P L D 1969 Supreme Court 552 (PLP)

M. R. KHAN, J.‑This is a direct appeal from the judgment and order of a Division Bench of the High Court of East Pakistan, convicting the appellant under section 302/109 of the Pakistan Penal Code for abetment of the murder of Khabiruddin Ahmad and sentencing him to transportation for life. The appellant's sentence of one year's rigorous imprisonment imposed by the trial Court under section 201 of the Pakistan Penal Code was also enhanced by the High Court to three years' rigorous imprisonment. The sentences on both the counts were directed to run concurrently. The appellant and 10 others including one Budha Narayan Bose were tried by the Additional Sessions Judge, First Court, Bakerganj, on a charge under section 302/120‑B of the Pakistan Penal Code. The appellant alone was further charged under section 201 of the Code. The trial was held with the aid of four assessors. Agreeing with their unanimous opinion, the trial Court found the appellant and Budha Narayan Bose guilty under section 302/120‑B of the Pakistan Penal Code, convicted them under these sections and sentenced them to rigorous imprisonment for four years and a fine of Rs. 300 each and, in default, to further rigorous imprisonment for 6 months' each. The trial Court convicted the appellant also under section 201, P. P. C. and sentenced him to rigorous imprisonment for one year. The sentences of the appellant were directed to run concurrently. The remaining nine accused persons placed on trial along with the appellant were, however, acquitted by the trial Court. The appellant and Budha Narayan Bose filed separate appeals in the High Court. As the sentences of imprisonment for four years under section 302/120‑B were not legal sentences, the High Court issued a suo motu Rule for enhancement of their sentences. Thereafter, the two appeals and the suo motu Rule were heard together by a Division Bench of the High Court and were disposed of by a single judgment. The High Court was doubtful about the alleged conspiracy to murder and altered the conviction of the appellant and Budha Narayan Bose to one under section 302/109, P. P. C. and sentenced both of them to transportation for life. As regards the sentence of the appellant under section 201, the High Court enhanced the sentence of one year to three year's rigorous imprisonment. The prosecution case was as follows :‑ Deceased Khabiruddin Ahmad was, at the relevant time, Tehsildar at Behergati within Babuganj Police Station in the district of Bakerganj. He used to occupy the first floor of a two‑storeyed building known as `Ghose's Bari' which had vested in the Government under the provisions of the East Bengal State Acquisition Act. The Tehsil office was on the ground floor of that building. Subsequently, the Tehsil office was shifted by the deceased Tehsildar to a nearby building called 'Roy's Bari'. At that time, Ramesh Chandra Karmaker was the R. C. O. (Revenue Circle Officer) at Babuganj, and the appellant was the Sub‑Divisional Manager of the Government Acquired Estate, Sadar (north), Barisal. They were the superior officers of the deceased Tehsildar. P. W. 6 Nur Muhammad, who claimed to have auction‑purchased the Ghose's Bari occupied its ground floor. Budha Narayan Bose, who claimed to have auction‑purchased Roy's Bari, was trying to get the Tehsil office shifted back to Ghose's Bari. This move to shift back the Tehsil office to Ghose's Bari was resisted by P. W. Nur Muhammad. The appellant came to learn that the deceased Tehsildar himself auction‑purchased Ghose's Bari in the benami of P. W. Nur Muhammad and that he shifted the Tehsil office from Ghose's Bari to Roy's Bari without the knowledge of his official superiors. This caused annoyance to the appellant. He took the Tehsildar to task and reported against him. As a result of which the Additional Deputy Commissioner (Revenue) transferred the Tehsildar from Dehergati and asked him to make over charge of his office on the 20th December 1962. On the said date, at about 3‑00 p.m., the appellant, alongwith his staff, Budha Narayan Bose and some others, went to Ghose's Bari apparently with the object of ousting the Tehsildar and P. W. Nur Muhammad there from and to shift back the Tehsil office to Ghose's Bari from Roy's Bari. The appellant, who was then armed with a gun, created an atmosphere of terror at Ghose's Bari, entered into an altercation with P. W. Nur Muhammad and forced him to vacate that house in spite of his protest that he had obtained an order from the Additional Deputy Commissioner (Revenue) staying his ejectment. The appellant took possession of the gun of the Tehsil office and asked the Tehsildar to shift back the Tehsil office to Ghose's Bari. This was done by the Tehsildar, and the work of removal of the records was carried