P L D 1954 Azad J & K 6 (PLP)

ABDUL MAJID, C. J.‑This is an appeal by the Government under section 417 Criminal Procedure Code from the order of Sardar Muhammad Ayub Khan, Sessions Judge, Poonch and Muzaffarabad, acquitting the five accused namely Alam Din, Muhammad Hussain, Mst. Zulekha, Mst. Makhni and Mst. Munawara of the murder of Yasin. Mst. Zulekha is the wife and Alam Din a private servant of the deceased. Mst. Munawara is the niece and Mst. Makhni mother‑in‑law of the deceased. Muhammad Hussain is the husband of Mst. Munawara. All the accused and the deceased lived in one and the same house. The deceased was murdered in his own house in village Beheri on the night between 5th and 6th September, 1952. A report of the murder was made at the Police Station Kahori on 20th September, 1952 by Muhammad Hussain accused. In this report, it was stated that Mst. Zulekha bad illicit connection with a fellow villager named Noor Muhammad and this fact was known to the deceased because a few days before the occurrence, a dog belonging to the deceased had been killed by poisoning at the instance of Noor Muhammad in consultation with two other persons namely Darya Muhammad and Miskeen for the reason that the dog stood in the way of Noor Muhammad carrying on with Mst. Zulekha and when this matter was brought to the notice of the deceased, the latter beat Mst. Zulekha and declared that be would lodge a report with the police against the persons who had killed his dog. This was stated to be the motive for the crime. It was further mentioned in the report that on the fateful night, Muhammad Hussain and his wife, Mst. Munawara were sleeping in a 'pasar' of the house when Muhammad Hussain heard the agony cry of the deceased. On hearing it, he got up and observed Noor Muhammad, Darya Muhammad, and Miskeen attacking the deceased, in the light of the moonlit night. Darya Muhammad and Miskeen had caught the deceased while Noor Muhammad who was armed with a hatchet was striking him with it. Mst. Zulekha was then standing near the assailants of the deceased. Muhammad Hussain and his wife tried to raise hue and cry but the assailants threatened to kill them if they did so and the result was that they remained silent. After murdering the deceased, the assailants carried the corpse in gunny bags. After the corpse had been carried Mst. Zulekha washed the blood spread on the bedding of the deceased and plaster ed the ground underneath the cot of the deceased removing the blood stained earth which was thrown into the field near‑by where `makki' crop was growing. The report was delayed because the culprits threatened to deal with Muhammad Hussain if the latter told the police about the affair. The story brought out at the trial was that Mst. Zulekba had illicit intimacy with Abdur Rehman approver and the deceased beat her on that account. Mst. Zulekha was 'anxious to kill the deceased so that she might indulge freely in her immoral ways. She, therefore, conspired with the approver and the five accused to murder the deceased. Alam. Din accused was given Rs. 80 by Mst. Zulekha for helping her in the murder of the deceased. While Muhammad Hussain accused was promised that he would be free to take his wife with him to any place he desired. The deceased who was employed in the Forest Department return ed to his house on 5th September, 1952 and beat Mst. Zulekha on account of her not giving up her evil ways and abused other inmates of the house. On the night of occurrence, after the deceased had gone to sleep, Abdur Rehman approver was called from his house through Muhammad Hussain. The deceased was put to death by Alam Din and Abdur Rehman approver with hatchet blows. The corpse and clothes of the deceased were concealed after the murder in the field and bushes in the vicinity of the scene of offence which were subsequently recovered at the instance of the accused. In support of the prosecution story reliance was placed on the evidence given by Abdur Rehman approver, the retracted confessions of the accused, the discovery of the incriminating articles at the instance of the accused and the evidence of two boys Muhammad Ayub P. W. 3 and Ghulam Sarwar P. W. 4 who stated that they had witnessed the removal of the corpse by the culprits and the part played by Mst. Zulekha in causing the disappearance of the evidence about the murder. The learned Sessions judge ruled out the evidence given by the approver on the ground that is differed in material particulars from the judicial confessions of the accused and the evidence given by the two boys and also that all the formalities necessary for recording the statement of the approver under Law were not observed, The judicial confessions of the accused 'were not considered by the learned Sessions Judge of any value because it did not appear that they were made voluntarily and the Magistrate who recorded them had power to do so and took all precaution necessary according to law for showing that they were not the result of any inducement extended to the accused by the police. The discovery evidence was brushed aside by the learned Session Judge because Dost Muhammad P. W. who was examined only out of the three witnesses cited in the challan as regards the discovery of the incriminating articles at the instance of the accused was a relation of Noor Muhammad who had been mentioned in the report given by Muhammad Hussain accused as murderer of the deceased. The learned Sessions judge felt some doubt about the complicity of lost. Zulekha accused in the crime because of her admission in the committing Court and before him that she had plastered the ground to cause disappearance