P L D 1959 (W (PLP)

MUHAMMAD SHAFI, J.‑This is an appeal against the order of Mian Shakirullah Jan, Sessions Judge, Abbottabad, dated the 9th of September 1958, by which he convicted Farid Muhammad, aged about 28 years, son of Akbar Ali, of Kala Par, under section 302, P. P. C., for having strangulated to death‑one Miskin, aged about 25 years, son of Mir Zaman, a Gujar, of Ghanela, sometime in December 1957, and under section 201, P. P. C.., for trying to disappear the evidence of murder by burying the dead body of the aforesaid Miskin in a ditch. On the first count, he has been sentenced to death and on the 2nd to five years' rigorous imprisonment. The sentence of death is also before u& for confirmation: The other three accused, Abdur Rahman, aged about 40 years, son of Fazal Khan, Wazir Muhammad, aged about 35 years, son of Akbar Ali, and Miskin Gul, aged about 26 or 27 years, son of Ali Zaman, were found not guilty and acquitted. It is admitted by the learned counsel appearing for the Stat that the conviction of the accused‑appellant under section 201, P. P. C. cannot be sustained, because a person cannot both be convicted for murder and for concealing evidence of murder. His appeal therefore, so far as the offence under section 201, P. P. C. is concerned is accepted, and is acquitted, of the charge. As regards his conviction and sentence under section 302, P. P. C. it has been proved beyond any shadow of doubt that he did commit the murder and for a very foul reason. They should, therefore, be maintained. The facts of the case in brief are that the deceased was living along with his Wife, Mst. Bibi Nur (P. W. 4) whom he married three years before the occurrence in Ghanela village. As is the habit of the people living in that village they shift to the plains during winter. The deceased and his wife also did the same. Gul Zaman (P. W. 5), the father of Bibi Noor, similarly came down to the plains and left his village a day earlier than the deceased and Mst. Bibi Noor, along with his flock of sheep and goats instructing them to follow him. The deceased and Mst. Bibi Noor (P. W. 4) came to Kala Par village and met Farid Muhammad accused whom they asked for a room to reside in. Farid Muhammad acceded to their request and gave them a room, but as it contained hay, the couple apprehended that the hay might catch fire and thus burn the room as well as themselves. They, therefore, asked for another kotha from the accused‑appellant, who accordingly obliged them. Gul Zaman (P. W. 5), however, did not get a clue of the whereabouts of his daughter and son‑in‑law, because he settled down in Sherwan village. About eight or ten days later, the accused‑appellant asked the deceased and his wife to quit the village, because the villagers were objecting to their presence there. The couple therefore, left at about digar time to go to some other place. They had traversed some distance, when at about Khuftan time; they are alleged to have been overtaken by the accused‑appellant, who was accompanied by the three acquitted accused, out of whom Wazir Muhammad is his brother. It is alleged that Wazir Muhammad caught hold of Mst. Bibi Noor (P. W. 4) while the remaining three secured the deceased and threw him on the ground. Miskin Gul put his foot on the throat of the deceased and pressed it. He was at the time being held by Wazir Muhammad and Farid Muhammad accused. As the deceased did not die of this pressure, therefore, Miskin Gul put the turban of Farid Muhammad accused round the neck of the deceased and twisted it until the deceased breathed his last. According to the statement of Mst. Bibi Noor (P. W. 4) the deceased asked the culprits as to why they were killing him, and they told him that it was because they wanted to take his wife. Farid Muhammad and Miskin Gul then took the dead body to a ditch which had been dug up by the potters and buried it there. Mst. Bibi Noor was then brought to the house of the accused‑appellant and kept there for a few days. The sister of the accused‑appellant was the only other occupant of the house. Mst. Bibi Noor was then taken to village Makhan. Said Rasan (P. W. 7), who is married to the sister of the accused‑appellant, and lives in Kandoori village, situated at a distance of about four miles from Kala Par village, was approached by the accused‑appellant and requested to impersonate for Miskin deceased and execute a divorce deed. Consequently, Miskin Gul, and Wazir Muhammad, the acquitted accused, Mst. Bibi Noor and Said Rasan (P. W. 7) were taken to the house of Maulvi Ghulam Sarwar (P. W. 8), a teacher in Rehmania School, Haripur, living in village Makhan. He was asked to scribe a divorce deed which he did at the instance of Said Rasan on