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Criminal Appeal No. 32 of 1951, decided on 17th May 1951, from the order of Sessions Judge, Rawalpindi, dated the 3rd January 1951, convicting the appellants.

(a) Evidence Act (I of 1872), S. 106‑Accused pointing out place where corpse of deceased was burnt and bones of human being, footwear and ring etc, were discovered‑Burden on accused to prove he acquired his knowledge in innocent ways ‑Accused, held, guilty under section 201 Pakistan Penal Code‑‑ Evidence Act (I of 1872), S. 27.

If the accused had acquired his knowledge of the place where the corpse of the deceased was burnt and bones of a human being, ring, chappal etc., of deceased were found, in an innocent way it was up to him to say so. It is laid down by section 106, Evidence Act, that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. The accused, when asked by Court whether he had pointed out to the police the place from where the skeleton and some burnt articles were recovered, merely denied the fact and gave no explanation whatso ever. The fact was, however, satisfactorily proved and the least damaging inference that can be drawn from it against the accused is that he, knowing or having reason to believe that an offence had been committed, caused evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment.

(b) Confession‑Retracted‑Needs corroboration before can be safely acted upon.

A. R. Changez, Z. H. Lari, for Appellants.

Mr. S. A. Mahmood, A. A. G., for Respondent.

Sher Bahadur, aged about 35 years, Ghulam Haider, aged about 30 years, and Sultan, aged between 16 and 17 years, sons of Azad, and Nur Muhammad, aged about 20 years, son of Ali Muhammad, all gujjars of village Gheela Khurd, police station Sangjani, District Rawalpindi, were tried on a charge of murder and convicted under section 302, Pakistan Penal Code, read with section 149, Pakistan Penal Code, inasmuch as they had committed murder in the prosecution of their common object, with one Gulab, son of Ali Muhammad, who was tendered pardon and made an approver in the case. Sher Bahadur and Ghulam Haider were sentenced to death, while Sultan and Nur Muhammad were sentenced to transportation for life. The sentences of death have been referred to this Court for confirmation and convicts have appealed from the order of the conviction.

