P L D 1961 (W (PLP)

M. B. AHMED, J.‑This is an appeal by Budho and Gulsher who have been convicted by the IIIrd Additional Sessions Judge of Sukkur for offences under sections 361 and 302, P. P. C., for having given fatal blow to Kabil deceased and sentenced to seven years' R. 1. and to transportation for life each respectively.

2. The prosecution story as related in the F.1. R. lodged of January 30, 1959 at 2‑30 a.m. was that on the previous night after Isha prayers Dodai and Kabil deceased were going together to take care of their gram cultivation, when on. the way they were attacked by six persons. Budho, Nural, Malook, Faizu, Jumo and Gulsher (four others have been acquitted by the Additional Sessions Judge). The six appellants told Kabil deceased that lie had illicit connections with Mst. Rahiman and he had been given a chance. He was accordingly attacked and Dadoi raised cries of murder. Nobody came up as their houses were far away. Dadoi then ran to the village and Aidan, Jumo, Menho and others came with him to the spot. Kabil had been taken away already before Dadoi left the place. These persons tacked the foot‑prints for about 100 paces when they saw blood on the ground. They searched for the dead body, but could not find it. The complaint, therefore, was the accused persons had forcibly taken away Kabil deceased with the intention of murdering him on the ground that he had been accused of having illicit connection with Mst. Rahiman. It was said in the F.

1. R. that the houses of the accused were near the scene of offence. A case under section 364, P. P. C. was registered by S. I. P. Qamaruddin. He then went to the place of occurrence and prepared a mashirnama. He found blood at a distance of three paces from the place where Kabil was alleged to have been taken away. The S. I. P. then looked for the accused but could not get them. On 31‑1‑1959 at about 4‑30 a.m. in the morning Qaim and Kehar produced accused Gulsher before him. Nooral was also produced. Accused Gulsher then took the police party and mashirs to Budho's house. From there indistinct wheel marks starred. Gulsher accused then took the party three‑ miles away to a place (where) there were 3 houses. Gulsher removed the thorny branches from one house and took them inside. There were logs lying there and also a spade. Accused Gulsher dug out from the pit a corpse with shirt and loin‑cloth in the presence of Dadoi who identified the corpse as of Kabil. The party also found the cart which had been washed to remove blood‑stains.

3. Accussed Gulsher then took the party to his house and produced from inside a. basket one chadar and one hatchet. The S. I. P. arrested Budho on 2‑1‑1959 (sic) and Malook, Faizu and Jumo on 3‑1‑1959 (sic). He challaned the accused on 15‑2‑1959. Dadoi was the only eye‑witness of the 'forcible taking awaN of Kabil. The other evidence consisted of the recoveries at the instance of Gulsher accused and the presence of blood trail right up to the house of Budho accused. It was said that accused Budho was arrested from his place. Accused Malook, Faizu and Jumo were arrested on the 3rd January (sic) following the arrest of Nooral. The injury report of the doctor showed that death was due to detachment of his spinal cord. The deceased had one cut caused by hatchet blow under the knee of the right leg.

4. The accused denied the charge. Budho denied that Kabil was made Karo with his mother Mst. Rahiman. He said that his mother had died two years before and there was no such question between her and Kabil. He said that the witnesses were men of Sahib Muhammad Khan who had enmity with him over landed property. He and his brother were prosecuted also for theft but they were acquitted. Nooral accused denied the charge and said that he was implicated on account of dispute with the witnesses on land. Malook accused said that Kabil had no connection with Mst. Rahiman mother of Budho. He said that one gun and two, cartridges and licence were produced by him befor.‑ the police and they belonged to him. He also said that the prosecution witnesses were giving evidence on account of enmity over landed property. Faizu denied the charge and said that he was implicated on account of enmity. To the same effect was the statement of Jumo. Gulsher said that he did not produced any blood‑stained chadar or hatchet and stated that the witnesses were giving evidence against him on account of landed property.

5. The assessors thought that only Gulsher was guilty and the other persons were not guilty.

6. The learned Additional Sessions Judge who tried this case came to the conclusion that the formation of an unlawful assembly of six persons was a doubtful affair and that only accused Budho and Gulsher were proved to have abducted Kabil for murdering him and that they actually murdered him. The learned trial Judge found that there was only one incised wound 4" x 3" cutting through the soft tissue and the lower end of the femur completely. He was convinced that accused Gulsher and Budho had bodily lifted the deceased and taken hi n away for murdering him. There were blood marks from the place where Kabil was lifted. A trail of blood was found from the scene of offence up to the house of accused Budho, (vide statements of mashir Abdul Latif, Dadoi, Minho and the A. S. I. P. Qamaruddin and the mashirnama Exh. 13). Accused Gulsher, according to the learned Additional Sessions Judge, was the person whose statements led to the recoveries of blood‑stained hatchet, chadar etc. and to the discovery of the corpse of Kabil. The learned Additional Sessions Judge thought that these two persons as having removed Kabil in company with was circumstantial evidence to support the regards the other accused, the learned Judge was room for doubt in their favour and he Budho and Gulsher were, however, convicted under sections 368 and. 302, P. P. C., and sentenced to 7 (seven) years' R. I. and to transportation for life respectively.

