P L D 1959 (W (PLP)

Date of hearing : 8‑10‑1958. This is an appeal from the judgment of Mr. Abdur Rashid, Additional Sessions Judge, Lahore at Sheikhupura, in Sessions Case No. 25 of 1956. Appellant Sarwar was convicted under section 201, P. P. C. and sentenced to seven years' rigorous imprisonment.

2. Before dealing with the case on merits it will be proper to mention here that the appellant filed this appeal from jail after a period of 237 days. He has neither made an application nor he had given any sufficient cause to condone delay under the provisions of section 5 of the Limitation Act. The appeal, therefore, is obviously time‑barred and cannot be entertained. I have, however gone through the judgment of the learned Sessions Judge to find out whether it is a fit case to be interfered with under the revisional jurisdiction of this Court. In my opinion the conviction of the appellant under section 201, P. P. C., on the facts of this case is not justified. During the hearing of this case I came across a decision of the Sind Judicial Commissioner's Court reported in Gerimal v. Shewara (A I R 1926 Sind 215), in which a Division Bench of that Court took the view that under the Criminal Procedure Code no application for revision lies in cases in which an appeal lies and, therefore, it is impossible for an appeal filed beyond limitation to be treated as an application for revision so far as criminal procedure goes. With due deference to the view of the learned Judges I am not inclined to accept this view as the prohibition under section 439 (5), Criminal Procedure Code is only in those cases where a party comes to the High Court on the revisional side without filing an appeal. The powers of the High Court under sections 435 and 439, Criminal Procedure Code are very wide and if any matter comes to their notice in which some illegality has been committed, the High Court has ample power to interfere under this provision of law to prevent injustice in spite of the fact that an appeal lies and has not been filed within limitation. This power has been exercised by the High Courts in pre‑Partition India. Tek Chand, J. in Pars Ram v. Emperor (A I R 1931 Lah. 145 at page 148) observed: " It is clear from the words italicised that the prohibition is limited only to those cases in which this Court is asked to interfere at the instance of the party who could have appealed, but has not done so. It leaves untouched the power of this Court to exercise its revisional powers under subsection (1), S. 439, in all other cases namely those in `which the records have been called for by itself, or which have been reported to it for orders under S. 438 or which otherwise come to its knowledge'." and then observed at page 149 " It may also be stated that the High Courts have, of their own motion, frequently set aside convictions of persons jointly tried and convicted at one trial, who had not preferred appeals though they could have done so, but in which the matter had come up before the Court on appeal or revision filed by other convicts, if on examining the record it was discovered that the lower Courts had acted illegally on a point which affected all the convicts equally: See inter alia Broja Kakhal Mozumdar v, Empress ((1901) 5 C W N 330), Bachinta v. Emperor ((1916)17 Cr. L J 97), Raghu Bhumji v. Emperor ((1920) 5 Pat. L J 430), Mir Mouse Ali v. Emperor ((1920) 21 Cr. L J 554) and the decision of Addison, J., in Sant Ram v. Emperor (Cr. Rev. No. 72 of 1929) decided on 12th March 1929. Again there are cases on record in which appeals were filed in the first instance by some or all of the accused persons but later on the appeals were either held to be incompetent or were voluntarily withdrawn by the appellants. Nonetheless the High Courts; if satisfied that a serious mis carriage of justice had taken place, examined the record, and if the circumstances required, have exercised their plenary powers of revision under S. 439 of the Code. A recent instance of such a case is Sham Lai v. Emperor (A I R 1931 Lah. 97) in which an appeal has originally been lodged against his conviction by the convict but when the matter came up for hearing a letter written by him was placed before the learned Judge, cancelling the power of‑attorney which he had given to the advocate who had been engaged to file and prosecute the appeal on his behalf, and stating that he did not intend to proceed with the appeal and that it be taken as having been withdrawn. The appeal was accordingly dismissed, but the matter having come to the notice of the learned Judge, he proceeded to examine the record and cane to the conclusion that the conviction should be maintained but a very substantial reduction made in the sentence." Even in a later Sind case also namely Tejumal Hassomal v. Emperor (A I R 1932 Sind 211) the powers of the High Courts in this respect were recognised. I will, therefore, treat this appeal as revision application.

