1968 P Cr (PLP)

ABDUL GHANI KHAN KHATTAK, J.‑Sajawal Zaman, son of Muhammad Sher, aged 35 years, and Fateh Muhammad, son of Dost Muhammad, aged 25 years, Awans, resident of Mial, Police Station Taman, were charged under section 302,/34, P.P.C. for the murder of Sher Muhammad, their co‑villager, aged 48/49 years. They were acquitted of the charge under section 302,/34, P. P. C. Fateh Muhammad was, however, convicted under section 201, P. P. C., and sentenced to seven years R. I. including solitary confinement for three months. He has come up in appeal (No. 119 of 1964) against his conviction and sentence. The State has filed appeal (No. 135 of 1964) against the acquittal of Fateh Muhammad and Sajawal respondents of the charge under section 302/34, P. P. C. There is a revision petition (No. 157 of 1964), filed by HidayatKhan for the enhancement of the sentence of Fateh Muhammad. This order will dispose of the appeals and the revision petition.

2. The facts, briefly stated, are that Mst. Mehrbhari P. W., daughter of the deceased, was formerly the wife of Alawal Khan, brother of Sajawal respondent. Alawal Khan died sometime before the occurrence, and after his death his widow Mst. Mehrbhari remained in her deceased husband's house for about a month. Sometimes later she came to her parent's house. An application was moved by Sajawal to the authorities with the allegation that Mst. Mehrbhari being quick with a child intended to destroy the same and that she should be stopped from doing so. The result was that on 19‑8‑63 Sajawal was bound down against Sher Muhammad under security proceedings. The grievance of Mst. Mehrbhari for leaving her husband's house was that Sajawal wanted to sell her some where in Mianwali District. About 4/5 days before the occurrence Sher Muhammad gave the hand of Mst. Mehrbhari to one Ramzan.

3. On 13‑9‑63 at Nimashanwela Hidayat P. W., Mst. Bhagbhari, daughter of the deceased, and Mst. Badshahi, wife of the deceased, were present in the house. Hidayat P. W. shared the same courtyard with the deceased, though he resided in a different kotha. Mst. Badshahi P. W. was cleaning utensils. Sher Muhammad deceased was lying on a cot because he was nod feeling well, and had taken nothing that evening except plain tea. A lantern was then burning and Mst. Badshahi was preparing for serving evening meal. In the meantime Sajawal and Fateh Muhammad accused appeared on the scene and uttered a lalkara that they were there to kill Sher Muhammad Sajawal lit a torch which he had, while Fateh Muhammad fired a shot with a shotgun at Sher Muhammad, which hit him. The culprits ran away. At about midnight Hidayat went to Altaf Hussain Lambardar and narrated the incident to him. The Lambardar sent Fazal Chaukidar ‑ with Hidayat to the Police Station Taman, at a distance of 9 miles from the spot, where the report Exh. P. A. was made by Hidayat, which was recorded by Hussain Shah, A. S. 1. (P. W. 15) at 9 a.m. on 14‑9‑1963.

4. The motive for the crime against Fateh Muhammad was that the deceased carried on an intrigue with Fateh Muhammad's sister Mst. Satbhari, about 25 years, before the occurrence.

5. Husain Shah A. S. 1. (P. W. 15) reached the spot the following morning at 2 p.m., after having covered a distance of 40 miles in a Bus. After having prepared the injury statement and inquest report of the deceased, the dead body was sent to the mortuary for post‑mortem examination. The blood‑stained pillow, Exh. P. 5, shirt Exh. P. 6, turban Exh. P. 7, tulai Exh. P. 8 and cot Exh. P. 9 of the deceased were taken into possession vide recovery memo. Exh. P. F. Two pellets Exh. P. 4/1‑2, recovered from the tulai, were taken into possession vide Memo. Exh. P. E. The empty crime shell Exh. P. 3 was taken into possession vide memo. Exh. P. D. The lantern Exh. P. 2 was taken into possession vide memo. Exh. P. C. Sajawal accused was arrested on 15‑9‑

63. Fateh Muhammad accused was not traceable, and he surrendered himself in the Court of Magistrate on 2‑10‑

63. On 9‑10‑63, as a result of interrogation he led the Police to the recovery of gun Exh. P. 1, along with two catridges Exhs. P. 16‑17 from a manger, covered by Bajra stalks inside the Kotha, which was taken into possession vide memo. Exh. P. B.

