P (PLP)

Government Advocate, for Crown. JUDGMENT.‑

Three persons Ghulam Qadir, Mulan Muhammad Hussain and Ilahi Bakhsh were tried and convicted by the learned Sessions Judge, Rahimyar Khan, 'under section 302 Indian Penal Code for causing the death of Kabir and each was sentenced to death. This is an appeal before this Court on behalf of the convicts. The facts of the case as stated by the prosecution are that Kabir was sent by his father Jalal to one Muhammad Bakhsh P. W. 10 on, the evening of 19th of March 1949 to fetch a bullock from him. Muhammad Bakhsh was not present at his house and Kabir after reaching there had to wait till late in the evening. On his return Muhammad Bakhsh gave an untrained bullock to Kabir who returned with it to his house. In the way the bullock succeed ed to escape from the custody of Kabir and returned to the house of his owner Muhammad Bakhsh. Kabir 'too returned to the house of Muhammad Bakhsh. When he reached there it com menced to rain. Muhammad Bakhsh advised him to spend the night with him but Kabir did not agree. After the rain had stopped Muhammad Bakhsh went with Kabir to see him off and returned after leaving Kabir at a distance of 2 miles. He had not gone back far when the cries of Kabir were heard by him. He therefore returned for the help of Kabir. Rahim Bakhsh P. W. 11 and Allah Bakhsh P. W. 12 also reached there per chance. All the three saw the accused assaulting .the deceased, with a ` Kabi and `. Kulharis.' The deceased died on the spot and the culprits escaped. The witnesses however out of fear could afford no assist ance to the deceased. The three persons then went to the dead body and later on to inform Jalal P. W. 5, father of the deceased. Jalal the father and Kaim Din P. W. 4 the cousin of the deceased reached the spot. Kaim Din was sent to inform' Wahid Bakhsh P. W. 8 the Zaildar. Report was also made by Kaim Din at 1. p. m. on the 20th March 1949. The distance between the place of occurrence and the Police Station being only two miles. The post‑mortem examination of the deceased was performed by Rahmat Ali; Assistant Surgeon Rahimyar Khan, on 21st March 1949 at 10 a. m. The weapons of offence were recovered. The accused denied the charge. The argument of the learned Counsel was that the report to the police was delay‑4, that the first information report was made after the investigation was started and conseqently it was inadmissible in evidence that he medical evidence is in conflict with the story told by the eye witnesses as according to the medical evidence the death took place on the afternoon of 19th March 1979 ; that all the eye witnesses were not produced by the prosecution and whoever were produced are inter connected and from their statements and conduct they are not proved to be truthful and therefore eye witnesses. It was conceded. by the: learned counsel for the Crown that if the Court comet to the conclusion that the investigation had started before the first information report was made, then the first information would not be taken into consideration and according to the evidence of the prosecution the case would fall to the ground. In order to decide this important question we have to refer to the important witnesses of the prosecution, and they are Muhammad Bakhsh P. W. 10 Wahid Bakhsh P. W. 8 and Rahim Bakhsh P.W.11, and Allah Bakhsh P. W.

12. Now Muhammad Bakhsh P. W. 10 had clearly stated that the junior Sub‑Inspector had reached the village with 'some police constables at sunrise, that neither he nor Rahim Bakhsh and Allah Bakhsh made any statement to that officer nor there was any talk about the occurrence but the talk went on another general matters Wahid Bakhsh, P. W. 8's statement was that he was informed of the occurrence at about 9 or 10 a.m. by Muhammad Bakhsh. Ht went to the spot Rahim Bakhsh, Allah Bakhsh the other two eye witnesses, the, father of the deceased and other persons whose names are not known were present there. Enquiries were made but nothing was known before the arrival of the police and conjectures about the murderers started after the arrival of the police. The learned counsel from the statement of these wit nesses concluded that nothing was actually seen by these persona of the occurrence. He further supported himself from the state ment of the same witnesses for instance, Muhammad Bakhsh P. W. 10 deposed that he had made no statement to the' Assistant Sub‑Inspector of‑Police, nor he stated to Wahid Bakhsh when he Iliad gone to inform him that he had seen the accused murdering Kabir. All that he had said to Wahid Bakhsh was that Kabir was murdered. Wahid Bakhsh supports Muhammad Bakhsh in this connection. The evidence relating to the track evidence was also, considered by the counsel in support of his case and contended t$ that neither the so‑called eye witnesses nor the tracker knew that the present accused had caused the murder of Kabir. The Counsel also contended that these witnesses could not identify the murderers of Kabir because they were standing at a distance of 12 karams from the place of occurrence. It was a cloudy night because the rain had stopped only a short time before the occurrence, in support of his contention he refers us to the evidence of Muhammad Bakhsh when Ire had stated that he could identify Rahim Bakhsh and Allah Bakhsh only from their voices, though they were standing at a distance of 15 or 16 karams from him, Mr. Nisar Ahmad also contended that Muhammad Bakhsh was interested in the deceased that Rahim Bakhsh and Allah Bakhsh were chance witnesses and were friends of Muhammad Bakhsh, as Manzoor Ahmad P. W. 6 and Allah Ditta P. W. 7. sons of Rahim Bakhsh had also appeared as wajtakar witnesses to depose that they had seen the accused going in a, company in the afternoon of 19th of March 1949. The survey of the evidence of these witnesses no doubt proves that from their own conduct they have not proved to be the eye witnesses. If they had seen any incident they would have told of it to the Assistant Sub‑Inspector of Police. They would have at least told to Zaildar Wahid Bakhsh. If these factors had not existed in the testimony of these persons then the other points raised by the learned counsel nay have paled into insignificance. But in the presence of these circumstances which are fatal to the case of the prosecution the other factors depended upon by the learned counsel for the defence also support his contention. Indeed the Sub‑Inspector of Police had deposed that before his arrival at the spot no police officer had gone to make investigation: in the case. In the presence of the clear statement of the impor tant witnesses of the prosecution it is very difficult for us to accept the version of the Sub‑Inspector of Police. It was contended by the learned Crown counsel that instead of the A. S. I. some police constable might have been present. in the village for some other business. But the reply to this is found in the statement of Muhammad Bakhsh who bad definitely stated that the A. S. I. was accompanied by the constables. We are not prepared to believe that the S. I. even if he had not sent his own subordinates for investigation to the village could be ignorant of that fact, that is of the presence of those policemen, in the presence of such a clear evidence If that was the circumstance then he ought to have explained it before the Court. We are, therefore, con strained to believe the important witnesses of the prosecution that an assistant Sub‑Inspector had gone to the place of occur rence for investigation and that the witnesses gave him no infor mation of the murderers of the deceased. In other words, nothing was known at that time who had caused the death. Wahid Bakhsh is true when he stated‑ that the conjectures commenced regarding the murderers of the deceased after the arrival of the police and that was the cause of the delay for the First information report, A first information report after the police investigation had started being a statement of a person before the police was inadmissible in evidence and could not be taken into consideration. These circumstances leave no doubt to conclude that the so‑called eye witnesses had not seen the occurrence. There was no doubt that the party of the accused was inimical to Kabir and his party. As the latter party was already involved in a murder case for causing the death of a person of the party of the accused, the accused could be suspected of causing the murder of Kabir. But suspicion and conjectures however forcible they may be could not take the place of the positive proof against the accused. We are, therefore, of opinion that the prosecution had failed to bring the case home to the accused. With these observations we accept this appeal and set aside the conviction and sentence of the accused and acquit them. They shall be released forthwith if not wanted in any other case. (The rest ‑of the judgment is not material for the purposes of this report). A.H Appeal accepted.