P L D 1964 Dacca 697 (PLP)

A. S. CHOWDHURY, J.‑The two appellants before us along with two others were placed on their trial before an Additional Sessions Judge of Bakerganj on charges under sections 302/109 and 364 of the Pakistan Penal Code. The trial was conducted with the aid of assessors. The learned Additional Sessions Judge eventually acquitted the other two accused and convicted the appellants under the aforesaid sections and sentenced them to transportation for life under section 302/109 of the Penal Code but did not pass any separate sentence under section 364 of the Penal Code. The facts of the case lie within a small compass. According to the prosecution P. W. 2 Makram Ali Sardar, the complainant, his uncle Sahed Ali‑the deceased and others of their party have some ancestral properties at village Saura‑Saidkhali within Police Station Hizla. These lands were diluviated and subsequently there was reformation in site. The complainant party, it is said, have been possessing the lands since such reformation and they con structed their residential huts thereon. These huts were blown away during the last cyclone. Hence on 27th Kartick, 1367 B. S. corresponding to 13th November 1960, the complainant party were making preparation for reconstruction of their huts when the appellants along with others, 60/70 persons in all, came variously armed with lejas and lathis, etc., and fell upon the complainant party, assaulted them and forcibly carried away five of them, including the deceased Sahed Ali. It is said that this occurrence was a sequel to the refusal of the complainant to let out the lands on barga system to the accused party. P. W. 2 Makram Ali Sardar filed a petition of complaint in the Court of the Sub‑ Divisional Magistrate of Barisal on the following day. This petition of complaint having been forwarded to the Police for investigation was treated as first information report. A few days after the occurrence the dead body of Sahed Ali was discovered on the bank of the river Ballashia. The wife, son and other relations of the deceased went there and identified the dead body to be of Sahed Ali, After holding inquest on the dead body the Investigating Officer forwarded the same to the morgue for post‑mortem examination which was held by P. W. 1 Dr. A. N. Wahid. One Sub‑Inspector of Police of Hizla Police Station conducted the investigation of the case and eventually submitted charge -sheet against four persons, including the two appellants. After a preliminary enquiry by a competent Magistrate the appellants and the two other accused were committed to the Court of Sessions for their trial. The defence version of the occurrence is completely at variance with the prosecution story as narrated above. It is the defence case that the genesis of the occurrence was the murder of one Sikim Ali, brother of accused Noor Muhammad Sardar. A separate case against some men belonging to the complainant party was started at the Hizla Police Station which was pending enquiry by a Magistrate during the trial of this case. According to the defence, deceased Sikim Ali took settlement of some specific land in the same Char from the Tagore Estate and on the date of occurrence while the deceased Sikim Ali and some of the accused were ploughing that land the complainant party, 20/25 persons, attacked them being variously armed. The hurling of a leja by some one of the complainant party led to the instantaneous death of Sikim Ali. The identity of the dead body found at the bank of the Ballasbia river was also challenged by the defence. It will be seen that the occurrence is an admitted fact although the two versions are different. While the prosecution story is that this occurrence took place on the land of com plainant Makram Ali Sardar and Sahed Ali Sardar (deceased), the defence version is that it took place on the land which Sikim Ali took settlement of from the Tagore Estate. Thus one fundamental difference between the version of the two sides is as regards the venue of the occurrence. We shall again discuss this point hereafter. The prosecution case has been narrated in detail by P. W. 2 Makram Ali Sardar. His evidence discloses that they have got 7/8 kenies of ancestral lands at village Saura‑Saidkhali. These lands having been diluviated reformed in their original site where the complainant and men of his party have been living after constructing houses. The huts were blown away by the cyclone preceding the month of Kartick, 1367 B. S. On the date of occurrence they erected two huts and kept their roofs prepared to be fixed up later. At that time the accused party, numbering 60/70 persons, fell upon them armed with leja, lathi and ram dao, etc. and forcibly dragged away deceased Sahed Ali and four others, namely, Taber Ali, Jobed Ali, Momen Ali and Akram Ali. He has specifically stated in his evidence that appellant Ahad Ali held his uncle Sahed Ali and he also aimed a blow at the head of the witness but it struck his hand. His further evidence is that Ahad Ali dealt another blow at the head of Kanchan Ali. His evidence further shows that while the dead body of Sahed Ali was recovered the other four persons who were abducted, as stated above could not be traced out. As regards the occurrence, P. W. 2 Makram Ali Sardar has received full corroboration from P. W. 4 Serajul Huq Bhuiya, P. W. 6 Abdul Hashem, P. W. 8 Jonab Ali and P. W. 9 Kanchan Ali. Of these P. Ws. S; rajul Huq Bhuiya and Jonab Ali are independent and disinterested witnesses. A