the 25th of December 1957. The accused appellant then took Mst. Bibi Noor (P. W. 4) to his house. The accused‑appellant, Wazir Muhammad, and Miskin Gul then went to Abdur Rahim Khan (P. W. 6) and requested him to arrange for the marriage of Mst. Bibi Noor with Farid Muhammad accused‑appellant. This witness, however, refused to do so; because the divorce deed did not bear the signatures of the scribe. This document was, therefore, taken back to Maulvi Ghulam Sarwar, who signed it and at the same time addressed a letter to Abdur Rahim Khan that it was in his presence that Miskin had divorced his wife. Gul Zaman (P. W. 5), on the other hand, got worried about the disappearance of his daughter and son‑in‑law. He met one Mir Alant at village Bir who informed him that one Miskin Gu jar had divorced his wife at village Kala Par, after executing a divorce deed, and had himself left for the down country. He was also informed that before the divorce, Miskin was living in the house of Farid Muhammad accused. Gul Zaman, therefore, went to Farid Muhammad's house, where he himself was not present, but he met an old woman, who told him that the deceased and Mst. Bibi Noor, after living there for a few days, had left for an unknown destination. Gul Zaman then went to Soha village, and came in contact with Abdur Rahim (P. W. 6), who sent for Farid Muhammad and Wazir Muhammad accused along with Bibi Noor for inquiries. They came at the time when Gul Zaman was already present in his hujra. Farid Muhammad and Wazir Muhammad assured Gul Zaman and Abdur Rahim Khan that Miskin was alive and had divorced Mst. Bibi Noor, who also corroborated their statement. These persons also promised to produce the deceased within five days, and when they failed to do so, Gul Zaman went on the 3rd of January 1958, to Sherwan Police Station, situated at a distance of about 17 miles from the scene of occurrence, and lodged a report there, saying that his son‑in‑law had been murdered by the accused‑appellant and the three acquitted accused, including Wazir Muhammad, who is the brother of the accused‑appellant. This report was recorded by H. C. Badar Bakht (P. W. 14). Abdul Malik Khan Sub‑Inspector (P. W. 16), who was then the Station House Officer of Sherwan Thana, was away on tour, and he received a copy of the report there. He reached Kala Par village on the 4th of January 1958. He made a search for the accused‑appellant and Mst. Bibi Noor, but could not find their clue. He, therefore, detailed Khalilur Rehman (P. W. 15) to make a thorough search for them. This witness saw the accused‑appellant and Mst. Bibi Noor in village Sikandarpur. He stopped them and took them along with him to village Kala Par, and handed them over to Abdul Malik Khan (P. W. 16). The accused‑appellant then produced a divorce deed before Abdul Malik Khan on the 5th of January 1958. On the 7th of January Farid Muhammad agreed to point out the place where he had buried the dead body of the unfortunate victim. Abdul Malik Khan (P. W. 16) proceeded to that spot, accompanied by Abdur Rahim Khan (P. W. 6) one Gul Zaman, and one Subedar Faqir Muhammad. He was led by Farid Muhammad who pointed out the dead body of the deceased which was lying exposed. As the body was in an advanced state of decomposition, therefore, Dr: Hamid Hussain (P. W. 1) was sent for to perform the autopsy at that very place. He found only a bony skeleton left behind; the skin and flesh over the mouth, face, ears and nostrils etc. appeared to be eaten away by wild animals. The skin, flesh, trachea, vessels of the left side of the neck etc. were absent. Common carotid artery on the right side was present in a state of decomposition which was lacerated at about the level of the fifth cervical vertebra and some bloody fluid was present along with the laceration of the artery. Eyes were decomposed, thoracic walls, right pleura, left pleura, both the lungs were in a state of decomposition, the lungs were represented by two decomposed lumps, larynx and trachea were absent, and bronchi was decom posed. Small pin point haemorrhage spots were present under the pericardium. Heart was dilated and in its earliest stages of decomposition. Thoracic walls, pharynx and esophagus were in a state of early decomposition. The stomach was empty. According to the opinion of the doctor the death had occurred due to asphyxia. He based his opinion purely on the presence of small pin point spots present under the pericardium. The accused‑appellant expressed his willingness to confess his guilt, and he was, therefore, produced before S. Akbar Ali Shah (P. W. 3), Magistrate First Class, Darband, for recording a confession. He stated before this Magistrate that about a month prior to the