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Criminal Appeal No. 51 of 1964, decided on 29th August 1967.

Ss. 24 & 26‑Confession Extra-judicial confession made in presence of Police Officer-- Cannot be proved against maker.

Inimical and interested eye-witnesses No reliance can be placed on evidence of such witnesses unless corroborated by some other evidence on record.

Ss. 395 & 397‑Extra judicial confession ascribed to accused found to have been made in presence of Police Officer‑‑Evidence of inimical and interested eye‑witnesses not corroborated by some other evidence‑Held, prosecution failed to bring home guilt to accused‑‑Conviction and sentence set aside.

Muhammad Hayat Junejo for Appellants.

Ali Raza for Addl. A.‑G. for the State.

Dates of hearing : 22nd and 23rd August 1967.

Hajan Khan, Karim Dad and Mewo appellants were con victed under section 395, read with section 395, P. P. C. and cash 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 tot land having Survey Nos. 88, 92, 212, 213 and 219 of Deh Paboro, Taluka Shahdadpur, District Sanghar, on lease from one Mehdi Shah. Yayub, brother of Hajan Khan appellant, filed a suit claiming that Mehdi Shah had leased out the land to him anti 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 laud anal started managing it from. Rabi, 1960‑61. Sardar Mu4ammad (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 hart 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 consideration, i.e. the 31st of March 1961, the possession of the land had not yet been delivered to Adam 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 dice 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 Aslam Hussain Shah P. W. as to what had happened. The distance between the disputed land and Nawabshah is about the seven miles. Aslam Hussain Shah P. W. told Sardar Muhammad P. W. to go and inform the receiver. Sardar Muhammad P. W. thereafter left immediately for Shahdadpur, reaching there on the day, i. e. the 1st of April 1961, at about 4 p. m. As and informed Sibtain Shah P. W. about the occurrence. He 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 Sibtan 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 elate. 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 lie found them already present. He was accompanied by Bailiffs Muhammad Juman (P. W. 5) 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 in Shah P. W. by Sardar Muhammad P. W. The receiver made inquiries from Hajan Khan, appellant, who admitted that lie had got the crop harvested and removed to his own threshing‑floor. In other words he is alleged to have confessed 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 out‑Post 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 nothing on the record to show that this statement was ever sent to Police Station Shahpur Chakar and that formal first informa tion 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 are registered, is only kept at the police station and not at the police out‑post. 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 recording 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 out‑post 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 Jaman 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 beet made when two police officials, namely, Muhammad Khan, 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 Committing 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 Aslam Hussain Shah P. W., who had a dispute with Yaquib, brother of Hajan Khan appellant. Karim Dad and Mewo appellants arc harts of Yaqub and Hajan Khan appellant. It is well-established rule of caution that no reliance can be placed on inimical and interested eye‑witnesses, unless their evidence is corroborated by some other evidence on the record. In the present case no such corroboration is forthcoming on the record. In the find that the investigation in this case has not been above board. According to Sardar Muhammad P. W. 11 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 lead 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 Sibtan 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.

Appeal accepted.

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