7. In appeal, the main argument advanced on behalf of the appellants was that Dadoi witness alone could not be believed against the two appellants when he had not been believed against the other four accused ; Secondly, Mst. Rahiman was not produced before the A. S. I. P. in spite of search (p. 79) ; Thirdly, there were contradictions in the statements of the witnesses and of the mashirs ; Fourthly, all the mashirs and the witnesses were by caste Shar and they were inimical towards the Lund clan to which the accused belonged, and lastly there was no motive to kill Kabil because Mst. Rahiman had died two years ago. It was, therefore, contended that if these appellants were to be convicted, Gulsher could be convicted only under section 201 and Budho under section 364, P. P. C.

8. As regards the four accused persons who have. been acquitted, their cases are not before this Court. What the learned Sessions Judge has said is that the complainant Dadoi was aggrieved against the accused because of the murder of his cousin and, therefore, he had tried to involve as many persons as he could and the Sessions Judge thought in their cases the eye‑witness's evidence has not been satisfactorily corroborated by other evidence. The learned Judge nevertheless held that Dadoi was not a false witness. In fact he held to the contrary. Since independent corroboration was not forthcoming in the case of the four accused persons who were acquitted he concluded that they were entitled to the benefit of doubt.

9. As regards Budho, the learned Judge found the following evidence existed against him 1) Statement of Dadoi. (2) Evidence of Minho. (3) Statement of Qamaruddin. (4) Circumstantial evidence of the presence of blood marks up to his house (vide mashirnama Exh. 13). (5) Presence of wheel marks of a bullock cart from the house of Budho leading to the place wherefrom accused Gulsher had produced the corpse. (6) Another circumstance mentioned by the learned Sessions Judge was that Mst. Rahiman was not produced by them before the police and therefore, they were keeping her away se that the motive of killing Kabil deceased may not be estab lished. 10 Budho accused in his statement said that his mother Mst. Rahiman died 2 years ago. There is nothing to disprove this statement. In fact no effort was made by the prosecution to search for Mst. Rahiman or to prove that she was either dead or alive. If she was the cause of this murder, it was necessary that search should have been made for her and the results placed before the Court.

11. On the point of motive, therefore, evidence is lacking. If the woman died 2 years ago, it is doubtful if any action would be taken by her relatives. Budho is 35 and his mother must have been about

50. Whether or not there was any illicit connection was certainly a matter of conjecture. We are, therefore, left with the evidence of facts as they have been deposed.

12. If Dadoi witness is to be believed, he saw the accused Budho along with others taking away Kabil deceased. The learned Sessions Judge thought that this witness was reliable as he had been corroborated by independent evidence of circum stance.

13. The learned counsel for the appellant, however, has suggested that Budho cannot be convicted of au offence under section 302, P. P. C. because he had at the worst only a hand in the removal of Kabil from the place of occurrence, for which it could not be said that accused Budho alone was guilty. There were four others who took part and who were acquitted.

14. The ingredients of an offence under section 364, P. P. C. are: (1) that the accused compelled the deceased to go from, the place in question, (2) that the deceased was compelled by means of force, that the deceased was murdered after abduction or was put in danger of being murdered. It is possible to draw inferences from the evidence that has been led, but it is not possible to say that accused Budho himself committed the murder of Kabil deceased. There were other persons along with Budho and it is not proved that all of them had a common intention of murdering Kabil deceased. The learned Sessions Judge had drawn an inference from the fact that wheel marks of bullock cart were found from Budho's house to the place where Gulsher had produced the corpse, but it is possible to imagine that the bullock cart may have been taken away by somebody else. There is no evidence to show that the bullock cart belonged to Budho or that it was taken by Budho accused himself to the place from where Gulsher took out the dead body. The facts as disclosed by evidence are that the accused Budho along with others compelled Kabil deceased to go with Budho and others in a bullock cart and afterwards Kabil was found dead. Wheel marks of the cart were, found in existence from the house of Budho to the place where Kabil's corpse was found. There is an irresistible conclusion that Kabil was taken away for being murdered and this was in the knowledge of Budho accused. The evidence therefore discloses an offence under section 64, P. P. C. and not under section 302, P. P. C.