3. So far as the merits of the case are concerned, appellant Sarwar was challaned under section 302, P. P. C. for causing the death of one Ghulam Muhammad alias Ghulam Rasul. Shortly stated the circumstances in which the alleged murder took place are that the appellant and the deceased were residents of Ajnianwala, within the jurisdiction of Police Station Khanqah Dogran. The deceased was living at the time of his murder with his sister's husband, P. W. Muhammad Hussain. He used to look after the fields of his brother‑in‑law with the assistance of one Milkhi who later on turned to be an approver and was examined in this case as P. W.

8. The prosecution evidence shows that on the evening of 15th Katik (31‑10‑1955), the deceased took the meal of P. W. Milkhi as usual from village Ajnianwala to his well about one mile off. Thereafter he was not seen alive. His brother‑in‑law went to the well and enquired about his where‑abouts but P. W. Milkhi informed him that he had left for some village. After eight or nine days, P. W. Muhammad Hussain received a letter from Shahkot purporting to have been written on behalf of the deceased to the effect that he had reached home safe and will come back to Ajnianwala at the time of reaping the next harvest. P. W. Muhammad Hussain waited for some time and thereafter got an advertise ment published in the Hilal‑i‑Pakistan issue dated 1st February, 1956 asking the deceased to come back but this also proved fruitless. Mst. Hussain Bibi, mother of the deceased, who resided at Shahkot, however, lodged a report in Police Post Ajnianwala on the 13th February 1956 about the disappearance of her son and made allegations against P. W. Muhammad Hussain and accused him for the disappearance. The prosecution story further shows that on the 21st March 1956 P. W. Muhammad Hussain received a ruqqa, dated the 20th March 1956, from P. W. Muhammad Shafi of Jandiala Sher Khan asking him to come and see the witness in connection with some important matter. P. W. Muhammad Hussain met this witness in the evening of the 22nd March 1956 and was informed that the appellant had confessed before him to have committed the murder of the deceased and had also approached him for help to do away with Muhammad Hussain as he was trying to trace out the whereabouts of the deceased. This made Muhammad Hussain to rush to the Police Post Ajnianwala where he produced the ruqqa Exh. P. B. on the 23rd March 1956. ~ On the basis of this ruqqa first information report Exh. P. L./1 was drafted and sent to the Police Station Khanqah registration of the case against the appellant. The appellant was arrested on the same day at 6 p.m. On interrogation he informed the police about the place where the dead body of Ghulam Muhammad deceased was buried. P. W. Milkhi was also arrested. The appellant led the police party in the area of village Kassoke, District Gujranwala, and on his pointing out the dead body of the deceased was disinterred from the field of Raunaqi Teli. P. W. Milkhi thereafter became an approver. The matter was further investigated and was challaned in Court on the 11th April 1956.

4. The prosecution evidence against the appellant consisted of (1) the statement of P. W. Milkhi, the approver, (2) corro borative evidence about the details given by the approver in respect of the offence committed by them, (3) statements of the persons, in whose presence the deceased's body was exhumed, (4) medical evidence about the condition of the dead body and (5) the extrajudicial confession of the appellant made before P. W. Muhammad Shafi. The learned Judge in a reasoned judgment disbelieved the evidence given by P. W. Milkhi, the approver in this case. He also discarded the extrajudicial confession made to P. W Muhammad Shafi and also rightly not relied upon other circumstantial evidence for coming to the con clusion that the offence under section 302, P. P. C. has not been established against the appellant. The learned Judge, however, after considering the evidence for the prosecution in this case convicted the appellant under section 201, P. P. C.