The prosecution case, 'As stated by the approver, is that Mst. Sahib Nishan (P. W. 11) was married to Gulab, a step‑brother of Sher Bahadur, Ghulam Haidar and Sultan appellants. He died leaving a son named Yusuf, aged about 9 years and a daughter named Shahjahan, aged about 12 years. About 6 or 7 years before the murder Mst. Sahib Nishan got married to Muhammad son of Budha, caste Gujjar, aged about 40 years, and went to live with him along with her children. On 7th May 1948 a wheat stack belonging to Azad was set on fire. Report Exh. P. Q. was made against Muhammad, son of Budha, Sher Bahadur, son of Ali Bahadur, Nek Muhammad, son of Sultan, and some others. On trial they were convicted but acquitted in appeal. During the pendency of this trial Sher Bahadur appellant and some others were proceeded against under section 107, Criminal Procedure Code. On 20th July 1948 Sher Bahadur, son of Ali Bahadur and Nek Muhammad, son of Sultan, were killed. Report Exh. P. R. was made against Sher Bahadur, Ghulam Haidar and Sultan appellants as well as some others. Muhammad, son of Budha, appeared as a witness for the prosecution against them but they were acquitted in 1949. The relations between Muham mad, son of Budha, and the appellants became strained but a compromise was effected between them in or about the month of June 1950. The appellants had a tea shop in the village and Muhammad began to visit the appellants at their shop. Nur Muhammad appellant belongs to the biradari of the other three appellants and is stated to be a friend of theirs. He also used to visit this shop. Gulab, son of Ali Muhammad (approver) became a friend of the appellants after Sher Bahadur, Ghulam Haidar and Sultan were acquitted in the murder case. On 11th August 1950 Sher Bahadur, Ghulam Haidar and Sultan appellants told Gulab approver and Nur Muhammad appellant that Muham mad was not a good man and should be put to death. He had appeared as a witness against them in a murder case. He had burnt their wheat stack and had married their widowed sister‑in -law whereby he had disgraced them. Nur Muhammad and Gulab approver agreed to this. On 13th August 1950 Gulab was in his house where Sher Bahadur appellant went to see him in the afternoon. He brought a tin of kerosene oil which he said would be useful and asked Gulab to keep it which he did. In the evening Gulab went to the shop of Sher Bahadur and his brothers were all present there. Shortly afterwards Nur Muham mad appellant arrived and he and Gulab were told that Sher Bahadur and his brothers would take Muhammad, son of Budha, to, village Karmal that evening on the pretext of setting fire to the stack of bhusa of Bakhsh Padda of karmal who was their enemy arid that they would kill Muhammad on the way and set fire to his dead body. A little later Muhammad son of Budha, came to the shop. He was carrying a kulhari. Sher Bahadur and his brothers told him that Bakhsh Padda of Karmal had been molesting their nieces and they were going to set fire to his stack of bhusa. They asked Muhammad if he would like to join them and he agreed. They were still at the shop when Rehmat Din, Ali Jan; Gulab Mirza and Ghulam Mohy-ud-Din P. Ws. came there as customers and were served with tea. Then Sher Bahadur and Ghulam Haidar appellants told Gulab to go home and bring the tin of kerosene oil to a place near Malik Suleman's house where all the appellants would meet him with Muhammad, son of Budha. Gulab took the tin of kerosene oil to the appointed place and waited for them. In a short while the appellants and Muhammad, son of Budha, also reached there. Muhammad was carrying a kulhars, Ghulam Haidar had a rifle, Sher Bahadur had a knife, Sultan had a hockey stick and Nura had a pistol. , They were followed by Rehmat Din t P. W. 8) ‑and as the appellants and their companion Muhammad stopped near the approver, Rehmat Din passed by them and went on his way. Then the appellants, the approver and Muhammad started 'on their errand and as they reached the level crossing near Wahabian wali Mosque, they saw Rehmat Din (P. W. 8) sitting down urinating and Qazi Fazal Elahi (P. W. 7) standing beside him. The appellants and their companions walked along the railway lines towards Taxila Railway Station and when they reached near the lime kilns they met one Inayat‑ Ali khatter of village Khurram who has not been produced. Farther on when they were. near some hills Ghulam Haidar fired a shot at Muhammad, son of Budha, who was walking ahead of him. Muhammad fell down‑ and Sher Bahadur cut his throat with the knife which he was carrying. Then Sher Bahadur and Ghulam Haidar asked Gulab approver to take the tin of kerosene oil nut of the gunny bag in which he was carrying it and to hand over the gunny bag to them. The approver did so and the appellants put the dead body of Muhammad in the gunny bag and thrusting the hockey stick through the gunny bag picked up the bag containing the dead body and carried it by‑means of the hockey stick. The approver carried the tin of oil on his head and the kulhari of the deceased in his hand. The dead body was taken to the top of a hillock where the Pyjamas of the appellants, which had become stained with blood, were put over the gunny bag containing the dead body. Sultan appellant took the tin of kerosene oil from the approver and made a hole in it with the knife and then emptied the tin on the pyjamas lying on the gunny bag containing the dead body and Sher Bahadur appellant set fire to the heap. The party then returned to their village. Muhammad deceased is stated by the approver to have been wearing a khaki shirt, khaki pyjamas and a reddish pair of kheris. The empty tin of kerosene oil was thrown away by the approver but he took the deceased's kulhari home with him. Ten days later, i.e., on 23rd August 1950 Gulab made a statement to the police and produced the kulhari Exh. P.. 7 from his house. It was not stained with blood because it was not stated to have been used in committing the murder. Gulab was tendered pardon and he made a statement on oath Exh P. F. before Muhammad Ashraf, Magistrate, on 26th August 1950. Gulab has admitted in his evidence that he produced the kulhari after he had been promised pardon. In cross7examination he was asked whether it was the habit of Muhammad deceased to come to the appellant's tea shop with a kulhari and he replied that it was not his habit and that he had brought the kulhari on the evening of occurrence merely by chance. The point of this question is that the kulhari produced by the approver is not admitted to belong to Muhammad and it is urged that Muhammad was not likely to come to a tea shop with a kulhari because it was after his arrival there that he was told that the appellants wanted to go and set fire to the stack of Bakhsh Padda in village Karmal. Muhammad had no idea that he would be asked to join in committing a crime and was therefore not likely to come armed with a kulhari. The approver has also stated in cross‑examination that hip house is situated towards the north of the bazar and the house of Malik Suleman, near which he met the appellants, is towards the south. He was asked whether it was true that the appellants and Rehmat Din (P. W. 8) went to his house from the shop and asked him to bring out the tin of kerosene oil. He denied this and our attention has been drawn to the evidence of Rehmat Din who stated that Gulab (approver) left the shop a few minutes before the others and then the appellants accompanied by Muhammad, son of Budha, and the witness Rehmat Din went to the house of Gulab. There Muhammad deceased called out to Gulab who came with a gunny bag in which there was something. From there Rehmat Din went with Gulab approver and the others up to the railway lever crossing where he stopped to pass urine. Qazi Fazal Elahi (P. W. 7) met them at the railway crossing and asked Rehmat Din where the appellants and their companions were going. Rehmat Din said that they were going on some business of theirs and went away to his own house. This is a definite contradiction of the approver's statement. Rehmat Din has also stated that the appellants, the approver and Muhammad, son of Budha went along the railway lines from the level crossing towards "the railway station. The level crossing is at a considerable distance towards the north of Suleman's house where, according to the approver, the appellants had joined him. According to Rebmat Din they all went from the approver's house to the level crossing where Rehmat Din parted with the appellants and their companions who proceeded along the railway lines towards the railway station. The railway station is towards the south and if the approver and the appellants had met near Suleman's house they could have pro ceeded further south to the railway station and there was no need of their going up north to the railway crossing where, according to Gulab, they met Rehmat Din and Fazal Elahi. When questioned on this point the approver said that they did not go towards the south from the house of Suleman, though village Karmal is towards the south, but went up north towards the railway crossing in order to go to their destination in the south. When taxed on this point the explanation offered by the approver was that they did not go by the road leading to the railway station, which passes by the house of Suleman, because they wanted to walk along the railway lines which they could do only by going on the other side of the railway crossing. From an examination of the site plan Exh. P. J., this appears to be a very unconvincing statement. The approver was asked whether he had given any such explanation in his statement to the police and he said that he had ; but no such explanation was found in the statement. He was asked whether he had given this explanation in his statement Exh. P. F. He again told a lie that he had, though he had not. He was asked particulars about Inayat Ali who was supposed to have met them near the lime kilns. He said that Inayat Ali was a nephew of Ghulam Ahmed Khan lambardar yet he was not called as a witness. The approver said that the place where Muhammad was killed and his throat was cut was stained with blood but no bloodstains were found by the police when they inspected the spot. The witness stated in the committing Court that there were faint blood marks pre sent when the police went to the spot but admitted in the Court of Session that there were no stains of blood at the spot when they went there and added that it had rained abundantly in the meantime. He said that he had told the police that it had rained a little after the murder. This was a lie. He was confronted with his statement Exh. D. E. and there is no mention of any rain in it. When questioned about the part played by himself in this crime he said that he merely carried the tin of kerosene oil and did nothing else. He had thrown away the empty tin about a mile or half a mile from the place of occurrence. The tin was' searched for at this place but never found. He denied that the appellants had appeared before the police and had been questioned by them before he appeared on the 23rd August. He was confronted with his statement in the committing Court in which be had admitted this fact. He denied making that statement. He, however, admitted that he made no statement to the police until he was assured that he would be made an approver and it was after that be produced the kulhari Exh. P. 7. The production of this kulhari is of no value. Such kulharis can be found in the house of any zamindar. He said that he had not pointed out any skeleton at the spot as there was none when he went there with the police. His going to the spot with the police is also of no value because, according to the prosecution, this spot had already been pointed out to the police by Sher Bahadur appellant on 22nd June.