out, among others, by Budha Narayan Bose. The shifting of the Tehsil office was completed at about sun‑set the same day. The appellant then asked the tehsildar to open the middle room on the ground floor of Ghose's Bari where the iron safe of the Tehsil office was kept, but the Tehsildar having failed to do so for want of the key was severely abused by the appellant. During the entire period of his stay at ‑Ghose's Bari, the appellant abused and bullied the Tehsildar from time to time. Being asked by the appellant, the Tehsildar brought the key of the iron safe from his bedroom on the first floor and handed it over to him. The appellant then pressed the Tehsildar to quit Ghose's Bari after making over charge ‑of his office. The Tehsildar proceeded to comply with the order of banding over charge, but asked for time to vacate the ‑house till the next day as the night had set in. This request was turned down by the appellant. The Tehsildar then went upstairs and he was followed by the appellant and some others including 'Budha Narayan Bose. After they went upstairs, the appellant asked the tehsildar to send his family members downstairs. Accordingly, the tehsildar's wife Amena Begum came downstairs with her children. Thereafter the door of the staircase was closed. Soon after, Amena Begum heard the cries of her husband that he was being finished, Amena Begum attempted to go to the first floor, but could not do so as the door of the staircase was bolted from inside. Having failed to reach upstairs, she came to the cook‑shed on the ground floor and waited there. After a little while, she heard the sound of some people coming down and heard their cries that fire had set in. Having ‑now found the door of the staircase open, she went upstairs, ran into her bed‑room and saw the dead body of her husband lying there and also found fire in his wearing clothes. She was overwhelmed with grief and lost her senses. She was then taken to the nearby house of one Ali Ahmad. In the meantime, the Revenue Circle Officer, who too was in the company of the appellant at Ghose's Bari, sent a letter to the Officer‑in‑Charge, Babuganj Police Station stating that there was hue and cry from the upstairs of Ghose's Bari and that the appellant was surrounded by some persons. In that letter, police protection was sought for. The appellant, in his turn, sent a First Information Report to the Babuganj Police Station stating that the Tehsildar, Khabiruddin Ahmad had committed suicide. At the same time, he sent information in writing to the police outpost at Dehergati to the same effect. He also sent a report to the Additional Deputy Commissioner (Revenue) stating that the Tehsildar had committed suicide. The Assistant Sub‑Inspector of Police who was then in charge of Babuganj Police Station in the temporary absence of the officer‑in‑charge treated the report of the appellant as an F. I. R., started a U/D (Unnatural Death) case on its basis, came to the spot the next day (21‑12‑1962) at 10 a. m. and held an inquest on the dead body of the Tehsildar Khabiruddin Ahmad. Meanwhile, the officer‑in‑charge of Babuganj Police Station who had gone to Barisal to attend Court there arrived at the place of occurrence at 11 a. m., accompanied by the Additional Deputy Commissioner (Revenue) and took the inquest report from the A. S. I. and seized some alamats. Finding the Additional Deputy Commissioner on the spot, the appellant succeeded in getting an application made to him by the deceased's wife Amena stating that her husband had committed suicide by setting fire to his body and that the dead-body should be made over to her instead of being sent to Barisal. The Additional. Deputy Commissioner having allowed this prayer, the dead body was not sent to Barisal for post‑mortem examination. The deceased's brother Shamsuddin also came to Dehergati on the 21st December 1962, and having come to learn from the deceased's wife, Nur Muhammad and others that his brother was done to death by the appellant and his companions went to Babuganj Police Station on the 22nd December 1962 and handed over a. written first information report to that effect. On the same date, the Deputy Commissioner passed an order for post‑mortem examination of the dead body of the deceased Tehsildar. The deceased's wife who had gone to Barisal in the meantime with her husband's dead body made an application to the Officer‑in‑ Charge, Kotwali on the 22nd December 1962 for protection of the dead body till post‑mortem was held. An Unnatural Death case having been already started on the written report of the appellant about the Tehsildar's committing suicide, the Officer‑in‑ Charge did not immediately start a case on the written first information report handed over by the deceased's brother Shamasuddin and made an endorsement on