5. The only question, therefore, in this case is whether the conviction of the appellant under section 201, P. P. C. is justified and the necessary ingredients to bring the case of the appellant within the four corners of this provision of law are present in this case. The learned Sessions Judge's observations on this aspect of the case are as under :‑ " In my opinion, however, the charge under section 201, F p. C. stands fully proved against him. It is established by the evidence that on the information of the accused the police accompanied him to a spot where on his pointing out the dead body of the deceased along with his shirt P. 1 and shoes P. 2 was disinterred. The condition of the corpse evidently showed that the deceased had been murdered. It is also clear from the circumstances of the case that the body had been buried at a great distance from Maula Bakhshwala well in the limits of another district evidently with the intention of con cealing the fact that the neck had been completely severed from the body by violence It shall, therefore, be presumed that the accused knew or had reason to believe that the deceased had been murdered and that after the murder he concealed his dead body along with other articles of the deceased with a view to causing the evidence of the offence of disappear with the intention of screening the offender from legal consequences." The learned Judge, it will be observed, has presumed that the appellant after the murder concealed the dead body along with other articles of the deceased with a view to cause the evidence of the offence of murder to disappear with the intention of screening the offender from legal consequences. In my opinion, the circumstances established in this case are not such as to raise a presumption that the appellant was responsible for the concealment of the dead body in the place from where it is stated to have been recovered. The evidence about the recovery of the dead body at the instance of the appellant is not very reliable. P. W. 23 Sawan is a Lambardar and was already present at the police station when P. W. Muhammad Hussain produced the ruqqa sent to him by P. W. Muhammad Shafi. This witness is not on good terms with the family of lie appellant. He admitted in his statement that he appeared as a prosecution witness against the uncle of the appellant and that his uncle was acquitted in that case. He has also admitted that his land adjoins the land of the accused and they receive water from the same canal. P. W. 24 Muhammad Din Lambardar, the other witness to the recovery memo. is also not on good terms with the appellants. He had a trouble with the appellant in respect of the land allotted to him and, therefore, this witness also is not of a disinterested character. I am, therefore, not inclined to accept the statements of these witnesses that the accused admitted in their presence that he in the company of P. W. Milkhi approver buried the dead body of the deceased in the field of Raunaqi Teli. There were three other persons also in whose presence the dead body of the deceased was disinterred. P. W. Muhammad Hussain admittedly is the complainant in this case and his evidence cannot be relied upon. P. W. Mst. Nazir Begum is his wife and no reliance can be placed on her statement. The only other disinterested witness in this case would have been Muhammad Sharif Chowkidar who dug the place and took out the dead body. The prosecution has not produced this witness. On the evidence placed on the record there is no direct evidence to establish that the appellant was responsible for the concealment or the burial of the dead body in the land of Raunaqi Teli. The extrajudicial confession alleged to have been made to P. W. Muhammad Shafi and the approver's evidence have been totally disbelieved. The statements alleged to have been made to P. W. 23 and P. W. 24 are also not admissible in evidence under section 27, Evidence Act. The only circumstance left for con sideration is the fact that the body of the deceased was recovered and disinterred at the instance of the appellant. This circumstance in itself cannot lead to the conclusion that the appellant was responsible for the concealment of the dead body of the deceased or was responsible to cause the evidence of the commission of the offence to disappear with the intention of screening the offender. Admittedly the body of the deceased was recovered from the field of a third party and it cannot be said with certainty that the appellant was a party to the burial of the dead body of its concealment. It only shows that the appellant knew that the body of the deceased was buried in the field of Raunaqi Teli and he failed to give information about it to the police. Under these circumstances, one of the ingredients of section 201 that the appellant caused the evidence of the commission of the offence to disappear with the intention of sercening the offender, is missing and has not been proved against the appellant in the case under consideration. In view of this the case against the appellant under this provision of law has not been fully establish ed and his conviction under it cannot be maintained. I will therefore, accept this revision and set aside the conviction of the petitioner under section 201, P. P. C. The petitioner is con fined in jail. He is ordered to be released forthwith. K. B. A. Petition accepted.