1969 P Cr (PLP)

Muhammad Hayat Junejo for Appellants. Ali Reza for A. A.-G. for the State. Dates of hearing : 22nd and 23rd August 1967. Hajan Khan, Karim Dad and Mewo appellants were convicted under section 395, read with section 397, P. P. C. and each of them was sentenced to seven years rigorous imprisonment by the learned Additional Sessions Judge, Tharparkar at Sanghar. The appellants, against their convictions and sentences, have preferred this appeal.

2. Aslam Hussain Shah (P. W. 4) had got land having Survey Nos. 88, 92, 212, 213 and 219 of Deh Paboro, Taluka Shahdadpur, District Sanghar, on lease from one Mehdi Shah. Yaqub, brother of Hajan Khan appellant, filed a suit claiming that Mehdi Shah had leased out the land to him and not to Aslam Hussain Shah P. W. During the pendency of the suit Sibtain Shah (P. W. 1), Nazir of Civil Court, where the civil suit was pending was appointed a receiver and took the possession of the land and started managing it from Rabi 1960-61. Sardar Muhammad (P. W. 2), Ali Hassan (P. W. 3) and Muhammad Anwar, whose statement before the committing Magistrate was transferred to the Sessions record under section 33 of the Evidence Act and one Sardaru and some others, who were the haris on the said land, were allowed to continue as such. They had cultivated wheat and rape-seed in the aforementioned land. On the 9th of February 1961, the suit of Yaqub was dismissed and was decided in favour of Aslam Hussain Shah P. W., who applied for the delivery of the possession of the land. Till the occurrence under considera tion, i. e. the 31st of March 1961, the possession of the land had not yet been delivered to Aslam Hussain Shah P. W. and was still being managed by the receiver. The land of the appellant is adjacent to the aforementioned land. On the day of occurrence at about 10 a.m. Sardar Muhammad and Ali Hassan P. Ws. and Muhammad Anwar went to their land and found the appellants with 8 or 10 others harvesting their crop. The companions of the appellants were actually cutting the crop, while the appellants were standing there armed with guns. They threatened the P. Ws. with dire consequences, if they interfered. Thereafter they collected the produce in their own land consisting of wheat and rape-seed. Sardar Muhammad P. W. went to Nawabshah, reaching there at about 10 p.m. on the same day and informed Adam Hussain Shah P. W. as to what had happened. The dis tance between the disputed land and Nawabshah is about seven miles. Aslam Hussain Shah P. W. told Sardar Muhammad P. W. to go and inform the receiver. Sardar Muhammad P. W. there after left immediately for Shahdadpur, reaching there on the following day,, i. e. the 1 st of April 196 i, at about 4 p. m. and informed Sibtatn Shah P. W. about the occurrence. Ile also gave Sibtain Shah P. W. a written report Exh. 4 describing the occurrence. Sibtain Shah P. W. could not contact the Civil Judge on that day as he was on leave. The Civil Judge returned on the 2nd of April 1961, and Sibtain Shah P. W. reported the matter to him. Under the directions of the Civil Judge Sibtain Shah P. W. recorded the statements of the witnesses on the 5th of April 1961, and went to the scene of offence on the said date. Muhammad Khan, Head Constable and Muhammad Arab Constable were sent to the scene of offence to assist Sibtain Shah P. W. When he reached there he found them already present. He was accompanied by Bailiffs Muhammad Juman (P. W. S) and Muhammad Bakhsh (not examined). Sibtain Shah P. W. found that the crop had been freshly cut and removed. Ten or twelve persons, armed with lathis and hatchets, were also present there. The three appellants were amongst them and they were pointed out to Sibtain Shah P. W. by Sardar Muhammad P. W. The receiver . . . . . made inquiries from Hajan Khan, appellant, who admitted that he had got the crop harvested and removed to his own threshing-floor. In other words he is alleged to have con fessed his guilt before him. Sibtain Shah P. W. returned to Shahdadpur and on the 6th of May 1961, submitted his report EXh. 7 to the Civil Judge. On the 10th of April 1961, he went to Police Outpost Sardari, reaching there at 2-45 p. m. and made statement Exh. 8, which was recorded at his dictation by Assistant Sub-Inspector Abdur Rashid (P. W. 6). There is noth ing on the record to show that this statement was ever sent to Police Station Shahpur Chakar and that formal first information report was drawn up and the case was registered. Assistant Sub- Inspector Abdur Rashid P. W. has, however, stated that he had registered the first information report. This is not correct because the book, in which the first information reports arc registered, is only kept at the police station and not at the policy outpost. In view of the above it cannot be said that the first information report was properly registered.

