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Criminal Appeal No. 67 of 1967, decided on 24th June 1968.
S. 99‑Police not recording in writing in Roznamcha grounds for making search of house of accused ‑ One of Police raid party allegedly killed by accused accused raising plea of self‑defence against torture by Police Accused found injured grievously‑field, search intended to be made was without jurisdiction and bad in law‑Provisions of S. 99, in circumstances, could not be invoked fn favour of Police raiding party.
S. Ehsan Qadir Shah for Appellants.
Saeed‑ur‑Rahman for A.‑G. for the State.
Dates of hearing: 9th and 10th May 1968.
Ashiq Din (26), Muhammad Khan (21), Ali (31) and Amin (35) were placed before the learned Additional Sessions Judge, Sargodha, for trial on charges under sections 148, 302/149, 307/149 and 353/149, P. P. C. The trial Judge acquitted Amin and Ali on all the charges. He convicted Ashiq Din under section 302, P. P. C. to suffer death. Ashiq Din and Muhammad Khan were held guilty under sections 307/34, P. P. C. and were ordered to undergo rigorous imprisonment for a period of seven years each. The sentence of imprisonment passed on Ashiq Din was ordered to take effect in the event of the death sentence not being confirmed by this Court. The convicted persons have appealed and the learned Additional Sessions Judge referred the case of Ashiq Din to this Court under section 374, Cr. P. C. for confirmation of the capital punishment. We propose to dispose of the appeal and the reference by a single judgment.
2. The facts of the case, briefly, are that on the 12th of January 1963, H. C. Ghulam Muhammad along with Ahmad Yar and seven Constables, who were on patrol and Nakabandi duty, reached the dera of Amir Khan in the area of village Pelowains before the morning prayer time. They took along with them Amir Khan and Talib Chaukidar and went to the Baithak of Abdul Ghafoor, Chairman. Haibat Khan and Falak Sher were called to the place and on the statement of Abdul Ghafoor, the Head Constable drew up the complaint Exh. P. T. and sent it to Nurpur Police Station at 6‑30 a.m. through Falak Sher for registration of a case under section 20 of the Arms Act (XI of 1878). The Head Constable accompanied by Amir Khan, Ahmad Yar, Talib, Haibat Khan and the members of the police force went to the house of Ashiq Din at sunrise. The Constables took up positions in front of the house of Ashiq Din. Ghulam Muhammad, Head Constable along with F. C. Raj Muhammad, Amir Khan and Haibat Khan went towards the house of Ashiq Din. Foot Constable Raj Muhammad handed over his rifle to F. C. Muhammad Feroze before he entered the kotha. He assured the Head Constable that the culprits were known to him and there was no danger in the event of their entering the kotha. Head Constable Ghulam Muhammad and F. C. Raj Muhammad entered the kotha of Ashiq Din simultaneously. Amir Khan and Haibat Khan followed them, but they did not actually enter the kotha. The door of the kotha was not chained from inside. The Head Constable noticed Ashiq Din, his brothers Muhammad Khan and Ahmad Khan together with Ali and Amin present inside the kotha. Ashiq Din fired with a gun hitting F. C. Raj Muhammad on his left flank as soon as he entered the Koiha. Foot Constable Raj Muhammad fell down. The Head Constable along with Amir Khan and Haibat Khan fled towards the kotha of Haji Shah Beg. The Head Constable ordered the appellants and their confederates to throw away the weapons, raise their hands and come out of the kotha. They paid no heed to the order given to them and instead started firing at the Head Constable and his companions. Head Constable Ghulam Muhammad ordered the police party to fire towards the culprits in self‑defence. The firing continued from both the sides for about half an hour. Ashiq Din then came out of the Kotha armed with a pistol and ran away. Amin and Ali also made good their escape. They fired while running away from the spot. Ali carried a rifle and Amin was armed with a pistol. Muhammad Khan was the last to come out of the kotha. He carried a gun and as he tried to pass near the Head Constable, he apprehended him with the help of F. C. Mauladad, Amir Khan and Haibat Khan. In the scuffle that ensured, the Head Constable and F. C. Mauladad sustained some minor injuries. The Head Constable snatched the gun P. 1 which had an empty cartridge P. 2 stuck in its chamber from Muhammad Khan. He recovered the live cartridge P. 3 from the shirt pocket of Muhammad Khan and took the same into possession vide memo. P. A.
3. On entering the Kotha F. C. Raj Muhammad and Ahmad Khan were found lying dead. The Head Constable took into possession blood‑stained earth from the place where the dead body of Ahmad Khan was lying and sealed it into a parcel. He also recovered the saw P. 5, lock P. 6, a bunch of keys P. 7, charger P. 8, an empty box of 12 bore cartridges P. 9 and a pair of Chappals P. 10/1‑2 from the spot vide memo. P. D. Eleven empty cartridges of 12 bore recovered from near the dead body of Ahmad Khan, were made into a sealed parcel by the police. Sixteen '303 bore empties Exh. P. 12/1‑16 were recovered from the spot and made into a sealed parcel. The rifle P. 17 with an empty stuck in its chamber was also recovered from near the dead body of Ahmad Khan and was made into a sealed parcel by the police. Eight empty chargers P. 4/1‑8 were lying near the dead body of F. C. Raj Muhammad. These chargers contained the 303 rounds and were in possession of F. C. Raj Muhammad in his bandolier when he had entered the kotha. The Head Constable took all these things in his possession vide memo. P. C. He drew the complaint Exh. P.U. and forwarded it to Nurpur Police Station, at a distance of eleven miles from the place of the occurrence, for registration of a case. He prepared the injury sheets and the inquest reports relating to F. C. Raj Muhammad and Ahmad Khan, the deceased persons, and despatched the dead bodies to the mortuary for post‑mortem examination.
