P (PLP)

The prosecution story is as follows :‑

On the night between the 7th and the 8th January 1949 at about 10 o' clock two persons Jamal Shah and Sadiq Shah entered into the house of the deceased, Said Muhammad, ‑after knocking at the door. They purchased some goods and requested the deceased to show them the way to Tundar. When they went out of the house alongwith the deceased two other persons Muhammad Shafi and another whose name is not known, came into the house and assaulted the wife of the deceased, gagged her mouth and took away Rs. 210‑ which were kept in an earthen pot. From outside three shots were fired. After the robbers had left Muhammad Shafi, brother of the deceased was called out by Mst. Abdul Bee, wife of the deceased and he came out of the house after breaking the door because his door as well‑as the doors of other houses were all of them chained from the outside. They heard the voice of the deceased crying. Muhammad Shafi as well as other persons went to the spot where the deceased was lying. He informed them that he had been fired at by Jamal Shah at the instance of Sadiq Shah. It appears that the matter came to the notice of the military officers on the 8th January 1949 i.e., next day and it was ordered by the Officer Commanding that a Court of enquiry be constituted and the matter relating to the dacoity enquired into. The appellants made a confession before Lt. Sikandar Khan. Afterwards the case appears to have been handed over to the civil authorities although no order is to be found on the file showing the stage at which such an action was taken by the military authorities. In this case the prosecution relies upon three kinds of evidence.

1. The dying statement of the deceased.

2. The confessions made by the appellants before Lt. Sikan dar Khan.

3. The identification of Muhammad Shafi made by Mst. Abdul Bee at the identification parade held by the military authorities. With regard to the first piece of evidence no person has been alleged to have witnessed the fell deed. Reliance is placed by the prosecution on the evidence of persons to whom the statement was made by the deceased just before his death. That statement was not put into writing. The F. I. R. made by Lal Din, Choukidar, which is dated the 11th January 1949 does not contain the name of any of the appellants or any other person who is supposed to have committed the offence of dacoity or murder. This Lal Din, Choukidar appears to have reached the spot where the murder had been committed soon after the occurrence. If such a statement as is now alleged by the prosecution had been made by the deceased this Lal Din, Choukidar would certainly have come to learn about it even if it be supposed that he was not present at the time when the statement was made and in that case he would have made a mention of it in his report which was made after three days i.e., on the 11th January 1949. This report has beets exhibited as Exhibit P. A. Another report is on the file which was made by Muhammad Ramzan. But it was not exhibited and, therefore, it cannot be taken into consideration. Moreover that report contradicts the allegations that were afterwards made before the Court. From that statement it appears that four persons had entered the house together and that two of them are the appellants. However as that report has not been properly exhibited it cannot be taken into consideration at all. With regard to the second point it is quite clear that the confessions recorded by the military officer were not recorded in accordance with the provisions of the Criminal Procedure Code. Those confessions were afterwards retracted by the appellants before the Sessions Judge. It has not been shown that Martial Law Code authorises the taking down of confessions in the manner in which they had been recorded. The appellants stated before the Sessions judge that they had been given a beating and were forced to make such a statement. From the prosecution evidence it appears that after the making of those confessions their 'faces were blackened and they were given a beating. From these facts it can be presumed that probably before such confessions were recorded the appellants were threatened and treated harshly by the military officers. However, as the confessions were not recorded in accordance with the provisions of Criminal Procedure Code they cannot be taken into consideration. The learned Assistant Advocate‑General has argued that these confessions may be considered as extra judicial confessions. In our opinion such confessions cannot fall into that category. When persons are acting in the capacity of Judges, the procedural law should be followed strictly. Mst. Abdul Bee identified Muhammad Shafi of course but at the time of identification she did not state that he was the person who had entered into her house for the purpose of commit ting, robbery and that he Along with one other unknown person had robbed her of the money. The learned Assistant Advocate‑General' admits that she had on previous occasions seen this Muhammad Shaft: She was, therefore, in a position to point him out as a person known to her. Unless she had made a statement to the effect that he was one of the robbers the identification of this person cannot be considered to prove that he was one of the persons‑who had committed the offence of robbery or dacoity. A little time after the' occurrence these persons were arrested by the military authorities. . No money was recovered from them. No other person has come forward to state that he had seen any of the accused entering the house of the deceased and committing the offence of robbery or dacoity. In the absence of such evidence it cannot be considered that the offence of dacoity, robbery or murder has been brought home to any of the appellants. The fact that military authorities began to make the enquiry with regard to the case soon after the occurrence and the fact that they caught hold of the appellants shows that a very strong doubt exists against these appellants but this in itself is not sufficient to convict the appellants of, the offences of murder and dacoity. The rifle in the possession of Jamal Shah was examined and it was found that it had not been fired. The ammunition .vas found on check correct. No cartridge was missing. It has been argued that the appellant, Jamal Shah or his companion might have come into possession of extra ammunition. But if so the fact ought to have been proved by reliable evidence. Such suspicions cannot take the place of proof. For the reasons mentioned above we are of opinion that there are mere suspicions against the appellants and that no offence against them has been proved. The appeal of both the appellants is accepted. The order of their conviction and sentences passed by the Sessions judge are set aside and‑the appellants are acquit ted. Warrant of their release from Jail to be issued. K.M.A/A.H Appeal accepted.