P L D 1963 (W (PLP)

3. In the meanwhile, on 22‑6‑1960 a P. W. D. Darogha by name Ali Bux P. W. 5 found a dead body afloat in the Khipro Wah regulator and immediately proceeded, to inform the police who recorded his statement as per Exh. 13 at 2 p.m. on that day. Head Constable Muhammad Ismail P. W. 10 after recording this statement Exh. 13 accompanied Darogha Ali Bux to the Kathoro bridge and saw a decapitated corpse with its left arm missing entangled in the gate of Jaman Barrage. The corpse was naked except for a vest. A mashirnama Exh. 14‑A was prepared con cerning the securing of this corpse, an inquest report Exh. 15 was also prepared and the dead body was then sent to the Medical Officer at Khipro for its post‑mortem examination. The next day 23‑6‑1960 Head Constable Muhammad Ismail went to Phulahdyun and lodged his F. I. R. there at the Phulahdyun Police Station as per Exh. 47.

4. Sub Inspector Nazir Hussain then S. H. O. Phulahdyun after recording the F. I. R. of Head Constable Muhammad Ismail took up the investigation of this case. The vest Article `D' secured from the corpse was shown to. Muhammad Zaman P. W. 2 and he identified it as being one of the vests which he had purchased from the police store at Mirpurkhas and had presented to his brother Abdul Jabbar. S. H. O. Nazir Hussain then recorded the statements of certain prosecution witnesses and on 5‑7‑1960 appellant Rano was produced before him at Sindhri Outpost by Jamadar Muhammad Yousuf. The S. H. O. inter rogated the appellant Rano and then placed him under arrest. Rano led the police party to a place near the embankment of the Khipro canal and pointed out a spot from where the bloodstained earth was secured as per mashirnama Exh.

21. Appellant Rano then led the police party to the village of Rohel Shar where he pointed out the appellant Miandad who was secured and arrested under a mashirnama Exh.

22. Appellant Miandad after interroga tion led the police party to his cotton cultivation from where he dug out a gunny bag containing a white sheet Article `B', a Shalwar Article `C' and a pair of half worn slippers Article `H'. These articles were shown to Muhammad Zaman who identified them as belonging to his brother, and a mashirnama was prepared thereof as per Exh.

23. Appellant Miandad then led the police party including S. H. O. Nazir Hussain to his house from where he produced a hatchet wrapped up in rillis lying on a cot inside the hall of his house. The hatchet Article `G' was secured and a mashirnama prepared as per Exh.

24. Appellant Miandad ther. led the police party to a place from where a filthy smell emerged and pointing out to a spot in the grove of `Sars' bushes, he produced some hair which had turned white and red and was decomposed. At another spot 20 paces away a head of human being was found and a mashirnama was prepared of this as per Exh.

25. The earth secured under mashirnama Exh. 21 and the articles of clothing secured under mashirnama Exh. 23 together with the hatchet and the hair secured under mashirnamas Exhs. 24 and 25 respectively were sent to the Chemical Examiner whose report Exh. 35 shows that human blood was detected only upon the Shalwar Article `C'. The bloodstains on the other articles were disintegrated so that their origin could not be determined. The S. H. O. also held an identification test in respect of appel lant Rano as per mashirnama Exh. 34 and three :further tests as per mashirnamas Exhs. 26, 27 and 28 in respect of the Dhobi mark on the Shalwar Article `C', the book of washerman Rahmat Ali showing special marks on his customers and the identifica. tion of the slippers found in the gunny bag produced by appel lant Miandad. After completing his investigation the S. H. O. challaned the two appellants in Court.

5. The appellants in their examination in the Court of Sessions deny each and every allegation put to them. They allege enmity with one Muhammad Ali Sangrasi. The appellant Miandad has produced as Exh. 45 a report he had made against the said Muhammad Ali to the Deputy Collector Sanghar Divi sion. He also alleges enmity with P. W. Jani who, he alleges, had been arrested by his cousin Haji Muhammad Sher. They led no evidence in defence.

6. In considering the case against these two appellants it will be necessary to examine separately the evidence appearing on the record of this case against each of them. With regard to appellant Rano the sum total of the evidence is that he was last seen in the company of Abdul Jabbar. This evidence consists of Muhammad Zaman P. W. 2 and the three witnesses from whom he made inquiries concerning the whereabouts of his brother Abdul Jabbar, namely, Iqbal P. W. 7, Fazal Muhammad P. W. 8, Jani Khan P. W. 9 all of whom, incidentally, happen to be hotel wallas. The evidence of these three hotelil,allas is that some five or six days before they had been approached by Muhammad Zaman inquiring about his brother they had seen Jamadar Abdul Jabbar in the company of a Bhil at their respective hotels. Of these three hotelwallas Jani Khan P. W. 9 knew Rano Bhil previously but Fazal Muhammad and Iqbal had only seen him in the company of the Jamadar Abdul Jabbar. Fazal Muhammad alone was put to an identification test as per mashirnama Exh. 34 which test was held on 13‑7‑1960 eight days after the arrest of appellant Rano. This mashirnama has been produced in evidence by the S. H. O. Nazir Hussain P. W.

12. The mashir has not been examined nor was any Magistrate present when this test was held. In Muhammad Abbas Hyder v. The State (P L D 1958 SC 1) it was held by their Lordships that an identification parade is practically value less if no Magistrate is called to supervise proceedings. Thus, the evidence led by the prosecution in this case so far as the appellant Rano is concerned is not very convincing. He is not shown to have caused any evidence to disappear in regard to the alleged murder of Jamadar Abdul Jabbar. Mr. Imam Bux appear ing on behalf of the State has frankly conceded that he cannot support the conviction of the appellant Rano and agreeing with him I accept the appeal of appellant Rano and direct that he be set at liberty unless wanted in some other case.