suggestion put forward by the defence to Serajul Huq Bhuiya was that Abdul Hashem, an accused in the Sikim Ali murder case and a relation of the complainant, is his `chachata bhai' (cousin) but be flatly, denied that suggestion. It was further suggested that he is `Phupa' (father's sister's husband) of the complainant. This suggestion was also emphatically denied by the witness. There is not an iota of evidence on record to show that either of these witnesses‑--Serajul Haq Bhuiya and Jonab Ali‑is in any way connected with the complainant, directly or even remotely or has any animus against the appellants. Their credit has not been shaken. We have no reason to discard their evidence. So far as P. W. 6 Abdul Hasham is concerned, it has transpired that his house is 7/8 miles away from the disputed Char and that he has no land in that Char. He claims to have witnessed the occurrence because he was cutting `kasbia' i.e., long grass, in the same Char at a distance of 20/25 hals from the place of occurrence. He does not appear to be a natural and probable witness. As regards P. W. 9 Kanchan Ali, it appears that he is a relation of deceased Sahed Ali, being the latter's maternal uncle. His presence at the time of occurrence cannot, however, be challenged in view of the fact that it has transpired that he was given a blow by appellant Ahad Ali and this was borne out by the medical evidence. P. W. 10 Dr. Abdul Aziz examined him as also P. W. 2 Makram Ali and found injuries on their persons. Thus P. W. 9 Kanchan Ali is a probable witness and since his testimony is corroborated by the evidence of independent and disinterested witnesses, namely, Serajul Huq Bhuiya and Jonah Ali, there is no valid ground to disbelieve him. The evidence of P. W. 15, Md. Safaruddin Talukdar, who held the investigation in this case, shows that he seized blood‑stained pieces of bamboo, some blood‑stained earth and 8 blood‑stained handles of lejas from the place of occurrence as alleged by the prosecution and near‑about it. This evidence is further corroborated by the seizure list, under which he seized these alamats, collectively marked Exh. I. This investigating officer stated in answer to a question put by the trial Court that men on the side of the accused were also present at the time of his investigation, yet there is nothing to show that, any place other than that alleged by the prosecution was shown to him by the accused party as the actual place of occurrence, nor did he find any alamat at any place apart from the place of occurrence as alleged by the prosecution. Thus prosecution version of the occurrence has not only been proved by independent and dis interested witnesses, viz., P. W. 4 Serajul Huq Bhuiya and P. W. 8 Jonab Ali, but is also corroborated, in all material particulars, by a natural and probable witness, viz., P. W. 9 Kanchan Ali. Prosecution evidence is further corroborated by the discovery of alamats on the alleged place of occurrence by the investigating officer P. W. 15 Md. Safaruddin Talukdar. We are satisfied on the evidence on record that the occurrence took place at the time and place and in the manner and circumstances as alleged by the prosecution. The next vital question is the identity of the dead body. It has been vehemently argued by the learned counsel for the appellants that the identity of the dead body recovered from the bank of Ballashia River with that of deceased Sahed Ali, has not been satisfactorily proved. In this connection, he also drew our attention to the fact that while the investigating officer did not find the penis and scrotum of the dead body cut off, the Medical Officer, who conducted the post‑mortem examination found them cut off. P. W. 2 Makram Ali, P. W. 3 Shamsul Huq, P. W. 5 Khorshed Alam, P. W. 9 Kanchan Ali, P. W. 12 Nuruzzaman and P. W. 13 Halima Khatun are witnesses of identification. Nuruzzaman and Halima Khatun are son and wife, respectively, of the deceased, while Makram Ali and Kanchan Ali are his nephews. They are the most competent witnesses to prove identity of the dead body found on the bank of the river Ballashia being the nearest relations of Sahed Ali. P. W. 5 Khorshed Alam is the village Chowkidar and an impartial witness. There is evidence to the effect that two of the teeth of upper jaw of the deceased Sahed Ali had fallen, that he had two genjis in his wearing one black and the other white, that he had a ring in the little finger on the left hand and one scar mark on the left leg. It has transpired in the evidence of the identifying witnesses that they could identify the dead body on the basis of these data. These constituted reliable means of identification by persons intimately connected with the deceased. We have no doubt that the identity of the dead body discovered on the bank of the river as that of Sabed Ali has been satisfactorily proved. It is true that P. W. 15 Md. Safaruddin Talukdar did not mention in his inquest report that he found the penis and the scrotum of the dead body cut off while Dr. A. N. Wahid in course of autopsy of the dead body found the penis and scrotum cut completely leaving one wound 2 ' x 2" x 1" deep. This apparent discrepancy does not affect the merit of the prosecu tion case. The inquest appears to have been held in a superficial manner and the investigating officer did not carefully examine the whole body. The medical evidence is undoubtedly more depend able as the Medical Officer conducted a thorough and scientific examination. We would accept