occurrence, Miskin had come to his house, along with his wife, Bibi Noor (P. W. 4). Later on, he turned the husband and the wife out of his house, but then he entered into a conspiracy with his co‑accused to kill Miskin in order to facilitate his marriage with Bibi Noor. Abdur Rehman and Miskin Gul, who were paid some money by him, followed the couple, and he also joined them later on. The above‑mentioned two persons caught hold of the deceased and killed him by strangulation. According to him, they concealed the dead body under the earth. Abdur Rehman and Miskin Gul went to their own places while he returned to his house along with Bibi Noor. He admitted that he got the divorce deed prepared by Maulvi Ghulam Sarwar, and later on, produced Msr. Bibi Noor before Abdur Rahim Khan. He also admitted that he took the woman back and was taking her to village Bir when he was arrested on the way. At the trial, ocular evidence was given by Mst. Bibi Noor (P. W. 4) and the circumstantial evidence indicting the accused with the murder, by Gul Zaman (P. W. 5), Abdur Rahim Khan (P. W. 6); Said Rasan (P. W. 7) and Maulvi Ghulam Sarwar (P. W. 8). The accused, when examined, denied the whole occurrence. Farid Muhammad admitted that he was arrested by Khalilur Rehman in Haripur, but denied that Mst. Bibi Noor was with him. When questioned about the confession, he said that it was not voluntary, because the contents thereof were put into his mouth by the police officer, who had earlier tortured him and told him that if he did not say exactly what he was wanted to say, he would be remanded to police custody. He added that the police officer promised him that he would not be put in the dock, but produced as a prosecution witness. He promised to make a further statement in the Court of Session, but when asked to do so in that Court, he declined to add anything to his previous statement. The three assessors who assisted the learned Sessions Judge at the trial returned a verdict of guilty as against the accused appellant. The most important question canvassed at the Bar by the learned counsel appearing for the defence is about the credence which should be attached to the statement of Mst. Bibi Noor, the only ocular witness produced at the trial. It is submitted that she is an accomplice, and she should not, therefore, be believed. This argument found favour with the learned trial Judge, who, in finding the accused‑appellant guilty, completely excluded the statement of Mst. Bibi Noor from consideration. This view of the law taken by the learned trial Judge seems to be erroneous. Assuming that Mst: Bibi Noor was an accomplice, still, her evidence could not be rejected altogether, and was to be acted upon if there was a corroboration of her statement on material particulars qua the accused‑appellant. No authority need be cited in support of this view, because it is now a well -established rule of law. Under section 133 of the Evidence Act, which the learned Sessions Judge seems to have completely overlooked, an accomplice is a competent witness against an accused person and a conviction, based on it, is not illegal, simply because it is not corroborated. The Courts, however, as guided by section 114, Illustration (b), which lays down that an accomplice is unworthy of credit, unless he is corroborated in material particulars, insist on such corroboration, but then that is all. It does not mean that the evidence of an accomplice should totally be rejected: With due deference to the learned Judge who decided this case, I do not feel inclined to accept his view that Mst. Bibi Noor was an accomplice in the murder of the deceased. There is no direct evidence produced upon the record in corroboration of this fact. Even, the accused in his confession, did not say that Mst. Bibi Noor reciprocated his love, or had any hand in her husband's murder. At the utmost, it can only be said that she was a silent spectator of the murder, but then under the circum stances, what else could she do The test laid down in order to hold a certain person as an accomplice is, whether such person sustains such a relation to the criminal act that he or she can be jointly indicted with the accused whom he or she implicates. On the evidence produced, if Mst. Bibi Nur had been put in the dock along with the accused‑appellant, she could not have by any Court of law been convicted for murder. She is not shown to be in any way concerned with the commission of the murder for which the accused‑appellant was charged. The learned Sessions Judge has argued, that she is an accomplice, because she admitted in her statement before the police, but denied it at the trial, that she had developed an illegal intimacy with Farid Muhammad