that written information to the effect that a regular case would be started on receipt of the report of the post‑mortem examination. The Officer‑in‑Charge received the post‑mortem examination report on the 27th December 1962 and started a case the next day on, the written first information earlier handed over by Shamsuddin and took up investigation. He examined some witnesses, but the investigation was later taken up by the Inspector of Police under the orders of the Superintendent of Police. The Inspector of Police completed the investigation and submitted a charge‑sheet against 12 persons including Ramesh Chandra Karmakar, the then Revenue Circle Officer. All these persons were committed to the Court of Session to stand their trial under sections 302/34 and 201/34 of the Pakistan Penal Code. Ramesh Chandra, Karmakar having secured bail from the Court of Session absconded. Accordingly, the remaining 11 accused persons including appellant and Budha Narayan Bose were tried for the offences stated earlier. The appellant and his co‑accused pleaded not guilty to the charges framed against them. The appellant's defence was that on the date of occurrence he went to Ghose's Bari to investigate into the allegations against the deceased Tesildar that the Ghose's Bari which vested in the Government was fraudulently auction purchased by him in the benami of P. W. Nur Muhammad and' that the Tehsil office was unauthorisedly shifted by him from Ghose's Bari to Roy's Bari. During this investigation, the appellant directed the deceased Tehsildar to shift back the Tehsih office to Ghose's Bari and to vacate that house immediately. The Tehsildar shifted back the Tehsil office as ordered, but did not vacate Ghose's Bari. The appellant also suspected huge defalcation of Government money by the Tehsildar as he failed to produce the key of the door of the room where the iron safes was kept and charged him for all these irregularities. Realising that huge defalcation of Government money would be detected in no time, the Tehsildar went upstairs, closed the doors and windows of his bed‑room, poured kerosine oil all over his body and committed suicide by setting fire to his person. The appellant then informed the police in good faith that the Tehsildar had committed suicide. The prosecution examined 14 witnesses and exhibited a large number of documents. The defence also examined 2 witnesses and produced some documents. The first question that calls for determination is whether the deceased Tehsildar Khabiruddin was done to death or whether he committed suicide as alleged by the defence. The medical evidence in this case offers a complete answer to this question. On the 23rd December 1962, P. W. 2 Nizamuddin Ahmad Assistant Surgeon, Sadar Hospital, Barisal held post‑mortem examination on the dead body of Khabiruddin. On examination, he found the following injuries on the dead body :‑ (1) One Echymosis on the lower part of the neck just above the sternum extending both side covering the front of the neck. (2) One Echymosis on the medial end of the left clavicle and also contusion about 2 inches above and below the clavicle. (3) A similar injury on the right side. (4) One Echymosis on the right temporal region near about 2" x 2". (5) One Echymosis on the back of the right wrist 4" x 2'. The doctor found the deceased's tongue protruded and half‑bitten between the teeth. He further found that blood was coming out through both the nostrils and ears and that the superficial lair of skin of the body was burnt and pealed off at places. On dissection, the doctor found laceration of the sub cutaneous tissues and muscles under the injuries. The blood vessels were also lacerated and blood clots of ante‑mortem nature were found. The sub‑cutaneous tissues, muscles and arteries under the injuries were lacerated with exudation of blood which found its way into the chest cavity. In the opinion of the doctor, death was due to esphyxia as a result of strangulation which was ante‑mortem and homicidal in nature. The doctor was cross‑examined at length, but nothing was suggested to him for which his evidence should be discredited. The opinion of the doctor finds support from the evidence of A. S. I. of Police (P. W. 8) who held inquest at the earliest opportunity and found blood coming out of the left ear of the deceased. Thus the medical evidence leaves no room for doubt that the deceased Tehsildar was done to death by acts of violence and that he did not commit suicide. It stands firmly established that this was a clear case of culpable homicide, and the theory of suicide is ruled out altogether. There is no direct evidence as to who actually committed the acts of violence on the person of the deceased that resulted in his death. The conviction of the appellant and his co‑accused an, Budha