1980 PLP 391 (SCMR)

Daragali Miah v. Emperor A I R 1940 Cal. 328 ; Makhan and others v. Emperor A I R 1945 All. 81 overruled by Zulfiqar Ali Bhutto and others v. The State P L D 1979 S C

53. Malik Mohammad Afzal, Advocate instructed by Hamid Aslam Qureshi, Advocate‑on‑Record (absent) for Petitioner. Sheikh Riaz Ahmad, Assistant Advocate‑General (Punjab) for the State. Date of hearing : 22nd December, 1979. ANWARUL HAQ, C. J.‑Appellant Abdul Majid son of Mehr Din, along with another person also named Abdul Majid but with a different parentage, was prosecuted under section 304‑A of the Pakistan Penal Code for causing the death of one Ali Muhammad by a rash and negligent act while driving a truck, but the Magistrate committed the accused per sons to the Sessions Court for trial under section 304‑II and section 201 of the Pakistan Penal Code read with section 34 thereof. They were. tried by the learned Sessions Judge, Lyallpur, who acquitted both the accused of the charges framed against them, but convicted them under section 297 of the Pakistan Penal Code on the ground that they had deliberately offered indignity to the corpse of Ali Mohammad deceased by throwing it on the road side. Each of the accused persons was sentenced to under go rigorous imprisonment for one year and also to pay a fine of Rs. 2,

000. On appeal, a learned Judge of the Lahore High Court acquitted the other Abdul Majid, but dismissed the appeal of the present appellant, mainly on the basis of his own admission that he had got perplexed and had taken the dead body of Ali Mohammad on his truck and thrown it into the bushes. Leave to appeal was granted to examine the contention that there was no evidence to show that the appellant had committed any trespass in any place of worship or any place set apart for the performance of funeral rites or that he had offered any indignity to a human corpse. Malik Mohammad Afzal, Advocate, appearing on behalf of the appellant, submits that the facts proved or admitted on the record do not disclose the ingredients of the offence made punishable under section 297 of the Pakistan Penal Code ; and that; in any case, the appellant could not be convicted under this section without a separate charge having been framed there under. As to the first point, it will be advantageous to reproduce here the words of section 297 of the Penal Code " Whoever, with the intention of wounding the feelings of any person, or of insulting the religion of any person, or with the knowledge that the feelings of any person are likely to be wounded, or that the religion of any person is likely to be insulted thereby, commits any trespass in any place of worship or on any place of sepulture, or any place set apart for the performance of funeral rites or as a depository for the remains of the dead, or offers any indignity to‑ any human corpse, or causes disturbance to any persons assembled for the performance of funeral ceremonies. shall be punished with imprisonment of either description for a term which may extend to one year, or with fine or with both. We find that the appellant stated during the commitment proceedings that he had become confused due to the accident, and threw the dead body somewhere on the road side During the trial, he stated that he got per plexed so he went towards Sargodha and dropped the dead body of Ali Mohammad in the area of Lalian. From these two statements it becomes abundantly clear that the appellant had carried tie dead body of Ali Mohammad deceased in his truck and then thrown it on the road side. It is possible to agree with the learned counsel that the appellant had no intention to injure the feelings of any person, but he must certainly be burdened with the knowledge that, by throwing the dead body in the bushes on the road side, he was offering indignity to a human corpse and thereby injuring the feelings of the relations of the deceased. It would be seen, therefore, that one of the ingredients of the offence of section 297 of the Pakistan Penal Code stood proved on the record on the basis of the appellant's own admission. There was some argument at the Bar as to whether all the clauses of section 297 of the Pakistan Penal Code are to be read conjunctively so that even the indignity to the corpse should be offered at a place which is set apart for burial or as a depository for the remains of the dead ; but we do not see any reason to construe the word ‑or", as repeatedly used in this section, to mean ‑and", as indignity to a human corpse can be offered even away from the place set apart for the performance of funeral rites or as a depository for the remains of the dead. It is not possible to, accept the contention that the law makers did not intend to punish such an act which might be absolutely outrageous to all notions of human dig nity and decency, just because it is not committed in a place of burial etc. We consider, therefore, that the language used in the section has to be given its ordinary meaning, with the result that offering indignity to human corpse with the intention or knowledge of injuring the feelings of any person falls within the purview of this section, even though the act is done away from the place of burial etc. In support of the second contention, the learned counsel referred to Daragali Miah v. Emperor (A I R 1940 Cal. 328) and Makhan and others v. Emperor A I R 1945 A11. 812) in which it was held that a person cannot be convicted for an offence which is not cognate to the offences charged, unless a separate charge is framed at the trial. It is not. necessary for us to examine these cases, for this question has been considered at length by this Court in the recent judg ment reported as Zulfiqar Ali bhuoo, and others v. The State (P L D 1979 S C 53) in which the conclusion reached was that a conviction could be recorded for an offence for which no charge had been framed if all the relevant facts were brought out in the evidence and had been put to the accused. In the present case, all the facts were fully brought out at the trial, and, in fact, admitted by the appellant himself. In the circumstances, he could clearly o be convicted under section 297 of the Pakistan Penal Code as the facts constituted the offence made punishable under this section., even though he had not been specifically charged thereunder. As a result, this appeal fails and is hereby dismissed. The appellant shall be re‑arrested to undergo the un-expired portion of his sentence. Appeal dismissed.