P L D 1960 (W (PLP)

H. C. No. 2886, Duty Officer." Mr. Naqvi, the S. H. O. of the Harbour Police Station, soon reached the spot, where he found the dead body in the bag and the accused Khurshid Ali who had been secured. The dead body was found to have marks of violence and strangulation which were mentioned in the mashirnama prepared on the scene. He recorded the statements of the witnesses who were present on the scene and took the accused in custody. Having interrogated him, he took, him to the Central School situated at Burns Road, Karachi, of which the accused‑appellant was the Head Master. This school appeared to be the scene of offence, where the deceased boy was suspected to have been murdered, and this being within the jurisdiction of the Arambagh Police Station, the matter was entrusted to them by the Harbour Police. Thereupon, Mr. Noor Khan, the S. H. O. Arambagh Police Station, arrived with the appellant at the school, which was locked and the keys of which were produced by the appellant's father. The appellant then took the police inside the school and into a small room on the floor of which were found the stains of blood. There was also a blood‑stained' lungi.' on the floor and a big bundle with some rope thread attached to it such as is used for sewing gunny bags. There was also some spare thread with a pair of scissors lying on a table in the said room. The police, seized all these articles including the blood‑stains on the floor which was scraped for that purpose. The ` lungi ' and the pieces of the flooring con taining blood‑stains were sent to the chemical analyser and his report showed that the stains were of human blood. The dead body of the boy was identified as being that of Muhammad Sharif aged about 15‑16 years by his uncle, who deposed to the fact of the boy having once studied in the Central School, of which the appellant was the Head Master. This fact was also corroborated by the school register. The appellant was charged for having committed offences under sections 302 and 201, Y. P. C. and having been committed to the Court of Session, was tried by Mr. A. H. Kureishy, Additional Sessions Judge, Karachi, who only found him guilty of an offence under section 201, P. P. C. under which he convicted and sentenced him to 7 years' rigorous imprisonment. The appellant Khurshid Ali has come up in appeal. I have heard Mr. Mazhar Hussain, the learned Advocate for the appellant and Mr. Ghulam Hussain Shah, the learned counsel appearing for the State. Mr. Mazhar Hussain, in the first instance, made a half‑hearted attempt to question the finding of the learned Additional Sessions Judge with regard to the appellant's complicity in the act of disposing of the dead body of the deceased Muhammad Sharif. This attempt was, however, given up by him in view of the overwhelming evidence on record with regard to the incident on the night in question when the appellant was apprehended red‑handed as stated in the opening part of this judgment. There was the evidence of the Jamedar Ali Gohar of the Anti‑Smuggling Staff of the Customs fully corroborated by the Hav. Noor Dad Shah and the Constable Misri Khan. The Native Jetty Bridge in question is situated not far from the Customs House and the presence of these witnesses near the bridge was perfectly natural. They are completely disinterested witnesses and there is not the slightest reason why they should have falsely deposed against the appellant. Their evidence is rendered unassailable by the fact of the appellant having been apprehended on the spot with the dead body properly stuffed in the gunny bag and the place where it was found making it abundantly clear that the appellant and his companion were about to push the dead body from the edge of the bridge into the sea. There was also the telephonic report made within a few minutes of the incident and recorded at the Harbour Police Station which has been reproduced earlier. The faint attempt by the appellant before the Sessions Judge to suggest that the Anti‑Smuggling Staff of the Customs House bore him an animus, because on the previous day, he had refused the admission to a boy into his school was false on the face of it and was supported by no evidence. This statement was made by the appellant for the first time in the Sessions Court and there was no suggestion of it by him when he was examined by the committing Magistrate nor there was any indication of this suggestion in the cross‑examinatton of anyone of the prosecution witnesses. It was thus established beyond a semblance of doubt that the appellant was found with the dead body of the deceased Muhammad Sharif in the circumstances stated above. The evidence of Dr. Hassan, who performed the post‑mortem examination of the dead body of Muhammad Sharif, was to the effect that he had found the boy to have been aged about 17 years, that the shirt upon his person was torn, and the white pant which he was wearing had blood‑stains on it. The post mortem was held on 18‑9‑57 at about 12‑30 p.m. and in the opinion of the doctor death had been caused about 20 hours before the post‑mortem. The doctor had found a rag of dirty linen into the mouth of the boy and as many as 9 injuries upon his person. These were as follows :‑ " (1) Abraded lacerated wound tissue deep in an area of 4 " x 2" on outer side right elbow joint. (2) Multiple small lacerated wound tissue deep in an area of 3" x 21" on the back of right palm. Some of the wounds looked like punctured wounds. (3) Abrasion l " x 1" outer side left elbow joint. (4) Abrasion 3/4" x " inner and lower part of left fore‑arm. (5) Multiple round abrasion in an area of 3" x 3" outer and middle of right leg. (6) Multiple round abrasion in an area of 1" x 1" outside right ankle. (7) Abrasion 1/8" (illegible) left side lower lip. (8) The oblique and parallel 1" x 1/10" each on left side of neck. (9) Contusion mark 3" x 2" front of neck above the level of thyroid cartilage." According to the doctor, injuries No. 7, 8 and 9 appeared to be due to the act of throttling and the rest of the injuries, except injuries 5 