4. The case was partly investigated by Sub‑Inspector Muhammad Zaman (P. W. 29) who took into possession ten '303 empties P. 18/1‑10 and sealed them into a parcel. Foot Constable Muhammad Feroze produced two empty cartridges P. 19/1‑12 which were taken into possession and sealed into a parcel by the Police Foot Constable Abdul Haq produced an empty P. 20 which was taken into possession and sealed into a parcel. Foot Constable Ali Muhammad produced the empty P. 21 which was taken into possession vide memo. P. L. On the 12th of January 1963, Fazal Ahmad and Dost Muhammad P. Ws. produced Ashiq Din appellant along with the pistol P.22 snatched from him before the Sub‑Inspector, Police. The empty P. 23 was stuck in its chamber. The Sub‑Inspector took it into possession and sealed into a parcel. On search of the person of Ashiq Din appellant, the Sub‑Inspector, recovered the bandolier P. 26 containing 20, 12 bore cartridges Exh. P. 25/1‑20 and five 303 live cartridges Exh. P. 27/1‑5 which were taken into possession and sealed into a parcel. Fazal Ahmad produced the spear P. 24 which was taken into possession by the investigating officer. Ashiq Din had injuries on his person. The Sub‑Inspector prepared his injury statement and got him medically examined. Foot Constable Mauladad and H. C. Ghulam Muhammad had injuries on their persons. The Sub‑Inspector prepared their injury statements and got them medically examined. The appellants were arrested on the 12th of January 1963.
5. The autopsy on the dead bodies of F. C. Raj Muhammad and Ahmad Khan was conducted by Dr. Muhammad Sharif (P. W. 1) separately on the 13th of January 1963. They had:‑‑
Foot Constable Raj Muhammad had a firearm wound of entry 1" x 1" on the left side of the abdomen 3" in front of the tip of left 11th rib.
Death, in the opinion of the doctor, was due to shock and haemorrhage, caused by rupture of small and large intestines. The injury was caused by firearm which was sufficient to cause death in the ordinary course of nature.
Ahmad Khan deceased had:
(1) A firearm wound of entry 1/3" x 1/3" on the outside of right arm 1 " above the right elbow joint. The margins of the wound were inverted.
(2) A firearm wound of exit " x " on the inner side of the right arm, 4" above the elbow joint.
(3) A gun‑shot wound of entry 1/3" x 1/3" on the outer side of right chest, 3" below the opex of right axilla.
(4) A fire‑arm wound of exit 1 " x 1" on the outer side of left chest 6" below the left armpit.
Death, in the opinion of the doctor, was due to shock and haemorrhage caused by rupture of both lungs, heart and liver. Injuries Nos. 3 and 4 were sufficient in the ordinary course of nature to cause death. The injuries were caused by firearm.
Ashiq Din Appellant, F. C. Mauladad and Ghulam Muhammad, Head Constable P. Ws. were examined separately by Dr. Zamal‑ud‑Din Ahmad (P. W. 2) on the 12th of January 1963 who found the following injuries on their persons:‑--
Ashiq Din appellant had:
(1) An incised wound 2" x 1/3" x bone deep situated on the right side of the head 4 " above the root of the left ear.
(2) A contused wound " x 1/8" x scalp deep on the occipital region of head 6" away from the root of the left ear.
(3) A contused wound " x 1/8" scalp deep situated on the left side of occipital region 1/3" behind injury No. 2.
(4) A contused wound " x " x scalp deep situated on the occipital region of the head on the right side.
(5) An abrasion " x " situated on the right side of the upper part of the back a outer to midline.
(6) A swelling 3 " x 3" on the back of left hand.
(7) An abrasion in an area of 1 " x 1 " on the middle of the back of the right forearm.
Injury No. 1 was grievous and the rest were simple. Injury No. 1 was caused by some sharp‑edged weapon while the remaining injuries were caused with some blunt weapon.
F. C. Mauladad P. W. had:
(1) A swelling on the back of left hand 2" x 2" accompanied by pain.
(2) An abrasion " x " on the upper part of the back of the proximal phalanx of the middle finger of the left hand.
(3) An abrasion " x " situated on the back of the upper part of the proximal phalanx of the left index finger.
(4) An abrasion 1" x 1" on inner and upper part of the right thigh.
All the injuries were simple, caused by some blunt weapon.
Head Constable Ghulam Muhammad P. W. had:
(1) An abrasion 1/8" x 1/8'' on the back of distal phalanx of the right thumb.
