1. SHAFIUR RAHMAN, J.-- Leave to appeal was granted to the seven convicts to examine the evidence on which their conviction was based and the correctness of the decision of the Peshawar High Court, dated the 30th of June, 1977 whereby their appeals against conviction and sentence were dismissed with slight modification: The convicts were admittedly the tenants in cultivating possession of the land belonging to Shahzada Mataul Mulk, an uncle of Fakhrul Mulk, Tehsildar under training (P.W.2). The land was located in Sewat, Police Station Lutkoh, District Chitral, By an order of Wazir-e-Azam, Chitral passed on 25-8-1959 they were given a month's time either to accept the position of Khidmati tenants or evacuate the land and houses possessed by them in that capacity. On their not rendering the services, they were ejected from their houses and lands in 1960, In the year 1972, they staged a come-back and forcible re-possessed their lands and houses. A case was registered about it under section 447/448/148!149, P.P.C. On 13-3-1972. In order to get the forcible possession vacated and if necessary to arrest the culprits, Shahzada Fakhrul Mulk (P.W.2) proceeded with a strength of police force of the spot the next day. He kept on negotiating with the convicts and their party-men from 16-3-1972 to 18-3-1972. On the 19th of March, 1972, alongwith the D.S.F. Jan Badshah P.W.5 and a sizeable police strength he went to village Sewat in order, as claimed by Shahzada Fakhrul Mulk, to persuade the occupants to leave the land peacefully. As soon as they reached there, stones were pelted by the convicts and their associates and Abdul Karim, convict also started firing with a shot-gun. In the firing that took place, Nasrullah Constable was hit by a bullet and died at the spot.
2. It was claimed that the shot of Gul Muhammad. Convict had injured Nasrullah Constable and killed him. There were a number of other Constables, seven of them who were injured in the occurrence of whom only Mir Salam appeared as a witness at the trial and the presence of others was considered unnecessary. Abdul Karim was apprehended alongwith his gun. The shot of Aziz convict is said to have injured Purdoom Nawaz, Constable. The first information report was recorded by Muhammad Saeed Khan, S.H.O. (P.W.4) in his own hand and sent to the police station where a case was registered the same day.
3. Nasrullah, Constable, had an entry wound and an exit wound of fire-arm bullet. Mir Salam had a cut wound caused by a sharp-edged weapon, Constable Purdoom Nawaz has a lacerated wound over the left hand. Constable Dawar Khan had a bruise over the back, chest. Constable Aziz had a contused wound on the dorsum of right thigh. Constable Sher Blarag had an abrasion. Of the accused-convicts, Karim and Gulab had injuries on their persons. Karim had two lacerated wounds while Gulab convict had a swelling on the left hand.
4. Blood-stained earth and pebbles were recovered from the spot and also a single barrel gun of .12 bore of Karim with one empty, one empty of 303, five cartridges of .12 bore gun. The houses of the convicts and their associates were searched and weapons, cartridges and empties were recovered but none hatched with the empties etc. Recovered from the spot. The convicts denied allegations against them and their plea was that though they had been ejected from the lands, they had obtained an order from the Governor N.-W.F.P. Pursuant to which they had occupied the land and the houses abandoned by them. One of them Durrani, convict, stated as follows-- "I am innocent and falsely charged at the instance of Shahzada Mataul Mulk with whom I and the other accused had a land dispute and the said land had been ordered to be restored to the Governor of N.-W.F.P. Accordingly, we came to Chitral after 12 years, the then D.C. Chitral seeing the order of the Governor advised us to occupy our old houses in village Sewat. We did accordingly. On the night between 18th and 19th March, when we were sleeping in our houses, our houses were chained from outside and tear-gas shells thrown inside the house. We alongwith our women and children tried to run-away from the houses climbing over the walls and were fired upon by the police. We were empty handed and had nothing to defend ourselves. While it was dark and it was raining with snowfall our houses were burnt and we were encircled by the police, then arrested and chains put in our hands, feet and we were brought to the place of Mataul Mulk where we were beaten up and next morning taken to Chitral on foot. The said land has now been decided in our favour by the Chairman Federal Land Commission."
5. The trial Court rejected the plea taken by the accused by observing as follows- "Thus even if Shahzada Mataul Mulk had no title to the property before the same stood created in his favour by lapse of prescribed period of 12 years. But this is besides the point. The question is whether they could reoccupy the property. This is admitted by them saying that there was a written order of the Governor to that effect in their favour which order is not forthcoming on the record and it is doubtful that such an order was made by the Governor. Even if there was an order or the Governor alleged by the accused it was not open to them to take up arms against the police to resist their arrest sought by them to be made in due course of time."
6. The trial Court also held that it was known to them that a case of trespass had been registered against them in which the police was seeking to apprehend them. Their act was viewed in the light of background described as hereunder- "The police party, it is clear, remained in the vicinity from 15-3-1972 to till the day of occurrence and during this period the then O .S. D. Chitral Syed Israrullah Shah held negotiation with them, but with no success. They remained adamant throughout, with the result that the police had to encircle them, but even then they did not yield. They had made full preparation to meet the police and had also collected several helpers to support them. They have not denied being present in the village on that day and their participation in the resistance is established because one of them namely Karim was apprehended alongwith his gun on the spot during firing, which fact they all admit, in addition to admitting that he (Abdul Karim) and Gulab Khan were also injured on the spot.
7. Therefore, I hold that they had formed an unlawful assembly armed with deadly weapons in order to resist the police to avoid their arrest."