6. Dr. M. A. Hamid (P. W. 1) performed the post mortem examination on the dead body of the deceased on 15‑9‑63 at 7‑30 ‑a.m., and found the following on external examination :‑ (1) Five gunshot wounds on the right shoulder on the front and upper side and little back of right shoulder being in scattered area with one in the centre measuring 1 " x ", " x ", " x ", " x " x and x . One of these wounds was near the right side of neck in the area between the neck and shoulder blade. All these were directed inward and downward towards the chest. These were wounds of exit pellets. (2) Three gunshot wounds, x on the left side of chest in the mid-exillary line at the lower part of chest in area between the 8th to 9th rib. One of these wounds was in the posterior exillary line about 3J" below the lower angle of left shoulder blade and about 4" way from the middle line. These all were directed inward and upwards towards the inside of the chest. These were wounds of entry of pellets. (3) Gunshot wound, 1 x on the area between the inner angle of right eye and the right side of bridge of nose. A piece of cartridge cardboard was removed from this wound, which was stuck up in the wound. Internal examination :‑‑There was collection of dark: clotted blood under the skin on the right side of chest. The second and third ribs were broken, The pleural cavity contained dark fluid blood. The pleurae torn against the exit of shots. A piece of lead was removed from the left cavity. The lower lobe of right lung was punctured at five different places on both sides. The lower lobe of left lung was punctured at three different places on both sides. The pericardium (covering the heart) was bursted at the upper and outer part of the right side. There was puncture of the heart, at the apex and the heart was torn at the upper part of right auricle. There was fracture of 2nd and 3rd rib on the right bide against injury No.

2. There was also fracture and separation of the head of right upper arm against injury No.

2. Death, in the opinion of the doctor, was due to injuries to vital organs, heart and lungs, severe haemorrhage and shock.

7. The evidence of the eye‑witnesses suffers from the following lapses and infirmities : No doubt, they are natural witnesses, as they lived at the relevant time in the same house with the deceased, but if the occurrence bad taken place at the time alleged by the witnesses, the Lambardar would not have been informed as late as after midnight. Had the time of occurrence been Nimashanwela as it suggested by the P. Ws. the ringing of the shots must have attracted other residents of Dhok because at that time the residents of the near vicinity must not have been in a sound sleep, because it was not too late. The names of the assailants were not disclosed by the deponent (Hidayat) to the Lambardar, which is most unnatural. When the deponent went to the Lambardar to inform him of the occurrence, the first and foremost thing that he would have done, would be to name the assailants before the Lambardar. The deponent while proceeding to the police station all the way long did not mention the names of the assailants to his companions, which too is an extraordinary conduct. The report of the occurrence was made after an over due delay which remains unexplained. The explanation given by Hidayat that he did not go to the Lambardar at Nimashanwela is not convincing for the simple reason that it was still night when he apprised the Lambardar of the occurrence. The assailants chose the darkness of night for committing the crime, presumably with a view to remain unidentified. Therefore, the prosecution version that they made a lalkara before tiring at the victim is not in con sonance with human conduct, self‑preservation being the human nature.