(2) An abrasion " x " on the back of the middle phalanx of the right index finger.
(3) A swelling accompanied by pain in the right wrist joint.
(4) An abrasion 1/8'' x 1/8" on the inner side of proximal phalanx of the left thumb.
(5) A contused wound " x 1/8" on the outer side of the proximal phalanx of the left index finger.
(6) A contused wound 1/3" x 1/5" on the lower part of the back of middle phalanx of the left middle finger.
(7) An abrasion 1/10" x 1/10" on the inner side of the proximal phalanx of the left ring finger.
(8) An abrasion 1/10" x 1/10" on the back of the middle phalanx of the left little finger.
(9) A bruise " x " on the left shoulder 1" above the left shoulder joint.
All the injuries were simple, caused by blunt weapon.
6. The appellants pleaded not guilty to the charge and denied the prosecution allegations against them. When called upon to explain why they had been implicated in the case, the appellants explained as under:‑
"I my brothers Muhammad Khan accused and Ahmad Khan deceased were sleeping in our house when before sargiwela, Raj Muhammad deceased entered our kotha after opening its door. The noise of his footsteps made Ahmad Khan woke up who was having an illicit gun in his bed. As it was dark he took Raj Muhammad as an enemy. We had enmity with Ghulam Hussain, etc. of our village. Raj Muhammad pointed his rifle towards him and he in leis self‑defence fired with his gun causing the death of Raj Muhammad deceased. The report of the firearm awakened me and Muhammad Khan my brother. Amin and Ali accused were not with us. Thereafter Ghulam Muhammad Head Constable beat me and got Ahmad Khan deceased fired at after having been apprehended. The whole story has been concocted by the police to save Ghulam Muhammad and his constables from legal punishment. Haibat, Amir, Talib or Ahmad Yar P. Ws. were not at the spot. They have been put up as they are our enemies and it was on their Instance that the police had come to village Pelowains."
7. No evidence was produced in defence.
8. At the trial, Amir Khan (P. W. 17), Haibat Khan (P. W. 18), Talib Chaukidar (P. W. 19), Ahmad Yar (P. W. 20), F. C. Muhammad Siddique (P. W. 21). F. C. Ali Muhammad (P. W. 22), F. C. Mauladad (P. W . 23), F. C. Muhammad Feorze (P. W. 24), Salamat Ali (P. W. 25), F. C. Abdul Haq (P. W. 26), and H. C. Ghulam Muhammad (P. W. 28), gave direct evidence. The gist of their evidence is that on the eventful day, they went to the house of Ashiq Din in the area of village Pelowains at sunrise. Six out of the seven armed Constables, who were with the Head Constable, took positions in front of the house of Ashiq Din appellant. They were told by the Head Constable not to open fire till they were ordered to do so. Head Constable Ghulam Muhammad, Amir Khan, Haibat Khan and F. C. Raj Muhammad then went towards the kotha of Ashiq Din. Foot Constable Raj Muhammad handed over his rifle to F. C. Muhammad Feroz before he accompanied the Head Constable and others towards the kotha. He had a bandolier containing, .303 cartridges when he entered the kotha followed by the Head Constable. Amir Khan and Haibat Khan P. Ws. remained outside the door of the kotha. Ashiq Din, Amin Ali and Muhammad Khan accused were present inside the kotha with Ahmad Khan who was killed in the encounter.
9. The story further goes that Ashiq Din got up and fired at F. C. Raj Muhammad with a gun. Foot Constable Raj Muhammad was hit on the left flank and fell down. Amir Khan, Haibat Khan and H. C. Ghulam Muhammad ran towards the kotha of Haji Shah Beg. The Head Constable then ordered the culprits to throw away the arms, raise their hands above the head and come out of the to it and instead started firing. Head Muhammad accused in self‑defence for about half an hour. Ashiq Din the kotha with a pistol in his hand and firing while running from the spot. accused) then came out of the kotha to escape. Ali was having a rifle while Amin had a pistol. They also continued firing while running away from the spot. Muhammad Khan appellant was the last to come out of the kotha. He was armed with a gun and when he tried to pass close to the Head Constable, he apprehended him with the help of F. C. Mauladad, Amir Khan and Haibat Khan P. Ws. In the attempt to overpower him, the Head Constable and F. C. Mauladad received minor injuries.