7. With regard, however, to the appellant Miandad the evidence against him consists in the main of his production of the gunny bag as per mashirnama Exh. 23 containing the white sheet or Chaddar Article `B' bloodstained Shalwar Article `C' and the pair of worn out slippers Article `H'. He is also alleged to have produced from his own house the hatchet Article `G' but as the blood on this hatchet has not been declared to be of human origin this piece of evidence will be of no avail as against him. He is also alleged to have led the police party to the place from where a human skull and hair were secured as per mashirnama Exh.

25. But this skull was sent to Dr. Noor Muhamman Exh. 36 who gave a certificate Exh. 38 showing that he could not declare whether this skull belongs to the dead body of the unknown person examined by him on 23‑6‑1960. Thus, the main piece of evidence against the appellant Miandad is the production by him of the bloodstained Shalwar Article `C'. The important point for determination is whether this Shalwar has been proved to belong to Abdul Jabbar. It was shown to Muhammad Zaman P. W: 2 who identified it as belonging to his brother Abdul Jabbar, whom he had last seen a month ago. It bore no particular mark of identity which could have enabled Muhammad Zaman to identify it as being the Shalwar of his brother Abdul Jabbar. The prosecution, apparently, were aware of this weakness in their case and it would appear that it was in order to fill in this gap that this Shalwar was shown to several Dhobis as per mashirnama Exh. 26 and was identified by Rahmat Ali P. W. 3 from a certain Dhobi mark that it bore on the tape channel. This particular Dhobi mark consisting of two dots and an oblique stroke followed again by two dots is claimed by the Dhobi, Rahmat Ali P. W. 3 to be the mark assigned by him to his customer Head Constable Abdul Jabbar. But, this Dhobi has gone on to produce his note‑book as per mashirnama Exh. 27 showing the special marks given by him to his customers. This particular Dhobi mark . appears again and again in this notebook each time with a different figure attached to it. This notebook contains no names of the customers as against each Dhobi mark and, therefore, there is no knowing as to which customer each different Dhobi mark pertains. Apparently, this omission was noticed when this Dhobi was in the witness box because I find that in cross‑examination he has frankly admitted that‑ "I am illiterate. Therefore I have not written the names of the customers in my book Exh. 9."

8. A further attempt has been made by the prosecution to establish the identity of the articles secured from the gunny bag as per mashirnama Fxh. 23 as belonging to Head Constable Abdul Jabbar. Mashirnama Exh. 28 indicates a test that was held from various cobblers as to the half worn out pair of slippers secured from this gunny bag. Rano Mochi P. W. 4 claims to have identified this pair of slippers as belonging to Jamadar Abdul Jabbar who was his customer and who had given this pair of slippers to him for repairs. But, again, this witness Rano P. W. 4 has admitted in cross‑examination that other cobblers carry out similar repairs and, therefore, therc is nothing particular to connect him with this pair of slippers and much less to indicate that this pair of slippers belongs to Abdul Jabbar. It would, there fore, appear that this further attempt on the part of the prosecu tion to establish the identity of the articles secured from the gunny bag mentioned under mashirnama Exh. 23 as belonging to Abdul Jabbar has not been very fruitful.

9. The main point that has been agitating my mind through out the hearing of this appeal and which I find the learned counsel appearing on behalf of the appellants had put in the very fore front of his final arguments is whether this record as it stands establishes the fact that Jamadar Abdul Jabbar has been murdered. It is obvious that for a conviction in a case such as this in respect of an offence under section 201, P. P. C. it must first be established that a murder has been committed. The learned Sessions Judge, I find, has reached the conclusion with which I am in] agreement that the headless body found from the Khipro Wah is not the dead body of Jamadar Abdul Jabbar. The skull secured later was shown to Dr. Noor Muhammad who has stated that it was not the head of the headless body examined by him. There is no evidence of any person who had seen Abdul Jabbar being done to death or who had seen and recognised his dead body. Ratanlal in his book on the Law of Crimes, 19th Edition, at page 758 states‑ "The minimum evidence, which is necessary to prove in a criminal case that a person is dead, would consist of either the dead body being available or somebody's statement, who knew the deceased, that he had seen the dead body, or, at any rate, some statement of some witness to the effect that he had seen the deceased being done to death. In the absence of any evidence of this kind it is impossible to hold merely from the fact that certain person has not been seen for a certain period of time that he or she is dead. It may be that from the circum stances, about which the prosecution has led evidence, some suspicion might attach to the accused in this connection ; but if there is no evidence to prove that the person is dead, the charge of murder or the charge of disposing of the dead body is clearly unsustainable." A Bench of this High Court has also held in Muhammad Ramzan v. The State (P L D 1961 Lah. 167) that where the offence of murder has not been established the accused cannot be convicted under section 201 P. P. C.

10. For all these reasons, then, I am not satisfied with the conviction even of the appellant Miandad in this case. No doubt the finger of suspicion points clearly at him: but, as has been held in numerous cases, suspicion is one thing ; proof is another. In these circumstances, then, I am constrained to give the benefit of doubt to the appellant Miandad also and setting aside his conviction I would direct that he be set at liberty unless wanted in some other case. K. B. A. Appeal accepted.