and 6, due to forceful contact with hard and rough object during the process of throttling. There is thus no doubt that the unfortunate boy was throttled to death. On the charge of murder the learned Additional Sessions Judge gave the appellant the benefit of doubt, though I must say that the appellant had come very close to be convicted of that offence. Apart from the circumstances narrated above, there was the fact that in the small room of the school where the floor was found to be stained with human blood was also found a ` lungi ' which was similarly stained. The appellant's explanation was that in that room the police had caught hold of his head by his hair and pushed it against the wall with the result that his nose had received an injury and had started bleeding, and that he had then sat on the floor and had wiped the blood with the lungi lying there. This‑ statement was made for the first time in the Sessions Court and there were no questions suggesting this explanation put to any of the prosecution witnesses in cross examination. The various articles seized in the small room including the bundle of thread and the presence of the blood stains would lead to a reasonable inference that Muhammad Sharif was probably done to death in that room. The appellant gave no explanation of the presence of the other boy with him, who had alighted from the motorcycle‑rickshaw on the bridge at the time when the latter was apprehended. Evidently, he also refused to disclose his identity. Be that as it may, the fact remains that the learned Additional Sessions Judge gave the appellant benefit of doubt and the Government evidently felt satisfied by that decision and preferred no appeal. The next point which was strenuously argued by the learned counsel for the appellant was that upon the facts found by the learned Additional Sessions Judge the offences proved was not under section 201, but merely of an attempt to commit that offence. The argument is that inasmuch as the appellant was not able to throw away the body of the murdered boy in the sea, it cannot be held that he had caused any evidence of the commission of the offence to disappear. I asked the learned counsel for the appellant that if in this case the appellant had been able to throw the body in the sea and if the same had been immediately recovered the offence on the basis of his reasoning would still be merely an attempt to cause the evidence of the offence to disappear, because in that event as well the body which was the evidence of the commission of the offence would not have disappeared. The learned counsel replied that in that case the appellant would have done all that lay in his power to dispose of the evidence of crime and the fact of the recovery of the dead body would not therefore make any difference with regard to the completion of the offence. He relied upon two cases in support of his contention. The first case is one reported in In re Parasa Mangadu and others (50 Cr. L J Mad. 324). This was a judgment of a single Judge of the Madras High Court, wherein upon the fact of that case the learned Judge found that the offence committed was only an attempt to cause the disappearance of the evidence of the offence. In that case five persons had been convicted of an offence under section 201, Penal Code. They had been carrying the body of the deceased man and when questioned by the witnesses each of them gave various versions which were found by the Sessions Judge to be untrue. Having been confronted and questioned by those persons who appeared as witnesses, the appellant left the body on the foot‑path and went away from that place. The learned Judge upon these facts found that the offence under section 201, Penal Code had not been completed. He observed that if the body had been taken away and secreted, or burnt, or buried, that might be something, but since the body was left in or near about the footpath in public view, one could not say that any evidence of murder had been caused to disappear. In the first instance, it must be .noted that the facts of that case were clearly distinguishable from the facts of the case in hand. There the appellants had been openly carry ing the dead body in broad day light and when questioned they gave certain versions and left the body at the footpath in full public view. Their defence which was not accepted was that they were carrying the body to the place of the village Munsif, whose house admittedly was only at a distance of 50 paces from the place where the appellant had been questioned. It may therefore be that in the circumstances of that case the offence committed might be held to be an attempt to commit an offence under section 201, but if that case is taken to mean that in order that the offence under section 201, Penal Code, be committed there has to be the disappearance of the evidence of the commission of the offence, I would with great respect dis agree. Such an interpretation would in its logical conclusion lead to the effect that unless the disappearance of the evidence has been completed the offence would not be one under section 201, but merely an attempt to commit that offence. This clearly is not what is contemplated by section 201 which merely requires the causing of any evidence of the commission of the offence to disappear. This requirement will be fulfilled as soon as they accused is proved to have hidden or concealed the evidence; of the crime. The other case relied upon is that of Upendra Chandral Poddar v. Emperor (42 Cr. L J 1941 Cal. 796). This was a judgment of 4 Division Bench of the Calcutta High Court in which the learned Judges were considering the correctness of the conviction of 10 persons under section 201, I. P. C. The facts of that case were that as the result of a quarrel between 2 factions one person had been speared and the members of the party who had caused the injuries were alleged to have said that if the man was dead he should be dragged away. Thereafter only two of the appellants were said to have begun dragging the body of the deceased by his legs. Some of the other appellants went with them and some had remained behind. Those who remained behind had interfered with the attempt of the prosecution witnesses to follow the people who were dragging the body. The learned Judges therefore found that the specific case made out against the ten appellants was that two of them dragged the body away by the legs, and about the rest of the story they found that it was extremely vague. It is not clear from the judgment as to under what circumstances and in what place the body was ultimately found. The learned Judges therefore found that the direction of the Sessions Judge to the jury to the effect that if they believed that the deceased Barek was killed by one Jogendra, then the offence under section 201

