P (PLP)

The prosecution case, however, was that subsequent to the incidents mentioned in the first information report the dead bodies of Keramat and Jamder Ali were taken to a nearby khal from the house of the appellant Idu Matbar, placed on a boat by all the ten appellants before us and surreptitiously disposed of. In the present appeal, we are concerned with this part of the case only which relates to the charge under section 201 of the, Pakistan Penal Code against the appellants. It may only be mentioned in passing that various charges were framed against these appellants and others in connection with the facts alleged by the prosecution which occurred before the removal of the dead bodies from the house of Idu Matbar. There were charges against all the accused persons under section 148, 149 read with 302, alternatively a charge under section 304 of the Pakistan Penal Code and a further charge relating to the later incident under section 201 of the Pakistan Penal Code. With regard to the other charges, the learned Sessions judge found that the land in question, where the occurrence took place, was in possession of the accused party ; that Karamat Ali and his party wanted to take forcible possession of it and that the accused party were protected by a right of private defence in so far as they inflicted a leza blow on Karamat Ali, as a result of which he fell down. The learned Sessions judge also observed that, as some witnesses stated that Keramat Ali was struck even after he had fallen on the ground, it was a case of exceeding the right of private defence with regard to some of the accused, but no such case was satisfactorily made out. He therefore held that none of the charges, except the charge under section 201, was made out against any accused persons and acquitted them of all the other charges. Now, with regard to the charge‑ under' section 201 of the Pakistan Penal Code with which we are concerned in the present appeal, the Committing ‑ Magistrate had framed the charge against them, after reviewing the evidence, under section 201 read with section 34 of the Pakistan Penal Code ; but at the Sessions stage the charges were altered, as it appears from the order sheet, at the instance of the Public Prosecutor by eliminating the application of section

34. The charge as framed against the present appellants on which they were tried was as follows :‑-- "That you, on or about the 12th August, 1948 corresponding to 27th day of Sravan, 1355 B. S. at Sadakpur char, P. S. Mehendiganj, knowing or having reason to believe that certain offence to wit, murder of Karamat Ali and Jamder Ali punishable with death has been committed, did cause certain evidence of the said offence to disappear to wit, took away the dead bodies of the said persons from the bari of Idu Matbar with the intention of screening the said offence from legal punishment and thereby committed an offence punishable under section 201 of the Pakistan Penal Code, and within my cognizance. So these appellants were definitely charged with having taken away the dead bodies from the bari of Idu Matbar. To prove this charge .the prosecution relied on the evidence of two witnesses, namely, prosepution witness No. 13 Jalaluddin Jamadar, who is a step‑brother of Mqkbul Jamadar, the first informant and P. W. No:

14. Jalaluddin Jamadar was not examined by the police. He stated in his evidence. "I saw the dead bodies being put in a boat in' a khal to the South of Idu's bari. I recognised the dead bodies of those of Karamat and Jamadar. I saw accused Idu, After, Situ, Golam Sobhan, Pachu, Ranju, Esahak, Sultan, Rakki, Hajari, Johan Ali, Gani, Ajahar, Nuru Rari all except Ranju and Esahak". and he then added that Hashem and Golam were also there. He then went on to say that the boat was plied by four and the others were standing with lejas and lathis on either side of the khal. He did not state in examination‑in‑chief who were the four who were plying the boat and who were the others who were standing on the side of the khal, which of them were standing on the same side of the khal from which the dead bodies were loaded on the boat and which of them were standing on the opposite side, but in cross‑examination he stated "when we went there we saw the dead bodies already put in the boat and the boat being plied by accused Hashem, After, Rakki and Golam Sobhan". Then he stated "I stated to the police that I saw the dead bodies being taken in a boat". So this witness claimed in the examination‑in-chief to have seen the dead bodies‑ being put‑ in :the boat but in cross‑examination he stated that the dead bodies were already in the boat which was being plied by four accused when he arrived. He also stated that he had told the Police that he saw the dead bodies being taken in about but it appears that he was not examined by the police during investigation. The next witness relied upon .by the prosecution is prosecution witness No. 14, Abdul Hashem Jamadar, who was the first cousin of the complainant Mokbul. He stated in his examination‑in‑chief that "As we went near the khal to the south of Idu's bari I saw 2 dead bodies being put in a boat and saw 25/30 men armed with lejas lathis and ramdaos there. I recognised those 2 dead bodies as those of Kerani and Jamader. Of those men I recognised Idu, Ranju, Situ, Sultan, After, Golam Sobhan, Golam Mostafa, Rakki, Hashem, Hazari, Johan Ali, Ajahar, Gani (All these accused except Ranju)". Then in cross‑examination he stated that 4 or 5 of the above named accused put the dead bodies into the boat by dragging by hand and leg and that he could not notice, who those were. He however stated that 4 or 5 men plied the boat but he could not recognise them exactly. Then, when he, was confronted with his statement made to the police, he stated: "I don't remember if I did not state to the Police that I saw the dead bodies being put in the boat". Then P. W. 16, the Officer‑in‑charge, who held the investigation in this case, stated in cross‑ examination, that Hasbem Jamadar did not state that he saw dead bodies being, put into or being taken in a boat in the ‑chat of accused Idu Matbar. With regard to the prosecution witness No. 13, there is the further admission by him in cross‑examination that' Idu Matbar had brought a case under section 447 and 188 of the Pakistan Penal Code against him, in connection with which he had made an application under section 526 of the Code of Criminal Procedure, which had been rejected. None of the other persons named by the first informant as persons who were left behind to keep a watch over the dead bodies against any possible removal were examined; although, besides these two, at least three were named and others were stated also to have been there. All the three assessors were of opinion that these appellants were not guilty of the charge under section 201 of the Pakistan Penal Code, but the learned Additional Sessions judge disagreed with them, and convicted and sentenced them, as stated above. On examining the evidence of these two witnesses, we find that while they stated that 4 or 5 of the accused were plying the boat, the others were stated to have been standing with lathis on either bank of the khal. No other overt act had been attributed to them. In the absence of a charge under section 34, it is difficult to see how the men who were standing on the khal would be made vicariously responsible for the persons who actually removed the dead bodies or were plying the boats in which the dead bodies had been removed. Even with regard to the 4 or 5, persons who were stated to be plying the boat, prosecution witness No. 14 could not say who they were. Prosecution witness No: 13 also did not name them in his examination‑in‑chief. It was only incidentally in cross‑examination that he stated four names. It may be stated here that the dead bodies of the two persons were never recovered. One human skeleton was found in a river on the 14th of August, two days after the occurrence, which the widow of Keramat Ali claimed to be the skeleton of her husband. No trace of Jamder Ali's body was found. In this state of evidence and the contradictions in the statements of the witnesses, we consider it unsafe to uphold the conviction of the appellants who are, to our mind, entitled to the benefit of the doubt. In the result, this appeal is allowed and the appellants are acquitted of the charge under section 201 of the Pakistan Penal Code and we direct that they be set at liberty forthwith. ELLIS. J.‑I agree. A. H. Appeal accepted.