Narayan Bose rested on circumstantial evidence. It is in evidence that Ghose's Bari at Dehergati had vested in the Government under the provisions of the East Bengal State Acquisition Act. It is also in evidence that originally the Dehergati Tehsil office was on the ground floor of Ghose's Bari and that the deceased Tehsildar used to live on the first floor of that house with his family. On the 28th August 1962, the Revenue Circle Officer paid a surprise visit to the Dehergati Tehsil office and, after inspection of that office, sent a report (Exh. 3) to the appellant stating that the deceased Tehsildar had unauthorisedly shifted the Tehsil Office from Ghose's Bari to Roy's Bari and asked for taking necessary action against him. On receipt of this report, the appellant, by his order, dated the 12th November 1962 (Exh. 3/1), called for an explanation from the Tehsildar for unauthorised shifting of the Tehsil Office. Meanwhile, he also directed the Revenue Circle Officer to arrange re‑shifting of the Tehsil office to Ghose's Bari, vide Exh. 3/2, dated the 11th December 1962. On the next day, the appellant sent a telegram (Exh. 3/3) asking the Revenue Circle Officer to effect re-shifting of the Tehsil office immediately. On the 14th December 1962, the deceased Tehsildar reported to the appellant that Nur Muhammad had auction‑purchased Ghose's Bari and was pressing him to vacate the building, vide Exh. 3/4. On the same day, the Tehsildar wrote a letter (Exh. 3/5) to the Revenue Circle Officer stating that he was not in a position to re‑shift the tehsil office as directed as he was then under orders of transfer and wanted time till he was in a position to shift his family to his new place of posting. While this tussle about re-shifting of the Tehsil office was going on, the appellant sent a report to the Additional Deputy Commissioner (Exh. 4) for taking steps for setting aside the auction‑sale of Ghose's Bari which, as stated by P. W. 6 Nur Muhammad, was auction -purchased by him on the 8th February 1962. On the 17th December 1962, the appellant sent a report to the Additional Deputy Commissioner (Exh. 3/6) stating that the deceased Tehsildar had himself auction‑purchased Ghose's Bari in the benami of Nur Muhammad and that the Tehsildar obstructed the Revenue Circle Officer from re‑shifting the Tehsil office to Ghose's Bari. In that report, the appellant made a request for taking steps to oust the Tehsildar from Ghose's Bari with the help of the police. Two days thereafter, the appellant sent a further report (Exh. 3/8) to the Additional Deputy Commissioner repeating the allegation that the deceased Tehsildar had auction purchased Ghose's Bari in the benami of Nur Muhammad and that he should be placed under suspension. On receipt of this report, the Additional Deputy Commissioner passed an order on the 19th December 1962 (Exh. 3/9) directing the deceased Tehsildar to make over charge of his office on the 20th December 1962. A copy of that order was sent to the appellant with the direction to investigate into the allegations against the Tehsildar and to submit a detailed report at once for taking further action. Immediately after the receipt of a copy of the said order, the appellant asked Sikandar Mian, the Assistant Tehsildar to retain the gun of the Tehsil office and to stay on at Ghose's Bari vide Exh. 7/1. These facts which are borne out by documentary evidence unmistakably show that the appellant was very much annoyed with the deceased Tehsildar and that this annoyance 4continued till the date of the occurrence. In pursuance of the direction of the Additional Deputy Commissioner to investigate into the allegations against the tehsildar, the appellant went to Ghose's Bari on the 20th December 1962 on which date the occurrence took place. The appellant's activities at Ghose's Bari on the said date were narrated by the deceased's wife P. W. 4 Amena and P. W. 6 Nur Muhammad. Amena's evidence is that on the date of occurrence, at about 3‑30 p.m., the appellant came to Ghose's Bari and asked the deceased to come out. Accordingly, the deceased came out, and she followed him. At that time, she saw a number of persons with the appellant including Budha Narayan Bose. The appellant then asked her husband to bring back the records of the tehsil office from Roy's Bari to Ghose's Bari which her husband did. It was at about sun‑set that the appellant asked her husband to open the middle room on the ground floor of Ghose's Bari. but he could not do so as the key of that room was with Nur Muhammad. At this, the appellant rebuked her husband, pointing the gun in his hand towards him. The appellant then asked her husband to bring the key of the iron safe. Her husband brought the key of the iron safe from his bed‑room and banded it over to the appellant. The