8. The learned Additional Advocate‑General argued that the raising of the lalkara must have been part of the vendetta so as to let it be known to the people that the assailants avenged the insult they had suffered at the hands of the deceased. This contention requires to be scrutinised in the context of the motive against each assailant. As regards Fateh Muhammad, his sister must have been not more than 5/6 years of age, 25 years before the occur rence when the alleged illicit relations of the deceased with Mst. Satbhari are asserted by the witnesses to have impelled Fateh Muhammad to commit the crime. This apparently is not true. The prosecution has failed to connect Fateh Muhammad with his co‑accused for joining hands in the commission of the violence. The motive against Sajawal of course is not inadequate, but in view of the prosecution evidence, he cannot be held responsible for the murder, merely on the existence of motive. Motive can be used as corroborative piece of evidence, but taken by itself cannot substitute evidence which is lacking in the instant case. The evidence is that some footprints were found preserved till the arrival of the police. This clearly points to the fact that the inmates of the house were not aware as to who the culprits were and preserved the footprints with the intention that the same might be of some help in tracing out the unknown culprits.

9. As regards the recovery of the crime shell, it was sent to the Expert whereas no gun had then been recovered. It is not understandable what useful purpose could be served to the prosecution case by resorting to such novel procedure. This extraordinary procedure adopted by the investigating Agency does not inspire confidence. Fateh Muhammad was taken into custody by the police on the 2nd of October 1963, and the gun was allegedly recovered from his possession on the 9th October 1963, from a house where all the kothas were found locked by the police officer at the time of the recovery. The possibility that the gun may have been placed by anybody else rather than by the accused, in custody, cannot be kept out of consideration. The house of the accused was not searched after the occurrence and under the circumstances the recovery of the gun is not free from doubt. The witness of the recovery memo. Malik Faiz Ali is a resident of village Jhatla which is at a distance of 12 kos from Mial, the place of occurrence. May be, it was just a coincidence that the police officer could find no person of the locality to witness the recovery, but it does not mitigate the grave suspicion which naturally arises when there is a digression from the ordinary course. We do not find in the statement of this witness that the accused was accompanying the police party at the time of recovery of the gun rather Fazal Chaukidar (P. W. 13) stated that the accused was not brought to the village on or after the 2nd of October 1963.

10. In view of the above discussion and the discrepant evidence discussed at length by the learned trial Court no case for interference is made out. This is certainly not a case to necessitate resort to extraordinary jurisdiction. The appeal (No. 135/64) against the order of acquittal of the charge under section 302, P. P. C. is dismissed accordingly.

11. There now remains to be decided the appeal of Fateh Muhammad against his conviction under section 201, P. P. C. and the revision petition of Hidayat for the enhancement of sentence of Fateh Muhammad appellant. The conviction must be set aside for the . . . . . . . simple reason that as already stated the evidence of the recovery of the gun from the possession of the appellant and the evidence connecting the gun with the crime is not worthy of implicit reliance.

12. Secondly, even if the first ground is ignored, the section does not appear to be applicable to the case of a person who directly charged for murder and in the event of his acquittal on that charge, he cannot be convicted for the offence of causing disappearance of weapon of offence, or giving false Information to screen the offender. The word "offender" in the section refer to an offender other than the accused person himself. It applied to person other than the actual criminals, who by his causing evidence to disappear, assists the principal offenders in escaping the consequences of their offence.

13. The law on the point has been made sufficiently clear in the case of Begu and others v. Emperor (1925 P C 130). In that case five person: were charged for murder and two of them were convicted. The evidence established that other three had assisted in removing the dead body, knowing that a murder had been committed. As such they were convicted under section 201, P. P. C. It is in this context that the co‑accused in a crime with the principal offender is held liable for causing to disappear evidence. A person may be convicted under section 201, P. P. C. even though he has been charged only for an offence under section 302, P. P. C. and there is of course no illegality in doing so but it must not be forgotten at the same time that "Causing to disappear evidence" should be read in the same sense as it was considered in the case of Begu v. Emperor.

14. The result in that the conviction of the appellant under section 201, P. P. C. is set aside and he is acquitted. He shall be set at liberty if not required in any other case. The petition (No. 157/64) for enhancement of the sentence is accordingly dismissed. Appeal accepted.