8. All the accused were held guilty under sections 148/302, 307 (seven counts) read with section 149, P.P.C. They were sentenced to life imprisonment and a fine of rupees one thousand each for the offence under section 302/149, and one year's R.I. Under section 307/149, P.P. C. (seven counts) and one year's R.I. For the offence under section 148, P.P.C.
9. On appeal the High Court maintained the conclusion reached by the trial Court that apart from the bare statement the convicts had nothing to substantiate their plea of bona fide entry on the land under the orders of the Governor. After reconsidering the entire evidence, the High Court came to the conclusion and modified slightly the order of the trial Court in the following terms- "As a result we hold that the convictions and sentences of the accused/ appellants under section 302/148/149, P.P.C. Are well-founded and does not require interference by this Court. As far as conviction and sentences under section 307/149, P.P. C. On 7 counts are concerned we find that the injuries on the person of the six constables other than Mir Salam are simple in nature caused with blunt means and most probably stones throwing. The injuries of Mir Salam is also a simple one but as a result of sharp-edged weapon. As such we set aside the convictions of the appellants under section 307/149, P.P. C. On seven counts and instead convict them under section 307/149, P.P.C. On six counts and 324/149, P.P.C. One count and sentence each one of them on each count to six months' R.I. All the substantive sentences viz. Under sections 302, 323, (six counts) 324 and 148, P.P.C.
10. Are ordered to run concurrently. With this modification this appeal fails which is dismissed."
11. Mr. Umar Mehmud Kasuri, Advocate, the learned counsel for the convict-appellants has drawn our attention to the specific points noted in the leave granting Order for doubting the prosecution case from its initiation to the end. For example, according to the learned counsel, the very report which forms the basis of police action and the persons against whom it was directed, had not been brought on the record and it was not clear as to who was sought to be proceeded against. Besides, according to the learned counsel, the defence put up by the appellants of their bona fide re-taking of the possession, sufficient support was found from the recovery memo. EXh.P.M. Wherein it is mentioned that there was a paper from the Governor to the Deputy Commissioner, Chitral, with regard to the dispute over the land which had been taken into possession during the house search of the appellants. The defence of the appellants was entirely based on it. The convicts had to satisfy themselves with bare statement with regard to its contents because the police had got the possession of it and their plea in defence could not be rejected outright without examining that document and getting it produced at the trial. It is further contended that it was rot the intention of the party led by Shahzada Fakhrul Mulk Tehsildar (P.W.2) and Jan Badshah (P.W.5) to either investigate the case registered against them or to apprehend the culprits named in the report. If that had been the intention, they could have accomplished their purpose long before. There was no occasion to negotiate for three days then to get the police strength augmented and thereafter to encircle and victimise them. Besides, from the prosecution's own evidence it appears that there were only seven houses in the locality where the convicts resided. It was from the adjoining localities and other villages that the people had gathered in a large number, according to the prosecution itself, 400 to 500 and there had been cross-firing and it was impossible to identify as to who fired and caused injury to whom. Besides, the injured witnesses should have been produced to state about their assailants and simply because resistance was offered to the Tehsildar and the D . S . P. Who had taken law into their own hands, the appellants could not be made responsible.
12. It is correct that the report which justified the proceedings initiated by Fakhrul Mulk (P.W.2) with such a police strength has not been brought on record or proved and it does not appear as to who were the persons sought to be proceeded against on that report. Fakhrul Mulk admitted that "the accused remained in Sewat from 14-3-1972 to 19-3-1972. They did not come to see me in the rest house". He also admitted that "it is correct that we had taken a decision in a meeting that if the occupants did not accept our offer they would be encircled. "As regards the proceedings undertaken by him, he admitted that "in Sewat we encircled one house and chained the others from outside. When the occupants of the encircled house raised cries, the occupants of the other houses broke open the doors of their houses and came out." It was when police threw tear-gas shells that firing started. A very different statement had been made by Muhammad Saeed Khan (P.W.4) the maker of the first information report. About the occurrence, he started as follows-- "On the day of occurrence we reached Sewat at 6-40 a. m. To arrest the accused. The accused had already taken up positions. We placed the F.Cs. On different points. The accused and their companions who were 200/300 in number stated throwing stones on us. The D.S.P. Ordered for throwing the tear-gas shells. When the tear-gas shells were thrown the accused and others started firing on us".
13. Jan Badshah (P. W.5) stated "the accused and all others with them who were 300/400 in number were firing on us".
14. From the statements of these witnesses, it appears that the police party led by Jan Badshah (P.W.5) had gone to assist Fakhrul Mulk (P.W.2) to get the land vacated by force and they had in that effort encircled during the early hours of the day their houses fully prepared with tear-gas shells etc. It was not with the purpose of simply arresting them and allowing the law to take its own course with regard to the offence reported under section 447/448, P.P.C. In the course of their forcible eviction, not only this but a very, large number of residents of the adjoining villages turned up and some shots were fired though not as numerous as alleged by the prosecution. It was mainly the hurling of the stones that took place. In such a situation, it would have been difficult for the witnesses who had appeared to identify individually each of them particularly when they had no contact with them in the negotiation earlier taking place. In this background of events and on such evidence, the appellants could not be convicted on the capital charge. We accept this appeal, set aside the conviction and sentence. We are told that Gut Muhammad has already suffered the imprisonment awarded to him and has gone out of the prison. The other convicts- appellants were admitted to bail and on their acquittal, they are discharged of their bail bonds.