the evidence on this point of Dr. A. N. Wahid in preference to that of the investigating officer. The fact that Sahed Ali was murdered was not challenged by the defence. The P. W. 1 Dr, A. N. Wahid found during post mortem examination of his dead body one penetrating wound on the right thigh and another penetrating wound on the back of the right buttock. Besides, he found the penis and scrotum cut completely leaving one wound 2 " x 2" x 1" deep and that the death was due to shock and haemorrhage as a result of those injuries which were ante mortem and homicidal in nature. Thus there is no room for doubt that Sahed Ali was murdered as alleged by the prosecution. A question has been raised before us as to whether the charge under section 364 of the Penal Code against the appellants is an appropriate charge in this case. It has been pointed out that it was held in the case of Sher Ali v. The State (P L D 1958 Dacca 499) that when the dead body is found following the alleged abduction, the only charge that can be framed is one for murder or the abetment of murder and that there can be no charge under section 364 of the Penal Code. In our view that decision is correct on the facts of that particular case. That case cannot, however, be treated as an authority for a wide and general proposition that whenever abduction is followed by murder no charge under section 364 of the Penal Code can be framed against the accused and that the charge must, of necessity, be one under section 302/109 of the Penal Code. It is true that there can be cases where, in the event of a person being abducted and subsequently found to be dead, the offence committed will come within the mischief of section 302/109 of the Penal Code. Similarly, it may welt be said that where persons are taken away by force and subsequently found to be murdered, the offence will come more appropriately under section 364 of the Penal Code. In the former case, the proper charge would be one under section 302/109 of the Penal Code, whereas in the latter case the proper charge would be under section 364 of the Code. Each case must be tried and decided on its own facts and circumstances. The proximity of time between the abduction and the killing as also the proximity of place where the murder and the abduction have taken place, are important factors in determining the question whether the offence falls within the mischief of section 302/109 or of section 364 of the Code. No fixed yardstick can be forged which might be of universal application. Where abduction takes place at night and on the following morning the dead body is discovered near the place of abduction with injuries which caused the death, the cast will, in all probabilities, come under section 302/109 of the Code inasmuch as the irresistible inference raised by such circumstance would be that the abductor did something in order to facilitate the commission of the murder. The taking away of the deceased, by force or deceit under such conditions, may constitute con clusive circumstantial evidence of abetment. In the case referred to above Sher Alt v. The State, the deceased was abducted at night (at about 11 p.m.) and in the next morning he was found murdered in a nearby jute field. Thus the proper charge was undoubtedly a charge under section 302/109 of the Penal Code. The facts of the present case are different. The dead body of Sahed Ali Sardar was discovered 5 or 6 days after the abduction and that again at a far off place on the bank of a river. It cannot be said that the irresistible and irrefutable inference is that the abduction was for the purpose of facilitating the murder. Another important factor to consider in the present case is that the abduction of Sahed Ali was in course of a violent fight by persons who had animus against him. The forcible taking away of those five persons seems to be unpremeditated. Such abduction does not constitute conclusive evidence of abetment of murder. It is noteworthy that as many as five persons were spirited away by the accused party and while the dead body of one has been recovered, the other four are still untraced. The probability is that they may also have been done to death. The basic fact which stares one in the face is that the aforesaid persons were taken away in the beat of a violent clash. There is no indication of a plan or a preconceived design to do so. Whatever that may be, there can be no doubt that the abduction of the five persons was obviously with the intention that they might be so disposed of as to be put in danger of being murdered. Thus the proper charge in the present case was under section 364 of the Penal Code. Even assuming that alternative charges under sections 302/109 and 364 of the Penal Code could be framed against the appellants, when there is a doubt as to the applicability of section 302/109 of the Penal Code to the facts of the present case, the safer course is to charge and convict them under the lesser offence. For reasons stated above, we set aside the conviction of the appellants under section 302/109 of the Pakistan Penal Code as well as the sentence of transportation for life imposed on each of them thereunder. We, however, affirm their conviction under section 364 of the Penal Code and sentence each of them to under go rigorous imprisonment for a term of five years. The result, therefore, is, that the appeal before us succeeds in part and is disposed of in terms of the order passed above. S. M. MURSHED, J.‑I agree. S. Q. Appeal accepted.