Qazi Fazal Elahi (P. W. 7), a lambardar of Cheels Khurd, who was stated to have seen the appellants and their companions near the railway crossing where Rehmat Din was urinating, admitted in his evidence that the appellants had beaten him a few years before and that they were challaned and convicted but a compromise was effected in the Sessions Court. He had not said anything about the compromise in the Court of the Committing Magistrate. He did not state to the police or the Committing Magistrate that he had met the appellants on the level crossing near Wahabianwali Mosque. He was quite definite that Rehmat Din was sitting down and urinating when the appellants passed by him. He was confronted with his statement to the police Ex. D. A. where he had stated that when he reached near the railway phatak Rehmat Din had passed urine and was standing and, on being asked, told him that he had passed urine when the accused appeared and proceeded towards the railway station.

He has stated that he did not notice any weapons in the hands of the accused. According to the approver, Ghulam Haidar was carrying a rifle, Sher Bahadur a knife, Sultan a hockey stick, Nura a pistol and Muhammad deceased a kulhari. If riot all the weapons, at least, the rifle and the kulhari should have been visible to the witness if he had actually seen anyone carrying these weapons. The disappearance of Muhammad, deceased, had begun to be talked about from the day after his disappearance. Fazal Elahi (P. W.) met the brother of the deceased in the village but said nothing about seeing the deceased going with the appellants until he made a statement to the police 8 or 10 days after the event. He said that, so far as he could remember, it‑ was a moonlit night when he met the appellants and the deceased. The calendar shows that it was a completely dark ‑night.

