1969 P Cr (PLP)

Gul Hassan deceased had a liaison with Mst. 13ashiran wife of Sheroo (acquitted accused) and sister of Bashir appellant. Muhammad Yar appellant used to act as a go‑between. On the fateful day, i.e. 14th of July 1965, at about 8 or 9 a.m. (a pehar after sunrise) Gal Hassan along with his brothers Amir Bakhsh P. W. 2 and Jumman P. W. 4 was busy in ploughing the field when Muhammad Yar appellant reached there and asked Gul Hassan to accompany him to his house because he wanted a cot for his nephew who had arrived from Punjab. Accordingly, Gul Hassan accompanied him. On reaching his house Gal Hassan took away one cot, and accompanied Muhammad Yar. Gul Hassan also took away along with him the licensed gun (Art. A) No. 427 belonging to his brother Jumman P. W. Nothing, however, was known about the whereabouts of Gul Hassan although his brothers Amir Bakhsh and Jumman P. Ws. had tried to find his clue. Eventually Amir Bakhsh P. W. 2 lodged the report on the 16th of July 1965 at 1 p.m. at Police Station Phuljh narra ting therein the circumstances in which Gal Hassan had left two days earlier.

3. During the investigation, Muhammad Yar appellant took the police inside the sugar‑cane crop of Bashir appellant and his brother‑in‑law Sheroo, and after digging earth got recovered the dead body of Gal Hassan deceased which was taken into possession vide mashirnama Exh.

19. He also produced the cot (Art. N) belonging to Gul Hassan. The police, after preparing the injury statement and the inquest report of the deceased called Dr. Mahboob Alain, Sub‑Incharge Civil Hospital, Dadu, to conduct the post‑mortem examination. Accordingly, the doctor conducted the autopsy on the dead body of Gul Hassan and found thereon eight gun‑shot injuries. The doctor added that the deceased had died as a result of two gun‑shots which caused the above‑noted injuries.

4. Bashir appellant was arrested on the 17th of July 1965. On the following day, he took the police to his cattle pen and from under the ground dug out the gun and produc ed it before the police which was taken into possession vide Mashirnama Exh.

20. On the same day, he led the police to his house and from under a heap of rubbish produced two empty cartridges which were taken into possession vide Mashir nama Exh.24. Mohd. Chhuttal (not produced) and Faiz Muhammad P. W. 6 acted as Mashirs and they attested the Mashirnama. Apart from this, the police, on search, took hold of a chadar from his house which, according to the report of the Chemical Examiner, was found stained with human blood.

5. It may be noted at this stage that the Ballistics Expert Mr. Muhammad Ashraf P. W. reported that the cartridges said to have been produced by Bashir appellant had been fired through the gun of Jumman P. W. which was recovered at the instance of Bashir appellant from his house.

6. The appellants pleaded not guilty to the charge. They also denied the recoveries of the incriminating articles attributed to them. None of them however produced defence.

7. As noted above, the learned Sessions Judge acquitted Sheroo, the husband of Mst. Bashiran, and Ahmad Ali on the ground that the evidence on record did not suggest the inference that they had participated in the murder. He however convicted the appellants on the ground that incriminating articles had been recovered at their instance.

8. Needless to recapitulate that there is no direct evidence in the case. The conviction of the appellants, therefore, depends on circumstantial evidence. Amir Bakhsh and Jumman P. Ws., who are brothers, have categorically stated that their brother Gul Hassan (deceased) had illicit intimacy with Mst. Bashiran and that Muhammad Yar appellant used to act as a pimp. They further stated that on the eventful day Gul Hassan deceased was taken by Muhammad Yar appellant on the pretext that he wanted a cot for his nephew, and that thereafter he was never seen alive. Besides, Jaffar P. W. also saw Gul Hassan in company of Muhammad Yar appellant on the fateful day. He also stated that at the relevant time Gul Hassan deceased was carrying a cot as also a licensed gun of his brother. It therefore stands established that Muhammad Yar appellant took away Gul Hassan along with him and thereafter his dead body was recovered from inside the sugar‑cane field at the instance of Muhammad Yar appellant. The latter also produc ed a cot which Gul Hassan had taken from his house while proceeding with the appellant. These incontrovertible facts lead to the conclusion that Muhammad Yar appellant tools the deceased with a view to get him murdered. It appears that Muhammad Yar in collusion with others took Gul Hassan along with him on the lame excuse that he required a cot and then got him killed. It has already been stated that the dead body of the deceased was recovered at the instance of Muhammad Yar appellant who dug it out from a sugar‑cane field.

9. The question for determination therefore is whether, on the facts stated above, a case under section 302, P. P. C. has been made out against Muhammad Yar appellant. It is not denied that he has been acting as a pimp and used to convey messages to the parties. The most aggrieved person was Sheroo (acquitted accused) whose wife Bashiran was carrying on with Gul Hassan deceased. The possibility therefore that the deceased was killed by Sheroo and others who had a grouse against him could not be eliminated. Briefly stated, the evidence adduc ed against Muhammad Yar appellant lends countenance to the view that he had the knowledge that Gul Hassan had been murdered and that his dead body lay buried in the sugar cane cultivation. The mere fact therefore that he got the dead body recovered does not lead to the inevitable inference that hr himself was responsible for the murder. I am there fore of the opinion that he is guilty of the offence under section 201, P. P. C. Since he took the deceased along with him in order that he may be murdered, he is also guilty under section 364, P. P. C. I accordingly alter his conviction from section 302/34, P. P. C. to sections 201 and 364, P. P. C. and sentence him to seven years' R. I. on each count the sentences shall run concurrently.

10. Coming now to the case of Bashir appellant, there is a evidence on the record that he produced the lincensed gun of Jumman P. W. which Gul Hassan deceased had taken along with him while accompanying Muhammad Yar appellant. Mashir appellant also produced two empty cartridges from his house. The mere recovery of the gun and the two empty cartridges does not conclusively prove that Bashir appellant had participated in the murder. Further, I find that the house and the cattle‑pen wherefrom the empty cartridges and the gun were recovered arc not in his exclusive possession. Sheroo, who is the husband of Mst. Bashiran, also lives there. In these circumstances, the recovery of the gun and the empty cartridges is eliminated from consideration. One blood‑stained chadar was recovered from his house. The learned Sessions Judge, however, for cogent reasons excluded the recovery of the blood‑stained chadar from consideration. For the reasons stated above, I am of the opinion that the prosecution has not succeeded in proving the case to the hilt against Bashir appellant. I accordingly accept his appeal and giving him benefit of doubt acquit him of the charge. He shall be released forthwith provided always that he is not required to be detained in connection with any other case. For the reasons given in the judgment dictated in Court today, I accept the appeal of Bashir son of Meharuddin, appellant, set aside his conviction and sentence under section 302/34, P. P. C. and acquit him. He shall be released forthwith provided always that he is not required to be detained for any other cause.

2. The appeal of Muhammad Yar son of Haji Mianzada appellant is accepted to the extent that his conviction under section 302/34, P. P. C. is altered to those under sections 201 and 364, P. P. C. and be is sentenced to seven years' rigorous imprisonment on each count; the sentences being concurrent. Appeal accepted.