15. We accordingly set aside the order of the learned Sessions Judge and convict accused Budho under section 364, P. P. C. and sentence him to seven years' R. I.

16. As‑regards Gulsher accused, the assessors thought that he was guilty of murder. His counsel has suggested that he would be guilty only under section 201, P. P. C.

17. Section 201, P. P. C. reads : "

201. Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence ' of the commission of that offence to disappear, with, the intention o screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, shall if the offence which he knows or believes to have been committed is punishable with death,. be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine, and, if the offence is punishable with transportation for life or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine ; and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, or with fine, or with both."

18. Under section 201, P. P. C., it is necessary to prove (1) that an offence has been committed, (2) that the accused knew or had reason to believe that such an offence had been committed, (3) that the accused caused . evidence thereof to disappear, and (4) that the accused did this with the intent to screen the offender from legal punishment. Under section 302, P. P. C., however it is necessary to prove that the accused himself committed the murder of the deceased. It is admitted that there is no direct evidence of, the murder of. deceased Kabil by Gulsher. The evidence of Gulsher possessing a motive to kill Kabil is far from satisfactory. Gulsher accused was one of those persons who had taken away Kabil from the place of occurrence and he was seen by Dadoi witness doing so but Dadoi does not say . that he saw Gulsher doing anything more with the deceased. For that inference the learned Sessions Judge has relied upon circumstantial evidence, which is: (1) Accused Gulsher took the police to the house of Budho, from where he showed them wheel marks of bullock cart that was traced up to the place where the corpse of Kabil was found. (2) Gulsher produced the corpse of Kabil deceased. (3) Accused himself dug ground, removed the logs and wood and produced the corpse. (4) The corpse had a shirt, loin‑cloth and turben which were described by Dadoi in his F. I. R., as articles of wear on the person of Kabil deceased.

19. The learned counsel for the accused suggested firstly that this evidence did not prove that any murder was committed by Gulsher himself. According to him there was no common intention proved to murder the deceased and there were four others acquitted who had taken part in the abduction of the deceased, It was quite possible that the four others might have' murdered Kabil and have made Gulsher bury the corpse or would have done the burial themselves within the knowledge of Gulsher.

20. According to learned counsel for Gulsher no motive was established as to why Kabil should be murdered by Gulsher. The fact that Mst. Rahiman was not produced and . Budho alleged that she was his mother and had died 2 years ago, showed that Gulsher's intention to commit murder of the deceased Kabil because of his illicit connection with Mst. Rahiman could not be considered proved. Gulsher was not the person directly concerned in the affair of Mst. Rahiman. We are, therefore, of the opinion that the charge of murder in the case of Gulsher also has not been established.

21. As regards the remaining evidence, we find no sufficient reason, to discredit it, namely: (1) Dadoi's statement that.Gulsher was one of those persons responsible for the taking away of Kabil deceased, and (2) Gulsher took the police party to the place where the corpse of Kabil deceased was dug up and he did not give this ,information to anybody else.

22. The learned Sessions Judge though that Gulsher accused should be held guilty 'under section 302, P. P. C., and not under section 201, P. P. C., because respecting him the evidence was clear that he had taken away Kabil deceased, and shortly afterwards he had pointed out the place of murder as well as the burial of the deceased.

23. The learned Sessions Judge has obviously relied upon the proximity of time far his inference that accused Gulsher must have committed the murder. In our opinion there should have been more convin cing evidence to bring home the charge of murder under section 302, P. P. C. There is no judicial confession or any extra‑judicial confession or any other evidence to suggest that out of the persons who were seen by Dadoi taking away Kabil deceased, Gulsher was definitely actuated with motive of murder. The evidence about motive to kill Kabil deceased is not con vincing. There is thus reasonable doubt in favour of appellant Gulsher so far his actual murdering of Kabil is concerned.

24. We accordingly find that Kabil deceased was murdered and that accused Gulsher knew the place where he was buried, but he did not give this information to screen the offender from legal punishment and that he was a party to the causing of the evidence of murder to disappear till he was arrested.

25. We further find that the charge against him under section 364, P. P. C. is also proved since, as stated by Dadoi, he was one of those persons who had abducted Kabil deceased and later on Kabil deceased was found to have been murdered.

26. We accordingly set aside the conviction of Gulsher appellant under section 302, P. P. C., but find him guilty under sections 201 and 364, P. P. C., and sentence him to 7 (seven) years' R. I. under each section. The sentences to run con currently. S.B. Order accordingly.