1. P. C. would be completed as soon as the accused dragged away the body at all, quite apart from the final disposal of the body, was not proper. They went on to observe as follows :‑ The essence of an offence under that section is the causing of evidence of the commission of an offence to disappear and it cannot be considered correct to say that the mere moving of a body amounts to causing the disappearance of evidence of an offence. The learned Judge confined his analysis of this particular charge to the case of the two appellants who were actually said to have moved the dead body from the place where the deceased originally fell and has not directed the attention of the jury to the specific cases against any of the other appel lants. It would appear, as a matter of fact, that no specific allegations were made against any of these appellants in con nection with the disappearance of the body. All that was said on that point was that they were members of the crowd of Namasudras and that after the occurrence they either accom panied the men who took the body or stayed behind to see that the other party did not interfere with them. On evidence of this character it seems to us to be reasonably clear that there could be no conviction of the individual accused upon a charge under section 201,

1. P. C." It would appear from the passage quoted above that the learned Judges in that case were influenced by the fact that the Sessions Judge had confined his analysis to the case of only those appel lants who had actually moved the dead body and had not directed the attention of the jury to the specific cases against any of the other appellants. The learned Judges, however, themselves did not deal with the case of the two appellants separately who were found to have dragged the body. Their general observa tion to the effect that the mere moving of a body does not amount to causing the disappearance of evidence of an offence however is such with which no exception need be taken. These observations would have no relevance to the facts of this case. In an Allahabad case reported in Emperor v. Autar (47 11 L R 304), which was a judgment of a bench consisting of Mr. Justice Walsh and Mr. Justice Sulaiman the learned Judges; who were considering the correctness of an observation of a previous decision of that Court reported in I L R 2 All. 713, observed as follows :‑ "The Judge was right in following the case of Empress of India v. Kishna I L R 2 All. 713 and also in saying that it had not been dissented from, at any rate, in Allahabad. On this point that case, it is true, consists really of mere dicta, but if these are to be taken as having decided that removal of the corpse from the place where it is originally found to another place is not within the section, we definitely hold that that is not the law." It was further observed that :‑ " Removal of the body from the house to a distant place does, in my opinion, amount to causing an evidence of the commission of that offence to disappear. I agree that that section cannot be confined to the destruction of the evidence of the murder itself." With these observations I am in respectful agreement. The essence of the offence under section 201 consists in the doing of an act which has the effect of concealing the evidence of crime. The, concealment need not have succeeded nor is it necessary that they evidence should have been destroyed. Applying this test to the facts of the present case, it is abundantly clear that the offence committed is one under section 201 and not merely the attempt of it. The dead body was secretly put into a bag which had been properly fastened by employing a needle and string. Upon the evidence there can be a little doubt that the appellant either himself or with the aid of the other boy, who ran away, had pat the body of the deceased in the gunny bag and fastened it so as to conceal the body. In my opinion, the offence of section 201 was completed at that point: But the matter did not rest there. The appellant took this gunny bag in the darkness of night on a motorcycle‑rickshaw to the Jetty Bridge. The body was sufficiently concealed in the gunny bag as not to arouse the suspicion of the rickshaw driver or someone else who might have seen it. Indeed when the appellant was questioned by the Jamedar Ali Gohar about the contents of the gunny bag, he was able to tell him that it merely contained his household effects and books. It was only after Ali Gohar felt the bag that he realised that the‑con tents of it was an object which was made of flesh. That the appellant did not succeed in throwing over this gunny bag into the sea does not, in my opinion, make any difference to the com pletion of the offence under section 201, P. P. C. It has not been contended before me that the other require ments of section 201 had not been proved in this case, for the obvious reason that in view of the proved circumstances of this case such a contention would have been meaningless. For the reasons stated above, I uphold the conviction of the appellant under section 201, P. P. C. The maximum sentence of 7 years awarded to the appellant by the Additional Sessions Judge was eminently suited in the circumstances of the case, and I do not see the slightest, reason for reducing it. The appeal is therefore dismissed. A. H. Appeal dismissed.