10. The learned trial Judge disbelieved the story that Ashiq Din came out of the kotha armed with a pistol and continued firing while running from the spot in his bid to escape followed by Amin and Ali accused who also escaped after firing at the police party. Last of all Muhammad Khan came out of the kotha and although he had a gun and cartridge with him but the Head Constable apprehended him with the help of F. C. Mauladad, Amir Khan and Haibat Khan P. Ws. and in the scuffle that ensued resulted in minor injuries to the Head Constable and F. C. Mauladad. If six armed Constables were present outside the kotha which had only one door, the culprits could not have possibly escaped from the kotha. The evidence is that Ashiq Din Appellant fired at F. C. Raj Muhammad with a gun but we are called upon to believe that he dropped the gun and carried a pistol when be came out of the kotha. He continued firing with the pistol and managed to escape. The story of his arrest, as narrated by Fazal Ahmad (P. W. 7) and Dost Muhammad (P. W. 8) is puerile. We are told that they, along with two Constables and other persons pursued Ashiq Din. They traced the footprints of Ashiq Din appellant. On the way, they took a camel to facilitate the pursuit. When they had reached at a distance of 2J miles from the west of village Ainno and at a distance of five or six miles from Pelowains they saw Ashiq Din running away. On seeing the pursuit party, Ashiq Din fired three pistol shots at them. The first two shots did not hit any member of the police party and the third shot hit the handle of the spear P. 24 carried by Fazal Ahmad. How ridiculous is the version. It is in the statement of Fazal Ahmad P. W., that he gave a spear injury to Ashiq Din on his head above the right ear from the blade of the spear. Fazal Ahmad inflicted three more blows but this time he used the handle of the spear for the purpose and thus overpowered Ashiq Din with the help of Dost Muhammad. We have already observed that Ashiq Din appellant could not have possibly escaped because there were six armed Constables present outside the kotha in addition to the Head Constable and the members of the public.
11. It is in evidence that a sister of Fazal Ahmad is married to Fatnaya. Amir Khan is the maternal cousin of the said Fatnaya. It is also on the record that Ashiq Din was convicted to a term of imprisonment in a case in which Ghulam Hussain on of Saiful was the complainant. When Ashiq Din was serving out the sentence, Ghulam Hussain developed illicit intimacy with a sister of Ashiq Din. When Ashiq Din was released from Jail his sister Mst. Sahiban gave birth to a daughter. The child was illegitimate. It naturally resulted in enmity between the two families. We have it in the evidence of Fazal Ahmad that Mst. Jindo, a sister of Amir Khan P. W. is married to Ahmad Din Khaba who is the paternal cousin of said Ghulam Hussain. We do not consider it safe to place implicit reliance on the evidence of these witnesses. The prosecution failed to examine Muhammad Khan from whom the members of the pursuit party took the camel as a witness.
12. Ashiq Din appellant had seven injuries on his person including three contused wounds on the head and an incised wound 2" x 1/3", bone deep, situated on the right side of the head. The rest of the injuries were comparatively minor. The sharp weapon injury on the head of Ashiq Din was grievous. The doctor opined that this injury could be caused with a hatchet. The remaining injuries were the result of the use of a lathi. Ashiq Din was unconscious when he was taken to the hospital. The story of the pursuit of Ashiq Din appellant, his firing with the pistol at the members of the pursuit party and his having received injuries at the hands of Fazal Ahmad P. W. with a spear, seem to have been concocted in an attempt to save the police from the consequences of the use of 3rd degree methods. The trial Judge decided not to accept this part of the story as correct. He came to the conclusion that Ashiq Din appellant was apprehended at the spot and subjected to torture as a result of which he got simple and grievous hurt. We agree with him on this point.
13. Similarly, the story about the escape of Ali and Amin accused bristles with improbabilities. Had they been in the kotha, they could not have possibly escaped after the encounter with the police in which a constable was killed because they were heavily outnumbered and must have exhausted ammunition, if any, they had with them as the firing continued from both the sides for about half an hour. Sub‑Inspector Muhammad Zaman (P. W. 29) claimed to have arrested Amin and Ali accused on the 20th of January 1963 from a place which is at a distance of one mile in village Burana. The person of Amin was searched in the presence of Ghulam Hussain (P. W. 10) and Muhammad Ramzan (P. W. 11). The key P. 31, handkerchief P. 56, Clasp‑Knife and Rs. 154 in cash were recovered from him which were taken into possession vide memo. P. W. Ghulam Hassan is a resident of village Khatwan which is at a distance of 20 or 25 miles from village Pelowains where the occurrence had taken place. Village Burana is at a distance of seven or eight miles from his village. He is neither a Lambardar nor a B. D. member. He readily admitted that he usually joins police investigations. The village of Muhammad Ramzan is at a distance of 13 miles from Pelowains. The place where Amin and Ali accused were arrested is at a distance of four miles from his village. Ali and Amin were interrogated by the Sub‑Inspector Police. Ali led the police to his residential kotha and took out the rifle 303 wrapped in Dhoti P. 34 from under a heap of Bhoosa. Five 303 Darra‑made cartridges P. 35/1‑5 and 27 cartridges of 303 bore which were the property of the police were also recovered from the same place 15ing wrapped in a piece of cloth P. 37. Amin accused got recovered pistol P. 28 from the box P. 30 lying in the kotha of his mother. The key P. 31 recovered from Amin earlier fitted the lock P. 32 on the box. An empty was found stuck in the chamber of the pistol. Two '12 bore cartridges were also recovered from this box. They were taken into possession and sealed into a parcel. Malik Fateh Khan (P. W. 12), a member of the Union Council, Adhikot, and Amir Khan (P. W. 17) supported the recoveries in addition to Sub‑Inspector, Police. The trial Judge, for good and sufficient reasons, disbelieved the recovery of arms and ammunition from Amin and Ali accused. The prosecution to procure conviction of Ali and Amin also introduced a witness named Madar (P. W. 9) from Mianwali District to prove that after the occurrence Amin and Ali visited him and stayed with him for two days. Since they did not disclose to him the object of their visit, Madar continued pressing them and finally it was stated that they confessed that they had killed a police constable and a goldsmith of their village had also been killed in the transaction. Madar then told them to leave his Dera. Madar was unable to give the father's name of Ali or Amin. He did not know any of their relatives. He stated before the committing Magistrate that Ali and Amin were not known to him prior to the day they had visited him. He stated before the Tribunal who tried the accused under the Criminal Law (Amendment) Act, that he never visited village Pelowains. The myth about the visit of Ali and Amin to Mankera was thus exploded.