appellant, who had proposed to marry her, and that she had consented to do so only if she was divorced by her husband, and also that she admitted therein that the appellant informed her that he would turn them out of the house and then follow her and rescue her from her husband and. later on compromise the affair with her parents. I fail to see anything in this statement, even if it be true, that Mst. Bibi Noor knew that her husband was going to be killed, or that Mst. Bibi Noor had a conscious hand in the offence. All that transpired from this statement is that the woman agreed to marry Farid Muhammad appellant, provided her husband had divorced her, and that she knew that after she was turned out of the house along with her husband, she would be rescued, but not that she would be rescued after her husband had been killed. On this statement, she might be said that she was an accomplice of Farid Muhammad when he intended to abduct her, but not that she was also a murderer along with him. The learned Sessions Judge relied on A I R 1936 Lah. 731, in which it was held that a woman who was cognizant of the fact that her paramour intended to kill her husband, does not disclose the fact to her husband, she must be regarded as an accomplice in the crime. I respectfully agree with this obser vation, but fail to find the application of this authority to the facts of the present case. The learned Sessions Judge then quoted A I R 1934 Oudh 315, wherein it was held that the evidence of a person who has seen a murder committed, but does not give any information thereof, may or may not be better than that of an accomplice, but the truth of the ;story told by him is not above suspicion. I also agree with this finding, but again fail to see its application to the facts of the present case. It is true that until she was produced before the police, she did not utter a word about the incident to anybody, yet I am firmly of the opinion that she had no opportunity before that to do so. She was kept for a very long time in the house of the accused‑appellant where she had no opportunity to mention this fact to anybody. She was taken before Abdur Rahim Khan (P. W. 6) and Maulvi Ghulam Sarwar (P. W. 8), but she could not be expected to pick up the courage to tell these two gentlemen the story of the murder when throughout she was accompanied by the accused‑appellant and his other relations. It will be totally wrong to say that the rigid proposition that a person who sees the murder being committed is an accomplice if he does not disclose the facts of the murder to anybody. He would be an accomplice if he has the opportunity to disclose it and fails to do so. In the present case, up to the time Mst. Bibi Noor was produced before the police, she was not a free person, and was, therefore, not expected to utter a word about the murder. For this reason alone, therefore, I am not prepared to hold that Mst. Bibi Noor was an accomplice. When Mst. Bibi Noor and her husband were turned out of the house and it was when they were on their way to another village that her husband was killed, she would surely be a natural witness. She had no enmity with Farid Muhammad to involve him falsely. On the contrary, if she had developed an illegitimate intimacy with him, instead of implicating him in the murder, she would try to save him. If she, therefore, says that the accused, in company with some others, committed the murder, then I do not see why should her statement be not accepted as correct. At this stage, I wish to make it clear that the learned trial Judge acquitted Abdur Rehman, Miskin Gul and Wazir Muhammad on the mistaken view which he took of the law. Their acquittal, therefore, will also be for that reason rendered bad. But, simply because some of the accomplices of the accused‑appellant have been acquitted, I see no justification to perpetuate the wrong and acquit the accused‑appellant also. It is true that according to the evidence of Mst. Bibi Noor as well as the confession of the accused, it was not he who actually strangulated, the deceased yet his participation in the crime cannot be doubted. The murder was the consequence of their joint action. We have then upon this record the circumstantial evidence, the truth of which can hardly be doubted, and was in fact not even doubted by the learned counsel appearing for the appellant. This circumstantial evidence, apart from affording material corroboration to the statement of Mst. Bibi Noor, assuming that she is an accomplice, corroborates the retracted confession as well and then supplies independent proof that the accused‑appellant in company with some others committed the murder. It was he who asked Said Rasan (P. W. 6) td impersonate