1987 PLP 101 (SCMR)

There is an obvious error in the decision of the High Court. So far as its order of conviction of the appellants under section 201/34, P.P.C. is concerned, it will be recalled that the dead body of Bashir deceased could not be removed on account of resistance offered by the injured P. Ws. Consequently, the conviction of the appellants under section 201/34, P.P.C. is unwarranted and the appellants could only have been convicted for an attempt to cause disappearance of the evidence under section 201, P.P.C. Thus, the appeal of the appellants against their conviction and sentence under section 201/34, P.P.C. passed by the High Court must be set aside. However, we are satisfied that the appellants except, perhaps Latif, appellant No.5, were clearly amongst the persons who had gone to the Haveli of Ibrahim to remove the dead body of the deceased and to cause disappearance of the evidence in relation thereto. Hence appellants Nos. 1 to 4 can safely be convicted under section 201/511, P.P.C. read with section 34, P.P.C. The reason why we think that Latif, appellant No.5, is entitled to the benefit of the doubt is because he allegedly caused injuries with his spear to Allah Ditta on his left hand and also to Mst. Naziran. The injuries suffered by them, according to Dr. Shakur Elahi, P. W. 1, were the following:‑ Allah Ditta P. W. 6 (1) One incised wound 3/4" x 1/8" skin deep on the proximal phalanx of left index finger. (2) One incised wound 1/2"x 1/8" skin deep on the palm. (3) One abrasion 1/8" x 1/8" on the back of proximal phalanx of left thumb. All the injuries were simple. Injuries Nos. 1 and 2 were caused with a sharp‑edged weapon while Injury No.3 was with a blunt weapon. While those suffered by Mst. Naziran were these:‑ Mst. Naziran P. W. 8 (1) One incised wound 1/2" x 1/4" on the back of left ring finger proximal phalanx with swelling. (2) One swelling on the inner part of left hand dorsal aspect. (3) One swelling 3" x 2" on the occipital region in the middle. (4) Complaining of pain in the back of, chest. (5) One swelling 1/2" x 1/2" on the medial side of right wrist joint. According to Dr. Shakur Elahi, P. W. 1, all the injuries were simple. Injury No. 1 was caused by a sharp edged weapon while the rest were with blunt weapon. A close scrutiny of the injuries shows that the injuries suffered by both these P. Ws. could not have been caused by a spear. The learned Judges of the High Court, however, were of the view that the injuries suffered by Allah Ditta P. W. showed that such like wounds could be received by a person who was in the process of warding off the blows being inflicted upon him by his assailants. But we feel that in such a case the injuries should have been on both sides of the palm of the hand of this witness which is not the case. The injuries caused to Mst. Naziran Bibi P.W. also do not appear to have been inflicted by a spear. We, therefore, consider that Latif, appellant No. 5, is entitled to the benefit of doubt. So far as the remaining four appellants are concerned, we are in full agreement with the High Court that they had gone to the Haveli, of Ibrahim and tried to remove the dead body of the deceased and!, caused injuries to the P. Ws. and while causing injuries to them had, not even spared a woman and had cut off the ear of Mst. Hussain Bibi, P. W. 7, from its root. Their conviction under section 325 read with section 34, P.P.C. is fully justified and so also the sentence of seven years' R. I. imposed on them. However, we consider that the sentence awarded under section 325/34, P.P.C. and the sentence under section 201/511 read with section 34, P.P.C. should run concurrently and not consecutively. The net result is that Latif, appellant No.5, is acquitted. The conviction of the appellants Nos. 1 to 4 namely, Chiragh Din, Bashir, Rashid and Nazir under section 325/34, P.P.C. as also the sentence of seven years' R. I. each is upheld. They are also convicted under section 201/511 read with section 34, P.P.C. and sentenced to 31 years R.I. each. Both the sentences shall run concurrently and they will also be given the benefit of the provisions of section 382‑B, Cr. P. C.I in computing the sentences, they have yet to undergo. Accordingly, respondents Nos.l to 4 will be taken into custody in order to serve out their outstanding sentences. The appellant Latif shall be set a liberty forthwith unless required in some other Case. This appeal partly succeeds and is disposed of in the above terms M. I. Appeal accepted