14. Madar never stated to the police, the Tribunal or the committing Magistrate that Ali and Amin told him that they were companions of a goldsmith who had fired and caused the death of a police constable. No corroboration of the so‑called extra‑judicial confession of Ali and Amin was forthcoming. The probabilities favour the view that they were falsely implicated at the instance of Amir Khan P. W. whose close relatives on one side and Ali and Amin accused on the other had been involved in murder cases. The relevant portion from the statement of Amir Khan fn which enmity with the accused has been brought out, is reproduced below for the proper appreciation of his evidence:‑--
"Muhammad Nawaz is my mother's brother. He was challaned in a theft case, but I do not know if Jhangi Ram father of Ashiq accused appeared as a P. W. against him. Jhangi Ram brought a suit for the sale of the lands belonging to my maternal‑uncle Muhammad Nawaz and in that case I prosecuted the claim of Muhammad Nawaz as a Mukhtar. That land was ultimately auctioned and is now with Ashiq Din accused. It is correct that a year ago, Ali accused filed a complaint against me alleging that I had murdered Mst. Imam Bibi and that the police has been investigating that complaint. I was a prosecution witness in the murder case of Mulkha. It Is incorrect that Muhammad Amin accused gave me a beating in the house of Thirkhans. I had summoned a tehsil peon for the recovery of the land revenue from the accused and it was that peon who was given beating by Amin accused. It is correct that a relation of Amin and Ali accused was murdered in Jail Shahpur Sadar. My brother Gehla and my sister's son Mulkha were challaned for that murder and were sentenced to death which sentence was confirmed by all judicial tribunals and their sentence was commuted to transportation for life by the Provincial Government. Mawaz from the brotherhood of the accused appeared as a P. W. in that case but I cannot say if he was a cousin in the second degree of the accused."
The trial Judge considered Amir Khan as highly interested witness and was of the view that it was unsafe to rely on his evidence. He held that the prosecution failed to establish the case against Ali and Amin accused. There is thus no escaping the conclusion that the police fabricated the story about the escape of Ashiq Din, Amin and Ali from the kotha which, under the circumstances, it was not possible. We have no manner of doubt left in our mind that the police tortured Ashiq Din appellant resulting in grievous hurt to him on the head by means of sharp‑cutting heavy weapon:
15. Dost Muhammad and Fazal Ahmad are proved to have lied. Amir Khan gave evidence due to enmity with Ali and Amin accused. The remaining witnesses including the members of the police force also lied when they deposed that Ashiq Din appellant escaped, was arrested by a pursuit party who caused him injuries and that Ali and Amin were also present in the Kotha and had managed to escape.
16. The evidence as regards the main occurrence has also to be approached with caution. We have given detailed reasons for excluding from our considerations the evidence of Amir Khan. The prosecution is thus left with the evidence of Haibat Khan Lambardar, Talib Chaukidar, Ahmad Yar, F. C. Muhammad Siddique, F. C. Ali Muhammad, F. C. Mauladad, F. C. Muhammad Feroz, Salamat Ali and F. C. Abdul Haq. The Lambardar stated that he was called to the Dera of Abdul Ghafoor, Chairman, through Talib Chaukidar, and the report Exh. P. T. was recorded by the Head Constable who gave it to Falak Sher Chaukidar to take it to Noorpur Police Station. Haibat Khan stated, in cross‑examination, that the sun had not yet arisen when they went to the house of Ashiq Din Appellant. Talib Chaukidar gave the time of the arrival of the police party in village Pelowains as midnight. The evidence of the remaining witnesses is unanimous that they went to the house of Ashiq Din at morning prayer time. Haibat Khan Lambardar admitted that he is married to Mst. Jawal who is the daughter's daughter of one Sahib. Alam Sher father of Kaitu and Sahib are married to two sisters and are also first cousins inter se. As third sister of Mst. Tanu and Mst. Khatoon wives of Sahib and Alam Sher is mother of Lal son of Khuda Yar. Ghulam Mohy‑ud‑Din, father of Amin and Ali accused, was murdered. Haibat Khan Lambardar expressed ignorance if Lal and his brother Ahmad Yar sons of Khuda Yar were challaned in that connection. This was admitted by Amir Khan P. W. Haibat Khan admitted that Ghuiam Muhammad is the father‑in‑law of Amir Khan P. W. He expressed ignorance of Mst. Khatoon, mother of Kattu son of Alam Sher, is mother's sister of said Ghulam Muhammad. The witness stated before the Tribunal that Ghulam Muhammad father‑in‑law of Amir Khan, was a mother's sister's son of Kattu son of Alam Sher. Haibat Khan tried to suppress the truth when he stated that he was not aware if Ashiq Din Appellant was convicted to one year's rigorous imprisonment in a criminal case sometime before the occurrence and that he appeared as a witness against him. Haibat Khan also appears to have given evidence in the present case because of ill‑will against Amin and Ali. The witness admitted that his daughter is married to Sikandar son of