Out of the witnesses who were alleged to have come to the shop of the appellants, besides Rehmat Din, Ghulam Mohy‑ud -Din was examined as P. W 17, ‑whilst Ali Jan and Gulab Mirza were tendered for cross‑examination, which was declined. Ghulam Mohy‑ud‑Din stated that he had gone to have some tea at the shop of the appellants on 13th August 1950 at 9‑30 p. m. and there saw Muhammad deceased who was wearing a khaki shirt, a khaki shalwar and a red turban. He was also in posses sion of the hatchet Exh: P. 7 which the witness identified. The power of observation and the memory of this witness is extra. ordinary and it is remarkable that he did not notice the deceased wearing the chappals or the ring which are alleged to have been recovered from the place where the dead body was burnt. This witness lives at a distance of two to four thousand yards from the shop of the appellants i. e. about a mile or two away ; but he preferred to mention the distance in yards. He admitted that there is another tea shop, belonging to one Faqira, situated between his house and the appellants shop but he has not explained why he took the trouble of walking a distance of about two miles to buy a cup of tea which he could have bought nearer home. Nor was he able to give any date except the 13th August on which he had taken tea at any shop. This was hardly in keeping with the remarkable memory which he displayed in remembering the details of the clothes worn by Muhammad, one of the many persons present at the tea shop. So far as the kulhari is concerned, the witness seems to have remembered it only in ‑the Court of Session because he made no mention of it in his statement to the police or the Committing Magistrate with which he was duly confronted. He heard on the 14th August that Muhammad was missing and, according to him, he told Dost Muhammad, brother of the deceased, that he had seen Muhammad at the shop of the appel lants on the previous night. Dost Muhammad made a report on 15th August 1950 Exh. P. A. that his brother, who was addicted to opium, charas and Mang, was missing but he did not name Ghulam Mohy‑ud‑Din as one of the persons who had given him any information about seeing the deceased at the appellant's shop. The clothes worn by Muhammad, when he left his house, and his personal description are given in this report ; but there is no mention of his carrying any hatchet or of his having been seen by anyone going in the company of the appellants or Gulab approver. Two days later another report Exh. P. B. was made by Dost Muhammad at police station Sangjani in which he mentioned the motives that the appellants had to kill the deceased and stated that Ghulam Mohy‑ud‑Din, son of Qadir Kashmiri, had informed him that he had seen his brother Muhammad having tea at the appellant's shop on 13th August 1950 at about 10 p. m. and that Muhammad had gone from the shop with Ghulam Haidar, Sultan, Sher Bahadur and Nura appellants and Rehmat Din P. W. Even in this report made by Dost Muhammad on 17th August 1950 i.e., four days after the event, there is no mention of Gulab appro ver having been seen by Ghulam Mohy‑ud‑Din in the shop of the appellants or of his having been seen going with the appellants and the deceased by Qazi Fazal Elahi near the railway crossing. The only person mentioned in the report as going with the appel lants, accompanied by the deceased, was Rehmat Din (P. W. 8) who admitted, in the Court of the Committing Magistrate, that he himself was suspected of this murder by the police. In the Court of Session, he denied making this admission. After giving due consideration to the evidence of Gulab (approver), Rehmat Din, Qazi Fazal Elahi and Ghulam Moby-ud‑Din, I am not satisfied about its truth: It must, therefore, be seen whether there is anything against the appellants, apart from this evidence, on which they. can be convicted.

Sher Bahadur, Ghulam Haidar and sultan, the three brothers, appeared before the police on 22nd August 1950 and were taken into custody. Nur Muhammad and Gulab approver appeared on 23rd August 1950 and they were also arrested. Sher Bahadur made a statement to the police and led them to the hillock where the body of the deceased was alleged to have been burnt. A pair of shoes Exh. P. 4, two buckles Exh. P. 4/1 and P./2, a piece of tiara Exh. P. 5, some burnt pieces of cloth Exh. P. 6, a ring Exh. P. 8, some bones Exh. P. 9, scorched dheengris Exh. P. 10, burnt twigs and stones Exh. P. 11 and burnt earth Exh. P. 12 were seen and taken possession of vide memo. Exh. P. K.

The learned Sessions judge has correctly held that the small pieces of burnt cloth are hardly identifiable, but the chappals and the ring were identified as belonging to the deceased. The bones, Exh. P. 9, were of a human being, according to the evidence of Dr. S. M. Afzal, Professor of Anatomy, Ii. E. Medical College, Lahore, and consisted of

(1) A partially articulated spinal column with broken ribs and right innominate and sacrum.