of the stains of blood which she stated she bad done at the instant of the assailants of the deceased and because of her silent of the affair. The learned Sessions judge was of opinion that some more evidence was required to connect Mst. Zulekha with the crime and as it was wanting she could not be convicted of the murder of deceased. The result was that all the accused were acquitted of the charge of murder. After hearing the Government Advocate and the accused's Counsel at length, we are of opinion that there are good reasons for rejecting the evidence given by the approver which looks like a cock and bull story. We are also not convinced that the confes sions of the accused were properly recorded. We, however, do not find any sufficient reason for totally rejecting the evidence given by the two boys and the documentary evidence. The presence of the boys in the house on the fateful night and the morning following it cannot be denied. It is, therefore, established that they did see the aftermath of the incident of murder which consisted of the causing of the disappearance of the evidence relating to murder or in other words the removal of the blot stains from the bedding of the deceased and the plastering the ground underneath the cot for the same purpose. The evidence given by these two boys coupled with the admission of Mst. Zuleha make her guilty at least of an offence under section 201 A. P. The documentary evidence though somewhat defective does out that Mst. Zulekha did produce the bedding of the deceased from which she had removed the blood stains by washing before the Police. The plea of Mst. Zulekha that she removed the blood stains from the bedding of the deceased and the ground underneath the cot on which the deceased was sleeping because of the threats of the assailants does not appeal to us. If her defence were then she would not have remained silent till the investigation was taken up by the Police. On, the other hand, she would have repaired to the Police Station as soon as the assailants had left the scene of offence or some time thereafter. The fact that the did not report to the Police or to the neighbours about the death of her husband clearly points out that she was concerned in the crime to some extent and the question arises whether she should not have been convicted by the Sessions Judge of an offence under Section 201 A P. C. It is an established principle of law that under section 237 Criminal Procedure Code, the accused can be convicted of causing disappearance of evidence under section 201, A. P. C. although he has not been charged with that offence but only with murder under section 302 A. P. C. This principle was laid down by the Privy Council in Begu v. Emperor a case reported as A I R 1925 P. C.

130. The first question is whether we have power to convict Mst. Zulekha of an offence under Section 201 A. P. C. although she was not charged with that offence in the trial in the Sessions Court. The first issue under this head is: "Whether Clause (a), subsection (1) of Section 423 Criminal Procedure Code merely authorizes an appellate Court to find the accused guilty of the offence, with which he was charged and for which he was tried, but of which he was acquitted, or whether it empowers an appellate Court to convict an accused of some other offence." No doubt, the words "find him guilty" may be said to most naturally mean "find him guilty of the offence, the acquittal in regard to which is being reversed but there seems no reason why the same principle should not be applied to an acquittal appeal as applied to appeals by a convict. Under clause (b) subsection (1), the appellate Court can alter the finding" that is alter the conviction under a certain section to one under another and of course for that purpose it may avail itself of the provisions of section 237 Criminal Procedure Code. If we adopt the first of these two alternative constructions the strict result will be that an appellate Court, on an appeal from an acquittal by the Government, cannot even convict an accused of a minor offence covered by the offence with which the accused was charged. We refer of course to a case falling under sub section (a) section 238 Criminal Procedure Code. It would mean that a person who had been charged with but acquitted of, murder could not, on appeal by the Government, be convicted of the offence of voluntarily causing grevious hurt by a cutting instrument, or culpable homicide not amounting to murder. If it be held that, the appellate Court in an appeal under section 417 is barred from convicting an accused of such a minor offence, it would be obviously embarrassing to the administration of justice, if the Court was forced to a conclusion of that kind. If, then, an appellate Court can convict an accused of an offence other than that in regard to which he has been acquitted in a case falling under section 238, there seems no logical reason why he cannot also be convicted of another offence, in a case falling under the provisions of section