Ahmad. Haq Nawaz is the maternal‑uncle of Amin and Ali. In consolidation proceedings some land belonging to said Ahmad fell to the lot of Haq Nawaz mentioned above. There had been litigation over the land for the last three or four years between the parties. Haibat Khan Lambardar was prosecuted for the murder of Nur Muhammad. The witness denied that Khuda Yar was father's brother of said Nur Muhammad. He is contradicted on this point by Amir Khan (P. W. 17). Haibat Khan also expressed ignorance if Mst. Badhai was a paternal grandmother of Amin and Ali accused or that she was a sister of Khuda Yar. Talib Chaukidar admitted that he lived in a kotha given to him by Amir Khan P. W. at his Bhan which is at a distance of 1 miles from the Abadi of village Pelowains. Ahmad Yar (P. W. 20) belongs to Nurpur, has no property or relatives in village Pelowains. The reason given by him for accompanying the police to village Pelowains is not at all convincing. He said in his statement that four years ago, at about midnight, a constable came to his house and asked him to give him his camel but he refused and volunteered to accompany the constable so that he should remain with the camel all the time. The witness stated to the committing Court that he did not know the name of Muhammad Khan appellant. He stated to the committing Magistrate that he had seen Ashiq Din appellant moving about somewhere at Nurpur and someone from Nurpur had told him his name. Village Pelowains has a population of 5,000 or 6,000 souls. The witness stated before the police that from out of the persons of village Pelowains other than the P. Ws. in the present case, he knew only four persons, namely, Zaman, Allah Yar. Another Allah Yar and Kattu Bangi son of Alam Sher. The witness did not state to the police that they had first gone to the dera of Amir Khan P. W., and from there to the house of Abdul Ghafoor P. W. where a complaint was recorded and forwarded by the Head Constable to the Thana and from there they had gone to the spot. Ahmad Yar said in his statement to the police that the firing continued for three hours. To be more exact, he stated before the Tribunal that the occurrence lasted for about three hours. Ahmad Yar admitted that he was a prosecution witness in a murder case in which a Sub‑Inspector had been put to death in the jurisdiction of Police Station Nurpur. On going through the evidence of Ahmad Yar, we doubt if he was really present at the time of the occurrence. The rest of the eye‑witnesses are the members of the police force. It is unimaginable that knowing full‑well that the persons inside the kotha which F. C. Raj Muhammad deceased had to enter ahead of others had illicit arms with them still he decided to hand over his rifle to F. C. Muhammad Feroze (P. W. 24) and go inside the Kotha empty‑handed. Foot Constable Muhammad Feroze denied having stated before the committing Magistrate that F. C. Raj Muhammad deceased handed over his rifle to him before he entered the kotha of Ashiq Din appellant. He was duly confronted with his earlier statement. On going through the ocular testimony, we get the impression that nobody actually saw Ashiq Din firing the fatal shot which killed the constable. Foot Constable Raj Muhammad was the first to enter the kotha. He was immediately shot at and was mortally wounded. He dropped to the ground dead. The Head Constable, who followed him, fled. So did Amir Khan and Talib Chaukidar, who were present outside the kotha. Talib Chaukidar stated, at the trial, that he mentioned in his police statement that he was seeing inside the kotha and that it was Ashiq Din who had fired within his sight at F. C. Raj Muhammad. The witness did not say so in the police statement (copy Exh. D. E.). The witness omitted to state to the police that Ashiq Din fired with a gun. He stated to the police that there was a fire inside the kotha and that as only the Head Constable came out of the kotha, he thought that Raj Muhammad deceased had been murdered. Talib Chaukidar stated to the committing Magistrate that the Head Constable jumped out of the Kotha after two rounds had been fired. The admission is significant. One of the shots must have been fired either by the deceased if he had a rifle before he was hit or the Head Constable after the deceased was shot which killed Ahmad Khan. The constables who had taken positions outside the kotha and had been concealing themselves could not have possibly fired and killed Ahmad Khan who was inside the kotha. Ahmad Khan could not have possibly been shot dead as a result of cross firing. Who actually fired and killed Raj Muhammad cannot be determined with Judicial certitude on the material before us. To us, it is clear that Ahmad Khan was shot dead by the police and most probably because he fired at the deceased constable. We do not agree with the finding of the learned trial Judge that from the evidence of Haibat Khan Lambardar and H. C. Ghulam Muhammad it was proved beyond reasonable doubt that F. C. Raj Muhammad was shot by Asbiq Din appellant.
17. The defence plea that Ahmad Khan fired with the gun at F. C. Raj Muhammad when he entered the kotha where the three brothers were hiding, when it was still dark, cannot be ruled out to a moral certainty. We find nothing improbable about it.