appellant again rebuked her husband and asked him to leave Ghose's Bari with his family. Her husband wanted time till the next day as the night had already set in. Meanwhile, she went upstairs and lighted a hurricane lamp. Thereafter, her husband went upstairs, followed by the appellant and several others. The appellant then asked her husband to send down his family members. Accordingly, she came downstairs with her children. After she came down, she heard the sound of closing of the door of the staircase and the rebukes again hurled at her husband by the appellant. Soon after, she heard the cries of her husband that he was being finished. She repeatedly attempted to go upstairs, but failed to do so as the door of the staircase was bolted from inside. About 15 minutes thereafter, she beard the sound of some people coming down and their cries that fire bad set in. Finding the door of the staircase open at this time, she went upstairs, ran to her bed‑room and found that her husband was lying dead and his wearing clothes were burning. At this, she became senseless and when she regained her senses she found herself in the nearby house of one Ali Ahmad. Amena's further evidence is that her husband's brother P. W. 1 Shamsuddin came to Ghose's Bari the next day of the occurrence and that she narrated the incident to him in the night following whereupon Shamsuddin lodged an F., I. R. Amena was extensively cross‑examined, but her evidence in the main remained unshaken. P. W. 6 Nur Muhammad deposed that he auction -purchased Ghose's Bari on the 8th February 1962 and took delivery of possession thereof on the 16th June 1962. Thereafter, he used to occupy the southern room on the ground floor of that house. On the date of occurrence, at about 3‑00 p.m., he was in his room when the appellant, accompanied by Budha Naryan Gose and several others, came there. The appellant then entered his room by pushing him aside. He protested against his eviction from Ghose's Bari and showed the appellant the Additional Deputy Commissioner's order staying his ejectment. The appellant, however, did not pay any heed to it and turned him out whereupon he took his stand in the verandah of the house. The appellant then took the gun from the Assistant Tehsildar Sikandar Mian and asked the deceased Tehsildar to come down. As he came down, the appellant rebuked him for putting Ghose's Bari to sale and asked him to shift back the Tehsil office from Roy's Bari to Ghose's Bari. The deceased Tehsildar went to Roy's Bari, followed by several persons including Budha Narayan Gose and brought back the records. About 10 minutes thereafter, the appellant asked the deceased Tehsildar to open the door of the middle room on the ground floor of Ghose's Bari, but he could not do so as the key of that room was with the witness's wife Feroza. Thereafter, the appellant demanded the key of the iron safe. The deceased tehsildar brought the key and gave it to the appellant. After this, the appellant asked the tehsildar to leave the house after rendering accounts. The deceased Tehsildar asked for time till the next morning, but the appellant did not agree. At that stage, the witness left the place and waited in the nearby house of D. W. 2, the then Headmaster of the local school. After some time, the witness heard a row in Ghose's Bari and hurriedly came back to that house and saw the appellant and others standing there. He then went upstairs and found the dead body of the Tehsildar lying in the southern room. He also saw fire on the wearing clothes of the deceased. The trial Court and the High Court believed the evidence of Amena and Nur Muhammad both of whom as residents of Ghose's Bari at the material time were the most natural witnesses. In view of the naturalness inherent in the evidence of these two competent witnesses, the trial Court and the High Court were right in accepting their evidence as true. Mr. Abdus Salam Khan, learned counsel for the appellant has criticised the evidence of Amena on the ground that she did not disclose the incident to the deceased's brother P. W. 1 Shamsuddin (informant) for about two days; that the story given in the F. I. R. falls short of the evidence of Amena and that she made improvements, in her evidence after the result of the post‑mortem examination became known. There is no substance in this criticism. P. W. 1 Shamsuddin arrived at Ghose's Bari at 1‑30 p.m. of the 21st December 1962 when Amena was not free on account of the presence of the Additional Deputy Commissioner and others. Moreover, she was still then overwhelmed with grief and was in a state of helplessness. As soon as she was free and a bit composed in the night following, she narrated the incident to Shamsuddin, without giving all its details. Again, as soon as she reached Barisal on the 22nd