3. Assistant sub-Inspector Abdur Rashid P. W. after record ing statement Exh. 8 of Sibtain Shah P. W., went to the scene of offence and recorded the statements of the alleged eye-witnesses. The distance between the police outpost and the place of occurrence would be about six or seven miles. Sub-Inspector Khaliq Dad (P. W. 7) also partly investigated this case. He took over the investigation of the case on the 17th of April 1961, and arrested the appellants on the 19th of June 1961.

4. The appellants denied their guilt and declined to produce any defence.

5. The prosecution case against the appellants rests on the testimony of Sibtain Shah and Muhammad Jaman P. Ws., before whom Hajan Khan appellant is alleged to have confessed his guilt and the testimony of the eye-witnesses, namely, Sardar Muhammad, Ali Hassan and Muhammad Anwar.

6. Sibtain Shah P. W. in his report Exh. 7 submitted to the Civil Judge, did not mention that Hajan Khan appellant had confessed his guilt before him. Similarly Muhammad Juman P. W., another witness to the extra-judicial confession, also did not mention this fact in the Court of the committing Magistrate. In view of the above this is an after-thought and nothing else, but padding. In any case the confession is alleged to have been made when two police officials, namely, Muhammad Khan in, Head Constable and Muhammad Arab were present, and, therefore, such confession cannot be proved against the said appellant. Thus the extra-judicial confession is of no value.

7. Now I am left with the testimony of the eye-witnesses, who are by no means independent and disinterested. In fact Sardar Muhammad and Muhammad Anwar are definitely inimical towards them. This is apparent from their statements Sardar Muhammad P. W. stated that Muhammad Yaqub P. W. had started proceedings under section 107, Cr. P. C. against him prior to the occurrence, under consideration. Before the com mitting Magistrate he also admitted that Muhammad Yaqub had previously filed a case of theft against him. Similarly Muhammad Anwar P. W. stated that Muhammad Yaqub had brought a case of theft and started proceedings under section 107, Cr. P. C. against him. It is an admitted fact that all these eye-witnesses are haris of Aslant Hussain Shah P. W., who had a dispute with Yaqub, brother of Hajan Khan appellant. Karim Dad and Mewo appellants are haris of Yaqub and Hajan Khan appellant. It is well established rule of caution that no reliance can be: placed on inimical and interested eve-witnesses, unless their evidence is corroborated by some other evidence on the record. In the present case no such corroboration is forth coming on the record. I also find that the investigation in this case has not peen above board. According to Sardar Muhammad P. W. he had given an application to the Deputy Superintendent of Police, Shahdadpur, either on the 31st of March 1961, or on the 1st of April 1961, long before the statement made by Sibtain Shah P. W. before the A. S. I. The prosecution has suppressed that application. Therefore the presumption under section 114 of the Evidence Act that if the said application had been brought on the record it would not have supported the prosecution can be drawn. In any case that application should have been the basis of the first information report in this case instead the statement Exh. 8 made by Sibtain Shah P. W. on the 10th of April 1961, Taking all the aforementioned circumstances into consideration I find that the prosecution has failed to bring home the guilt to the appellants. I, accordingly, accept the appeal, set aside the convictions and sentences of the appellants and acquit them. They are on bail and should be discharged from their bail bonds.