for the husband of Mst. Bibi Noor. This witness is very closely related to him and it is inconceivable that he should concoct a false story in order to involve him in this murder. If the accused did not commit the murder or did not have a hand in it, there was no necessity for him to request his brother‑in‑law to pretend to be the woman's husband. The statement of Said Rasan is fully corroborated by the statement of Maulvi Ghulam Sarwar (P. W. 8) who is also a completely disinterested witness. Abdur Rahim Khan (P. W. 6), who is an equally disinterested witness, has stated that it was the accused‑appellant who had requested him to arrange for the marriage of the woman with him. If the divorce deed was fictitious, as the accused‑appellant knew it was, then he could not marry the woman unless of course it was within his knowledge that the husband of the woman was not there to claim her from him which could be the case only if he was dead. There is then the all important evidence of the accused's pointing out the ditch from where the dead body of the deceased was recovered. Abdul Malik Khan (P. W. 16) is a responsible police officer and would not concoct the story simply to involve him in such a serious case. His statement is corroborated by the' statement of Abdur Rahim Khan (P. W. 6), who stated that it was the accused‑appellant who led the Sub‑Inspector to the ditch where the dead body of the deceased was recovered. The accused appellant should have disclosed to the Court as to how did he come to know of the presence of the dead body in the ditch from where it was recovered. If the accused person does not give a reasonable explanation of a certain fact proved in the case, then it is perfectly legitimate for the Court to raise a presumption against him. If a person was killed and his dead body is recovered at the instance of the accused, then the presumption would be that the accused had a hand in the murder. The learned counsel for the defence has doubted that the dead body recovered was that of the deceased. On this point, we do not doubt the statement of Gul Zaman, who identified the dead body from its hands and clothes. The shalwar of the deceased, which was recovered at a short distance from this ditch, was recognised by Mst. Bibi Noor as belonging to her husband. Apart from this, if the dead body recovered was not that of the deceased, but of somebody else normally buried there, then the relations of that dead person would necessarily have not allowed the police to exhume the body. There is no evidence upon the record to show that the dead body was of anybody else, but of the deceased in this case. Much capital was made out of the fact that the utensils which were recovered from the house of the accused‑appellant, did not connect the accused‑appellant with the murder. On this point, I am inclined to agree with the defence counsel because the mere presence of the utensils in the house of the accused‑appellant may or may not lead to the conclusion that Farid Muhammad appellant had a hand in the murder. They were identified by Mst. Bibi Noor, but then they may have been seen by her in the house of Farid, because he in his statement, claims then to be his own. The learned counsel for the accused also doubted that the deceased met a violent death. It is true that the body was in an advanced state of decomposition and it was difficult for the doctor to find any marks of violence on it. Still, he was. definitely of the opinion that the death had occurred due to asphyxia, and he based this statement of his on the presence of small pin point hemorrhagic spots under the pericardium. According to him, the only other case in which such spots would be present was in severe anaemia cases, but then the deceased did not have anaemia. There is, thus, little doubt that the deceased died a violent death, because if it was not the case, then at least his wife would have said that he died a natural death, which she would have certainly done in order to save her paramour. Considering the statement of the widow of the deceased, the retracted confession, corroborated as it is by overwhelming circumstantial evidence, we have no hesitation in arriving at the conclusion that the deceased died a violent death, which was brought about by the accused‑appellant in conspiracy with some other persons, particularly his co‑accused because Mst. Bibi Noor had no motive whatsoever to charge them falsely. It is significant to note that with the exception of Wazir Muhammad the other two acquitted accused were not, in any way, related to the accused‑appellant. The appeal of the accused‑appellant, therefore, fails and is hereby dismissed. The sentence of death is confirmed. A. H. Appeal dismissed.