December she made a written complaint (Exh. 11/1) to the officer‑it ‑Charge of Kotwali alleging that the appellant and others had murdered her husband after driving her out of the building and prayed for protection of her husband's dead body till post‑mortem examination was held. It is not, therefore, correct to say that Amena embellished her evidence because of the post‑mortem examination report. The evidence of the said two witnesses clearly established that the appellant, accompanied by some others, followed the deceased Tehsildar up to the first floor of Ghose's Bari at the material time. The fact that the Tehsildar was found dead within a few minutes after their entry into the first floor clearly indicates that the appellant had a hand in causing the death of the Tehsildar. The events that happened immediately after the occurrence are further indicative of the appellant's having a hand in the causing of death to the tehsildar. It has been already found that the deceased Tehsildar was done to death, but he did not commit suicide as alleged by the defence. Immediately after occurrence, the appellant sent an F. I. R. (Exh. 14) to Babuganj Police Station stating that the deceased tehsildar had committed suicide at 6‑30 p.m. This report was signed by the appellant at 7‑15 p.m. the same day. Simultaneously, the appellant sent another report (Exh. 3/10) to the Dehergati Police Outpost stating that the Tehsildar had committed `suicide by fire' and that huge defalcation of money by the Tehsildar was apprehended. At the same time, the appellant made a formal report to the Additional Deputy Commissioner (Exh. 30) informing him about the suicide alleged to have been committed by the Tehsildar and sent a copy thereof to the Superintendent of Police. Obviously, these reports were sent by the appellant in an attempt to conceal the real cause of the death of the Tehsildar and to have it believed that he had committed suicide by setting fire to his person. Not being content with these reports, the appellant it appears, tried to create further evidence to give a colouring that the Tehsildar had committed suicide. On the next day of the occurrence, Mr. Abdul Hye, Additional Deputy Commissioner came to Ghose's Bari, accompanied by the Officer‑in‑Charge of Babuganj Police Station. After their arrival, an application (Exh. 5) was said to have been made by the deceased's wife Amen to the Additional Deputy Commissioner stating that her husband' body be handed over to her instead of taking it to Barisal. In her evidence, Amena stoutly denied the genuineness of that application and stated that she signed it being pressed by the appellant who also assured her that she would be given land, money, etc. if she put her signature thereon. Thus the said application, according to the evidence of Amena, was the result of pressure and allurement given by the appellant. The very nature of the application shows that it was not a voluntarily one. The application was admittedly written by D. W.2 Abdus Sattar the Headmaster of the local school, and Amena simply put her signature thereon. On the body of the application, the Head-master made an endorsement to the effect that he had read it over to Amena and she admitted the contents thereof to be correct. Normally, such an endorsement would hardly have been necessary if the application was, in fact, voluntarily made: by Amena. Mr. Abdul Hye who was both the Additional Deputy Commissioner and Additional District Magistrate deposed in this case as witness No. 1 for the defence. He admitted that the deceased's wife Amena told him that prior to the occurrence she had been sent downstairs of Ghose's Bari on false pretext. Even after this incriminating statement of Amena, this witness, without caring to go though the inquest report already prepared, readily passed an order on Amena's application praying for handing over of dead body to her instead of sending it for post‑mortem examination. Even after the: result of the post‑mortem examination become known, Mr. Abdul Hye, in his report to the Board of Revenue, dated the 1st January 1963 (Exh. 31) maintained that this was a case of suicide by the Tehsildar. These tend to show his concern for the appellant and lack of responsibility on his part as Additional District Magistrate. However, the appellant's efforts to hide the offence did not stop there. It appears that the appellant produced a telegram, dated the 21st December 1962. (Exh. C), in his defence. This telegram was purported to have been sent by the wife of the deceased Tehsildar to the Deputy Commissioner asking for help as her husband had committed suicide. It was most unlikely on her part to send such a telegram at a time when she was overwhelmed with grief and was not in a normal state of mind. This telegram was not shown to Amena