237. Both sections are on the same footing and we do not think that the first construction we have mentioned is a correct one to apply to this clause (a). The appellate Court under section 423 have at least the power of the original Court which tried the case under section 237 provided no prejudice was given to the defence. In the case of an appeal at the instance of the Government under section 417, as a matter of jurisdiction, the whole case is at large before the High Court both as to the facts and as to the Law. But the appellate Court will be slow to disturb a finding of fact arrived at by a judge who has had opportunities for assessing the value of evidence which the Appellate Court has not had. But where the judge has erred to cause grave miscarriage of justice the appellate Court can certainly interfere in an acquittal appeal. The next point is whether this Court can convict the accused of an offence under section 201 A. P. C. in view of the fact the opinion of the assessors has not been taken as to it. In the case reported as A I R 1924 Bom. 246, it was held that Sessions judge could not convict an accused, who was charged with abetment of murder, of an offence under section 201 A. P. C. viz., causing the disappearance of evidence of the murder; and this ruling was mainly based upon the provisions of section 309 Criminal procedure Code which require the Sessions Court to take the opinion of the assessors and record such opinion. This ruling was practically ruled out by the principle laid down by the Privy; Council in Begu v. Emperor where their Lordships upheld the; action of a Sessions judge in convicting the accused of an offence under section 201 A. P. C although the only charge against them it was one of murder under section 302 A. P. C. We, therefore, hold that the decision reported as A I R 1924 Bombay 246 caw no longer be taken as good law. Another point to which our attention has been drawn by the learned Counsel for the accused is that the High Court exercising its jurisdiction in the matter of appeals against acquittals, should confine its exercise to the particular acquittal complained of by the Government. In the present case, there had been acquittal on a charge of an offence of murder and in the arguments in appeal it was sought to question the propriety of that acquittal. It is urged that this Court should hesitate before raising a point that has not actually been taken in the appeal by the Government. Reliance is placed in that respect on A I R 1938 Sind 108 and A I R 1934 Lah.

843. In both these cases, it was laid down that it was not proper in an appeal against the acquittal for Government to attempt to snatch a conviction by making out another case against the accused. It was thought that an appeal against an acquittal was a serious matter and as the liberty of person once acquitted is again to be put in jeopardy the High Court was justified in insisting that cases in which an appeal against the acquittal is to be made should be carefully considered in all their aspects before the appeal is filed and that the Government should be bound in arguments and should consider themselves bound in arguments to the grounds raised in the memorandum of appeal. The principle no doubt enunciated in these two cases was sound but this is purely a point of practice and cannot prevent us from considering whether in the interest of justice we should exercise our powers of convicting the accused of another offence if we have that power. Section 419 Criminal Procedure Code simply mentions that every criminal appeal shall be made in the form of a petition in writing presented by the appellant or his pleader and nothing further. It does not lay down that the contents of petition should be in a particular form. It will be, therefore, not legal if conviction under section 201 A. P. C. of Mst. Zulekha though warranted by the facts on the record is refused simply that it was particularly stated in the memorandum of appeal that she was guilty of an offence under section 201 A. P. C. if not of murder on the facts as they stand on the record though this matter was raised in arguments and the counsel for the accused had full opportunity to meet it. We, think therefore, that there is no impediment in our following what has been held to be a proper procedure in the Privy Council case of Begu v. Emperor. The only difference is that in Begu's case there was a conviction by the Sessions judge, which was upheld by the High Court on appeal. But in the present case, the Sessions judge did, in fact, expressly hold that the prosecution evidence showed that Mst. Zulekba was concerned in the crime to some extent but it was not definitely proved that she took part in the murder of the deceased. If we think for one moment that Mst. Zulekba will be prejudiced, we certainly will not exercise the powers of ourselves convicting her under section 201 A. P. C., but direct a retrial in regard to this offence. But, in our opinion, there can be no possible question of prejudice. Mst. Zulekha admitted in her confession that she removed the blood stains from the bedding of the deceased and plastered the ground underneath the cot of the deceased so that the blood stains thereon may not be detected. It would, in our opinion, be an unwarrantable waste of time if a fresh trial was ordered, in view of the fact that the accused at the trial knew of this accusation against her and had full opportunity of meeting it, and in view of her confession before the Sessions judge and the Committing Court that she did cause disappearance of the evidence of murder. Coming to the merits in our opinion, it is clearly proved from the evidence on the record that Mst. Zulekha did cause disappearance of the evident, of murder and for this reason remained silent though the offence concerned her husband. We, therefore, convict Mst. Zulekha of an offence under section 201 A. P. C. and sentence her to one year's rigorous imprisonment. The acquittal appeal against her is accepted to that extent. The acquittal appeal against the other accused is dismissed and they are discharged from their bail bonds. Alam Din who had not furnished bail bond and is in jail is ordered to be set free. NIAZ AHMAD, J.‑I agree. Announced. A. H. Conviction altered.