18. The unfortunate incident took place due to tactical mistake on the part of the Head Constable who conducted the raid. He should have, in the first instance, called upon the inmates of the kotha to throw away the weapons and come out raising their bands above the bead as be did after the tragedy had been enacted as a result of lack of foresight on his part. There was no sense in either F. C. Raj Muhammad or the Head Constable or both entering the kotha if the Head Constable bad reliable information that persons present inside the kotha had illicit arms with them. They could well expect the use of firearms by the miscreants. The deceased constable, in the circumstances, would have peen the last person to hand over his rifle to F. C. Muhammad Feroz and if he really made over his rifle to F. C. Muhammad Feroze, the Head Constable should not have permitted him to do so knowing full‑well that Raj Muhammad deceased was running a grave risk in entering the kotha unarmed where more than one person was expected to be present in possession of illicit arms. We are of the opinion that the occurrence did not take place in the manner as alleged by the prosecution. It seems the Head Constable along with seven constables went, heavily armed, to the kotha of Ashiq Din appellant without recording any report that there was reliable information that Ashiq Din and others were in possession of illicit arms and after the occurrence the statement Exh. P. T. of Abdul Ghafoor, Chairman, Union Council (P. W. 15) was recorded to justify the action of the police. Abdul Ghafoor did not stick to his statement. When examined, at the trial Abdul Ghafoor resiled from his statement which he made before the committing Magistrate. His statement before the committing Court was brought on the record under section 288, Cr. P. C. It was treated as substantive evidence by the trial Judge who came to the conclusion that Exh. P. T. was recorded by H. C. Ghulam Muhammad at 6‑30 a.m. at the instance of Abdul Ghafoor, Chairman. There are indications in the record that no such statement was recorded and much less sent to the Thana for entering a report before the actual occurrence. Haibat Khan Lambardar did not say so in his statement to the police that he was summoned to the dera of Abdul Ghafoor by the Head Constable through Talib Chaukidar and that the Head Constable recorded the statement of Abdul Ghafoor and sent it to Nurpur Police Station through Falak Sher Chaukidar for the registration of a case. Talib Chaukidar omitted to mention in his statement to the police that he joined the raiding party at the dera of Amir Khan P. W., that the police party had gone to the house of Abdul Ghafoor, Chairman and that he was sent to bring Haibat Khan and Falak Sher P. Ws. The witness did not say in his statement to the Police that the Head Constable recorded the statement Exh. P. T. of Abdul Ghafoor and sent it to the Thana through Falak Sher P. W. Similarly, Ahmad Yar did not state to the police that he had first gone to Amir Khan P. W. and from there to the house of Abdul Ghafoor where a complaint was recorded and was sent to the Police Station and then they had gone to the spot. The witness stated to the Tribunal that the occurrence lasted for about three hours.
19. Foot Constable Muhammad Siddique stated to the Police that the house of Ashiq Din appellant was raided on the night intervening the 11th and 12th of January 1963. The witness did not say in his statement to the police that the occurrence took place after sunrise. He did not state to the committing Magistrate that the occurrence took place after sunrise. The witness failed to mention before the committing Magistrate that F. C. Raj Muhammad handed over his musket to some one else before entering the kotha. Foot Constable Ali Muhammad also did not say so in his statement before the committing Magistrate. He did not state to the police or before the committing Magistrate that Ahmad Yar was also with the police party when they started from the Thana. The witness also omitted to mention in his police statement that they had gone to the dera of Amir Khan and had joined Amir Khan and Talib P. Ws. from there. The witness stated in Exh. D. H. that they had come to village Pelowains and had raided tae house of Ashiq Din on the previous night. Foot Constable Mauladad did not state to the police that Ahmad Yar P. W. was with them when they started from the police station. He stated to the police that they started from the police station on the preceding night and raided the house of Ashiq Din. The witness did not say to the police that the occurrence took place at sunrise. It is in the statement of F. C., Muhammad Feroze which he made to the committing Magistrate, that when they started from the police station only one police constable was left at the Thana Why the Head Constable set out for village Pelowains with such a large force and so heavily. armed if he had not previous information about the presence of illicit arms with Ashiq Din and his companions is not explained. It is unbelievable that he received such an information after he had reached village Pelowains from Abdul Ghafoor, Chairman, and had a case registered before the raid was made at the kotha where Ashiq Din and his brothers were present. Not one out of the six constables, stated to the police or the committing Magistrate that the occurrence took place at sunrise. The statement of H. C. Ghulam Muhammad which he made in cross‑examination is most damaging and is reproduced below for the sake of convenience:‑
"I had mentioned in the Karavai‑police under the statement of Abdul Ghafoor (Exh. P. T.) and bad mentioned therein that I along with 7 constables had come to village Pelowains. I had not mentioned therein that Ahmad Yar P. W. was also with us. I had not stated in the said Karavai police that before coming to village Pelowains I had gone to the dera of Amir Lambardar and had joined Amir and Talib P. Ws., from there. I had not mentioned therein that these two P. Ws. were members of the police party at that time. It is correct that in (Exh. P. T.) after the words "Insadad‑kia‑jawai" it is recorded "police ko daikh ker aslaha‑am‑taor‑per chhupa‑laite hain." These are the last words in statement Exh. P. T. I had not mentioned neither in report Exh. P. S. or in police proceedings under Exh. P. T. that the purpose of the police party was to effect Nakabandi. After Exh. P. T. had been recorded we had at once got up for the house of Ashiq Din but again stood there for 20 minutes. Those 20 minutes were taken in my discussion with Abdul Ghafoor who had refused to accompany us. Abdul Ghafoor had said "that the accused are from his Brathari, he cannot go near them and that if he does so, they would become his enemies". I do not remember that if I told the police In my statement that Abdul Ghafoor had refused to join as the accused were his brathari. (Confronted with his statement before the police, copy Exh. D. O. Not so recorded). I do not remember if I had stated in the said statement that Abdul Ghafoor had refused to accompany saying that his enmity with the accused would get accelerated. (Confronted with Exh. D. O. so recorded)."