when she was examined in the trial Court, nor was she asked anything about it. Obviously, this telegram was yet another instance of an attempt on the part of the appellant to hide the real cause of the death of the Tehsildar. The A. S. I. of Babuganj (P. W. 8), who held inquest on. the dead body at 10 a.m. on the 21st December 1962, stated that he did not notice any marks of violence on the doors and windows. After the investigation was taken up by the Officer‑ in‑Charge of Babuganj Police Station on the 28th December 1962, he found that a window of the deceased's bed‑room was out When the A. S. I. did not find any marks of violence on the doors and windows on the next day of the occurrence, it may be safely inferred that a window of the deceased's bed‑room was out subsequently again with a view to creating evidence to show that the deceased had closed the doors and windows of his bed‑room and thereafter committed suicide by setting fire to his body and that the window was cut in order to get access to that room. The evidence discussed above, in my opinion, established a strong chain of incriminating circumstances pointing to the complicity of the appellant in the causing of the death of the deceased tehsildar. The incriminating circumstances established in this case are incompatible with the innocence of the appellant and incapable of explanation upon any reasonable hypothesis other than the guilt of the appellant for at least abetting the causing of the death of the deceased Tehsildar. This gives rise to a question as to what exact offence was committed by the appellant. It is the prosecution evidence that after his arrival at Ghose's Bari, the appellant effected re‑shifting of the Tehsil Office from Roy's Bari to Ghose's Bari. He first ousted P. W. Nur Muhammad from Ghose's Bari and thereafter directed the deceased Tehsildar to quit that house with his family. P. W. 6 Nur Muhammad stated that the appellant had asked the deceased Tehsildar to go out of the house after rendering accounts. This shows that the real intention of the appellant was to oust the deceased from Ghose's Bari, although he was abusing and bullying the deceased from time to time during his stay at that house. Perhaps nothing would have happened to the deceased if he had vacated that house in compliance with the direction of the appellant. When the deceased did not leave the house as directed and wanted to stay on for the night, the appellant must have thought of effecting his ouster forthwith. At that stage, he might not have had any intention to kill him or even to assault him. The deceased was with the appellant at Ghose's Bari from the time of the latter's arrival till the death of the deceased or to cause violence on him, he would not have kept the deceased busy throughout in one or other work. What, however, appears from the evidence is that the appellant was bent upon ousting the deceased from Ghose's Bari and with this object in view he and his companions pursued the deceased up to the first floor of that house as the latter declined to quit until the next day. It is pretty clear that till that time the appellant had no intention to commit violence on the deceased‑not to speak of killing him. There is no evidence to show under what circumstances violence was committed on the deceased inside his bed‑room and by whom. It might be that on the deceased's remonstration against his immediate eviction the appellant himself or one or more of his companions, at his instance, caught hold of the deceased by his neck with a strong grip in order to turn him out of the house by force and that the deceased having resisted the fatal injuries were caused to him. This was the most likely thing that could have happened inside the deceased's bed‑room. Having regard to the nature of the activities of the appellant throughout the entire period of his stay at Ghose's Bari up to the time of the occurrence and the fact that his only object was to oust the deceased from that house, it can be safely said that he or his companions bad no intention of causing the death of the deceased, or of causing such bodily injury as was likely to cause his death. At the most, the violence committed on the deceased whoever committed it, was done with knowledge that it was likely to cause his death, but without any intention either to cause death or to cause such bodily injury as was likely to cause to death. In this view of the matter, the offence committed in this case is clearly one falling under Part II of section 304 of the Pakistan Penal Code. In the absence of any evidence as to who actually caused the fatal injuries to the deceased, the appellant who shared responsibility for his death is guilty under section 304, Part II, read with section 109 of the Pakistan Penal Code, and his conviction is