1969 PLP 749 (SCMR)

, S. 201 read with Criminal Procedure Code (V of 1898), S. 239‑Accused found taking away skull of deceased with object of concealing it within less than 3 hours of murder and not far from place of occurrence joinder of charges and trial along with other accused not illegal. Brij Bhushan Singh v. King‑Emperor L R 73 I A 1 ref. M. Saleem, Senior Advocate Federal Court Qftikhar‑ul‑Haq, Advocate Federal Court with him) instructed by Zahir Abbas, Attorney for Appellants. A. R. Changez, Advocate‑General Punjab (S. A. Mahmud, Advocate Federal Court with him) instructed by Ijaz Ali, Attorney for the Crown. Date of hearing : 28th February 1955. MUHAMMAD MUNIR, C. J.‑These appeals are, by special leave, from capital sentences for murder. The three appellants, namely, Wali, Nazra and Qutba, and seven other persons were charged before the Sessions Judge, Montgomery with the murder of Lakha. Another man, Mokha, was also tried with them on a charge under section 201 of the Penal Code. The learned Judge acquitted all except Wali whom he convicted under section 302 of the Penal Code and sentenced to death. Against the ten men accused of murder there was a further charge of their having kidnapped Lakha with the intention to murder him. On this charge also only Wali was convicted and sentenced to seven years' rigorous imprisonment. Wali appealed to the High Court, while the Provincial Government presented an appeal against the acquittal of Qutba and Nazra. The High Court dismissed Wali's appeal and accepting the Provincial Government's appeal convicted Qutba and Nazra and sentenced them to death. Leave to the condemned men to appeal to this Court was granted with a view to considering whether in accepting the evidence which the trial Judge had rejected the High Court had contravened any principle governing the appraisement of evidence by the appellate Court in the case of a person acquitted by the trial Court. According to the prosecution case, Lakha deceased left his village Chak 70/4‑R early in the morning of 10th April 1952 by the tonga of Fazil in order to go to Montgomery. Other persons with him in the tonga were Hussain Ali, Mutalli, Sadulli and Aziz Ahmad. When the tonga reached near Mauza Ratti Tibbi, it was surrounded by several persons including the three appellants. Lakha and Mutalli were beaten and the former was taken out of the tonga and tied into a bundle. He was taken to a distance of 1J squares where two persons, Muhammad and Sher, also joined the culprits and instigated them to kill him. On this Wali appellant, who was carrying a rifle, fired and shot Lakha dead on the spot. Lakha's body was then taken to a dhari at a distance of 2J squares where an attempt was made to burn it. Thereafter the remains of the unfortunate man were taken to a place at a distance of 1 1/2 miles where further attempt to burn and destroy them was made, but by this time A. S. I. Mushtaq Hussain who had heard of the incident from some persons came to the spot and recovered some partially burnt portions of the body. On the same day at 11‑30 a.m. Mokha was seen taking a small bundle in the direction of the river. Later he took the police to the river from where human skull was recovered. It was on these facts that he was charged under section

201. Fazil, after what had happened, drove away his tonga, with Aziz Ahmad in it, but Mutalli went to Police Station Sadar, Montgomery five miles away and there at 8‑30 a.m. he lodged information in which he alleged that Lakha had been kidnapped with a murderous intent by Wali, Nazra, Qutba and four/five other persons whom he could identify. At the trial, Mutalli Sadulli, Fazil and Hasan Ali and two other persons, Chiragh Shah (P. W. 10) and Waryam (P. W. 11) gave evidence about the crime. The first four deposed to what had happened when the tonga was surrounded, while the last two stated, together with Hassan Ali, that they had seen Lakha being carried away by the culprits who also attempted to burn his body. The Sessions Judge disbelieved the evidence regarding the pursuit of the culprits, and therefore acquitted all those accused who had not been mentioned in the First Information Report. He also .acquitted Nazara and Qutba on the ground that Mutalli and Fazil's evidence was not sufficient to find them guilty. Against Wali, however, he accepted the evidence of these two witnesses as well as the evidence of the recovery of a rifle from him which, according to expert evidence, some shells which were recovered from the spot had been fired. The first point taken by Mr. Saleem before us is that the joint trial of Mokha and the other accused persons was illegal because the offence under section 201 alleged to have been committed by Mokha was not a part of the same transaction. But, as already stated, the prosecution case was that Mokha was found taking away the skull of the deceased with the object of concealing it, within less than 3 hours of the murder and not far from the place of murder. The joint triad would therefore appear to be legal by reason of section 239 of the Code of Criminal Procedure which provides that persons accused of different offences committed in the course of the same transaction may be charged and tried together. Mr. Saleeml had cited some authorities in support of his contention, but We prefer to follow the course adopted by Sir John Beaumont in Brin Bhushan Singh v. King‑Emperor (LR73IA1) namely, that since Mokha was acquitted it is not necessary to discuss this point. The second point most emphasized by Mr. Saleem is that because Lakha was murdered when unexpectedly Muhammad and Sher suggested to the kidnappers that they should kill him, none but Wali can be attributed the intention to murder. In the circumstances of this case, however, no reasonable hypothesis other than that Lakha was kidnapped so that he may be murdered is possible, and therefore it is wholly immaterial that the murder was accelerated by a suggestion from the two above‑named persons. Even if no such suggestion had been made, it is clear that the kidnapping was with the intention to murder and that the murder must have been committed. We have compared the reasons given by the Sessions Judge for the acquittal of Nazra and Qutba with those given by the High Court for accepting the evidence against them, but do not think that the manner in which the High Court approached the case involves any breach of the principle by which evidence in appeals against acquittals has to be judged. According to the findings of the Sessions Judge, Mutalli and Fazil undoubtedly did see Lakha being attacked and taken away. Sadulli and Hassan Ali were on their way to Montgomery with Mutalli in order to attend certain proceedings which were to be held on that day against them under the Goonda. Act. They also, therefore, must have seen the first part of the transaction. Chiragh Shah was a completely disinterested witness and the learned Judges of the High Court were entitled to hold that his evidence and that of Hassan Ali and Waryam was, entitled to credence and that it had been erroneously reiected by the Sessions Judge. They were equally entitled to disbelieve the defence evidence relating to the alleged alibi of Nazra which had not been accepted by the Sessions Judge. We are, therefore, unable to discover any special reason for our interference and. dismiss the appeals. Appeals dismissed.