20. The possibility about the Head Constable having made a raid at the house of Ashiq Din and his brothers during the night could not be ruled out. Six of the constables who were with the Head Constable on this occasion had 50 rounds each and only one police constable was left at the Thana when the Head Constable started for the place of occurrence with seven constables. The story about the Nakabandi duty has not been substantiated and we are not prepared to believe the word of mouth of H. C: Aurangzeb (P. W. 27) when he states that the police party left the Thana on January 12, 1963 at 3 a.m. after making entry No. 13 in the daily diary. This witness was directed by the committing Magistrate to produce the Roznamcha at the trial. Aurangzeb had the audacity to make a false statement on this point denying it. The Roznamcha instead of being preserved was destroyed. The statement of H. C. Aurangzeb was different in material particulars from the statement which he had made before the committing Magistrate on the 8th of May 1964 and was brought on the record under section 288, Cr. P. C. The daily diary was destroyed in this case deliberately so that the Courts are not in a position to arrive at the truth by applying the checks in the light of entries in the Roznamcha. H. C. Aurangzeb lied on more points than one and the trial Judge commented adversely about the destruction of the Roznamcha and summed up his conclusion in this regard as under:‑--
"At the same time I may point out that the non‑production of the daily diary in the Court in spite of a direction of the C. M. to that effect is most objectionable. In order to justify the non‑production of the daily diary in this Court, Aurangzeb H. C. (P. W. 27) made a contradictory statement in this Court. He denied that he was ever directed by the C. M. to produce the daily diary in this Court. His statement in this Court was materially different from his statement made before the C. M."
21. There is nothing on the record to show that H. C. Ghulam Muhammad was an officer incharge of a police station at the material time. He was not an officer investigating into an offence in that we have already come to the conclusion that the report Exh. P. T. was introduced into the case later to cover the illegality committed by the police. The Head Constable did not record in writing the grounds for making a search of the house of Ashiq Din and his brothers. As such the act of the A Head Constable suffered from a complete absence of jurisdiction. The search intended to be made was without jurisdiction and bad in law and section 99, P. P. C. could not be invoked in favour of the police raiding party.
22. The result is that the appeal is allowed. The convictions and sentences of Ashiq Din and Muhammad Khan appellants are set aside and they are ordered to be acquitted. The death sentence imposed on Ashiq Din is not confirmed. We direct that the appellants be set at liberty forthwith provided always that their detention is not necessary in connection with any other case.
23. The police are to thank themselves for the tragic death of Foot Constable Raj Muhammad. Ahmad Khan, in our opinion, was put to death in retaliation. It is unfortunate that for want of proof the person or persons responsible for shooting him down have gone unpunished.
24. The trial Judge in paragraph 32 of the judgment also disbelieved the story as regards the commission of offence under section 353, P. P. C. He observed as under‑
"As regards charge under section 353, P. P. C., I have disbelieved that part of the prosecution story which relates to the coming out of the accused from the kotha after the firing. It is alleged by the prosecution that Muhammad Khan accused had come out of the kotha and when an attempt was made to apprehend him he assaulted H. C. Ghulam Muhammad and Maula Dad F. C. This version is belied by the medical evidence also. Haibat Khan P. W. 18 stated that Muhammad Khan accused had given blows to the Head Constable with a knife. The medical evidence is to the effect that the injuries on the person of Ghulam Muhammad H. C. and F. C. Maula Dad had been caused by blunt weapons. The medical evidence also reveals that the possibility of injuries on the person of H. C. Ghulam Muhammad and those of F. C. Maula Dad having been either self‑suffered or suffered through friendly hands cannot be excluded. It is, therefore, clear that the prosecution has failed to bring home to the accused the offence under section 353, P. P. C. They are, therefore, acquitted of the said charge."
25. If the Head Constable was capable of having the injuries fabricated on his person to bolster up the case, no reliance, in our opinion, could be placed on his testimony even as regards the actual occurrence. The whole case is a clumsy attempt at fabricating evidence, padding and the version of the police is pregnant with serious doubts.
26. A copy of the judgment to be sent to the Chief Secretary for necessary action.
Appeal allowed.
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