S. H. O., should be examined and we passed such an order on 13th October 1961. Consequently, Abdul Mastan Khan, the Ballistic Expert, and Qalandar Bakhsh, the Sub‑Inspector of Police, were examined by its on 31st October 1961. The evidence of Qalandar Bakhsh unmistakably shows that rifle No. NA 383 belonged to Lorasp and stood on his licence. His evidence further shows that this rifle and bullets were secured from Lorasp at the time when he was arrested on 11th June 1959 at Mirpur Mathelo Police Station. He had produced mashirnamas which have been brought on record as Exh. B and Exh. 6 to substantiate this. It is not disputed that rifle No. NA 383 did not (sic.) belong to Lorasp. The evidence of Mr. Abdul Mastan Khan, Ballistics Expert, discloses that this rifle was sent to him along with certain empty shells and the empty shells (Art. C/1, C/2 and C/3) were found on examination to have been fired from this rifle. With the empty shells having been secured from the scene and with the evidence that they were fired from rifle No. NA 383, which belonged to Lorasp, we cannot escape from the conclusion that they were fired from rifle No. NA 383 on the date of the incident.

12. The case of the appellants is that on the warrants of arrest being shown 'o Dr. Fateh Muhammad and others, they resisted on the service being made no them. They also resisted against being handcuffed. Their case further is that Lorasp fired his rifle at Ibrahim Shah on account of the apprehended humiliation, which he expected on the service of, warrants being made. Their case also is that they fired back at Lorasp in self‑defence. If the theory of the appellant is not proved at any rate the evidence of Dr. Mastan and the evidence of Qalandar Bux, S. I. P., makes the story of the prosecution completely doubtful specially when Fateh Muhammad and Lorasp were accused in the counter case. We have considered the evidence on the record and given our best attention to it. The learned Assistant Advocate‑General has also not supported the case of the prosecution. We are, therefore, of the view that the evidence oil the record connecting the appellants with the offences with which they were charged is not free from doubt. We, therefore, give them the benefit of doubt and accept their appeals and acquit them. The appellants Mazharali Shah and Niaz Muhammad are on bail and their bail bonds will stand cancelled. The appellant Muhammad Ismail is in Jail and shall be released, forthwith if not required in any other case. K. B. A. Appeal accepted.