(2) Left innominate and left femur.

(3) Skull.

(4) Lower jaw with molars.

(5) A tibia without ends.

(6) A fibula without ends.

(7) Two separate ribs.

(8) One atlas, an axis and a cervical vertebra.'

(9) A broken scapula.

Sher Bahadur had knowledge about the presence of these bones at this particular place which is not a cemetery or a crematorium. Obviously, therefore, the human being whose bones were found here, at the pointing out of Sher Bahadur, was either killed here or his body was removed to this place in order to cause the evidence of homicide to disappear with the intention of screening the offender. The presence of burnt clothes, dheengris twigs, stones and earth excludes the possibility of his having died‑ a natural death here. The knowledge regarding the presence of the skull and other bones at this place could have been acquired by Sher Bahadur if he had taken part in homicide or in removing the body ; or if he had seen others committing the crime, or by his being told about it. If he had acquired this knowledge in any of the two last mentioned innocent ways, it was up to him to say so. It is laid down by section 106, Evidence Act, that when any fact is specially within the knowledge of any person, the burden of proving that fact is upon him. Sher Bahadur, when asked by Court whether he had pointed out to the police the place from where the skeleton and some burnt articles were recovered, merely denied he fact and gave no explanation whatsoever. The fact is, however, satisfactorily proved and the least damaging inference that can be drawn from it against Sher Bahadur is that he, knowing or having reason to believe that an offence had been committed, caused evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment. I would, therefore, convict Sher Bahadur under section 201, Pakistan Penal Code. The offence in this case was culpable homicide and, in the absence of any proof that it was covered by any of the Exceptions, it amounted to murder which is punishable with death. The sentence under section 201, Pakistan Penal Code; can, therefore, extend up to seven years and I would give Sher Bahadur the full sentence of seven years' rigorous imprisonment. I would set aside his conviction and sentence under section, 302, Pakistan Penal Code.

The conviction of Ghulam Haider by the trial Court is based on the evidence of the approver which was considered to have been corroborated by witnesses who had seen him going with the other accused and the deceased on the night of the 13th August 1950. I have not put any faith in the evidence of the approver or the witnesses who said that they had seen Ghulam Haider and the other appellants going with the deceased. The evidence relating to the motive does not prove Ghulam Haider's guilt. A rifle is alleged to have been recovered from his possession but there is nothing to show that this rifle was used in the commission of this crime. There is no other evidence to prove the offence of murder against him. I would, therefore, set aside his conviction under section 302, Pakistan Penal Code, and acquit him.

As regards Sultan, the only evidence is that he was seen with the other accused and the deceased on the night of 13th August 1950, in his village, by witnesses whom I have not believed and further that he too had motive, like his brothers Sher Bahadur and Ghulam Haider, to kill Muhammad. I do not consider this evidence to be sufficient for his conviction for any offence. I would accept his appeal and acquit him.

Nur Muhammad appellant made a confession before Mr. A. D. Cheema, Magistrate First Class, Rawalpindi, on 28th August 1950, 15 days after the occurrence and 5 days after his arrest. The confession was retracted and needs corroboration before it can be safely acted upon. The approver has stated that lie gave information to the police only after he had been assured that he would be made an approver. It seems that the police were rather free with promises of pardon which they were not authorised by law to tender. It does not seem unlikely that Nur Muhammad also made the confession after lie had been assured by the police that he would be made an approver. The confession would, in that case, be irrelevant under section 24, Evidence Act. In any case, I am not inclined to convict Nur Muhammad on his retracted confession without any corroboration. It is said to be corroborated by the production of a country‑made pistol and some bullets by him from his house. Like the rifle alleged to have been produced by Ghulam Haider, this pistol too has not been stated by the approver to be the same as that carried by the accused at the tint of the murder and the bones and other articles recovered from place pointed out by Sher Bahadur do not show that any fire‑arms had been used. The other corroborative evidence is that Nur Muhammad was also seen with the other appellants and the deceased on the night of the occurrence. I do not believe this evidence and would, therefore, set aside the conviction of Nur Muhammad and acquit him also.

I would not confirm any sentence of death and, except for Sher Bahadur whom I would convict under section 201 and sentence to seven years' rigorous imprisonment, I would accept appeal of all the other appellants and acquit them.

.--I agree

A.H Appeal accepted in major part.

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