accordingly altered to one under the said section. As regards the charge under section 201 of the Pakistan Penal Code against the appellant, the evidence discussed hereinbefore completely established that charge. It may only be added here that this is another very strong circumstance pointing to the involvement of the appellant in the incident. If he had no connection therewith then why should he take such pains to conceal its true nature. Mr. Abdus Salam Khan has contended that the trial was vitiated by misjoinder of charges and joint trial of all the accused persons inasmuch as the charge under section 201 of the Pakistan Penal Code was framed only against the appellant with which charge the other accused persons had no concern. The learned counsel has cited the cases of State v. Abdur Rahim Sikdar (P L D 1958 Dacca 257) and Noor Din v. Crown (P L D 1952 Lah. 185), in support of his contention. This point was also canvassed before the High Court, but the learned Judges, for the reasons stated in their judgment, were of the opinion that the trial was not vitiated on the ground as alleged. As regards joinder of two or more persons and two or more' distinct offences in the same trial, the governing law is the provision of clause (d) of section 239 of the Code of Criminal Procedure according to which persons accused of different offences committed in the course of the same transaction may be charged and tried together. The expression `different offences' occurring in the said clause (d) means different offences complained of and not the offences ultimately established by evidence. Hence, the question of legality of a joint trial with respect to two or more distinct offences on the ground of their having been committed in the course of the same transaction is to be decided on the basis of the accusation made by the prosecution and not on the consideration of the evidence adduced in the case. In the instant case, the accusation in the F. I. R. was that 20 to 25 persons including the present appellant committed the murder of the deceased Tehsildar by conspiracy and spread out a false rumour that he had committed suicide by setting fire to his body. This accusation plainly attracts two distinct offences‑one culpable homicide and the other screening of the offence committed. It then remains to be seen if these distinct offences were committed in the course of the same transaction. The clear evidence in this case is that as soon as the Tehsildar was done to death, his dead body was found in flames. Again, the appellant himself reported to the police at 7‑15 p.m. on the date of occurrence, though falsely, that the Tehsildar had committed suicide at 6‑30 p.m. by setting fire to his person. These facts leave no room for doubt that the two offences complained of in this case were connected with each other as respects the point of time, the place of occurrence, the continuity of the action of the persons accused of the offences and the community of their purpose which, as has been rightly held in the case of State v. Abdur Rahim Sikdar are the usual criteria to determine as to whether two or more distinct offences do or do not arise in the course of the same transaction. The require ments of clause (d) of section 239 of the Code of Criminal Procedure thus having been satisfied in this case, there is no substance in the contention of Mr. Abdus Salam Khan that the joint trial was vitiated by misjoinder of charges. The only question that now remains to be considered is the question of sentences. The appellant was sentenced by the High Court to three years' rigorous imprisonment under section 201 of the Pakistan Penal Code. This is an adequate sentence. As regards the quantum of sentence under section 304, Part II, read with section 109 of the Code, I think that the ends of justice would be sufficiently met if the appellant is sentenced to seven years' rigorous imprisonment. I would, accordingly, sentence the appellant to seven years' rigorous imprisonment under the said section. The sentences on both the counts will run concurrently. With the above modification in the conviction and sentence, I would dismiss the appeal. Before parting with this case, I would like to observe that the main offence to this case having been found to be one falling under Part II of section 304, P. P. C., the case of Budha Narayan Bose, who has been convicted under section 302/109, P. P. C. and sentenced to transportation for life, would also be governed by the same considerations but since he has filed no appeal in this Court no relief can be granted to him. He may, if so advised, even now prefer an appeal against his conviction and sentence, with a prayer for condonation of delay. HAMOODUR RAHMAN, C. J. ‑I agree. ABDUS SATTAR, J.‑I agree. K.B.A. Appeal dismissed. Sentence reduced.