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Criminal Appeal No. 494 of 1976, decided on 12th July 1977.

S. 302 read with S. 201‑Question whether a person found guilty of committing murder and causing disappearance of evidence of that murder, could be convicted on both counts‑‑Combination of convic tions, held, not permissible and conviction under S. 201, set aside, in circumstances.

Fateh Muhammad v. The State 1968 P Cr. L J 846 and Khuda Bakhsh a Muhammad Ramzan and another 1972 P Cr. L J 243 rel.

Appellant through Jail.

Bashir Ahmad Khan and Salim Akhtar for A.‑G. for the State.

Dates of hearing: 11th and 12th July 1977.

This judgment disposes of the following three Criminal Appeals, all received from jail : ‑

(1) Cr. Appeal No. 494/76, Piran Ditta v. State.

(2) Cr. Appeal No. 495/76, Mst. Nuran v. State.

(3) Cr. Appeal No. 496/76, Mst. Zaiban v. State.

The Addl tried all the three appellants. Sessions Judge, Multan jointly for offences under sections 302/34 and 201/34, P. P. C. They wt. all found guilty of these offences and for the former they sentenced to life imprisonment and a fine of Rs. 500 or in default, rigorous imprisonment for a farther period of six months. For the later offence on conviction they were each sentenced to three years rigorous imprisonment and a fine of Rs. 300. The sentences were ordered to run concurrently.

2. The prosecution case against the appellants was that Ghulam Farid, the husband of Mst. Nuran, disappeared from the house in the later part of November 1974. Lai Muhammad (P. W. 7), his son then aged about 13 years or so, enquired from his meter Mst. Nuran appellant about his whereabouts. He was told by her that he had gone to tae Rohi Region for purchasing the cattle for selling it on the occasion of Idd‑ul‑Azha any:. was to return soon. It was on the 20th December 1974 that when Lai Muhammad F. W. returned to his house he saw his wife Mst. Zaiban, about 8 years elder to him, standing at the front of tie door of the Kotha. Vo enquired from her about her mother and was told that she had gone out. He heard some noise coming from the Kotha and went in and found that his mother was very much there busy in removing the earth and there was a foul smell in the room. At first, Mst. Nuran, the mother, tried to explain that she had buried ornaments but ultimately Mst. Zainab as well as Piran Ditts appellants admitted that they has jointly strangulated the deceased Ghulam Farid, because he had been committing sexual intercourse with; Mst. Zaiban, his daughter‑in‑law, and rafter strangulating had buried him in

the Kotha. Lai Muhammad (P. W. 7) went and. contacted Rana Muhammad Ali (P. W. 5), an Advocate, and a neighbor of Lal Muhammad, who along with Malik Ikramul Haq, Colony Clerk in A. C Office, Mailsi came over to his residence and enquired from these persona and they admitted having com:ryitted the offence. It was Rana Muhammad Ali (P. W. 5) who ultimately lodged the first information report at Police Station Mailsi on 20th December 1974 a t 10‑15 p.m.

3. The investigation was conducted by Muhammad Ahmad Khan Sub-Inspector. He made various recoveries which are not of importance to the disposal of these appeals,

4. The post‑mortem of Ghulam Farid showed that it was a decomposed body and legature material in the form of a strong cord was found around his neck in two rounds and knot tied in front. The death, according to the doctor had taken place on account of asphyxia.

5. Before considering the plea of the appellants at various stages, it is necessary to disclose the relationship of the appellants with the de and the witnesses. Piran Ditta appellant is the brother of Mst, Zaiban appellant and the sister's son of Mst. Nauran appellant. Zaiban appellant was married to Lai Muhammad (P W. 7) and was the daughter in law of the deceased Ghulam Farid.

6. The plea of the appellants in the commitment Court was somewhat different. Piran Ditta appellant denied his participation in the occurrence and while admitting tuna Mst. Zaiban was his sister, denied her manage to Lai Muhammad P. W. and instead said that she was married to one Muhammad Bakhsh He explained the case against him on account of enmity Mst. Nuran, appellant also denied in the commitment Court the marriage of Mat. Zaiban with Lai Muhammad P. W. and having, in any manner, participated in the causing of the death of her husband Ghulam Farid. Mst. Zaiban appellant in the commitment Court while during her role if the occurrence, said that she had no relation with Lal Muhammad P. W. and instead was married to one Muhammad Bakhsh

7. At the trial, however, before the Addl. Sessions judge, they admitted that Lai Muhammad P. W. was in, fact married to Mst. Zaiban appellant. They denied having committed the offence. Mst. Zaiban appellant and her brother made somewhat similar statement with regard to the occurrence. Piran Ditto appellant stated that he visited the houses of his sister and maternal aunt at about 9 p.m., and found Mst. Zaiban appellant lying naked and Ghulam Farid deceased committing rape. lie then explained "I lest m that y temper and tried to catch hold of Ghulam Farid, who made an attempt to assault me with a stick. Mst. Zaiban slipped away, along with her Shalwar and I picked up a rope, lying nearby, and in sudden and grave provocation, I sung it around the nick of Ghulam Farid, and pulled him and in the process he was strangulated and he died." He admitted having buried the dead body of Ghulam Farid in the interior. Kist. Nuran appellant denied her participation in the crime and stated that she had been implicated on account of enmity and it was a false ease. Mst. Zaiban appellant admitted the factual part of the case as stated by Piran Ditta appellant

8. In the memo of appeals received from Jail, Piran Dicta appellant teas stuck to the statement made before the Addl. Sessions Judge and has pleaded sudden and grave provocation. Mst. Nuran appellant pleaded knowledge of the occurrence all right but Lee absence from the house when it took place. Mst. Zaiban appellant has also stuck to her statement made before the Addl. Sessions Judge.

9. Before adverting to the factual part of the case, a legal question has to be examined and it is whether conviction under section 201/34, P. P. C. can be combined with section 302/34. P. P. C. in respect of the same offenders and the same offence of murder. It the person found guilty of committing, murder is hims2if the person who is held guilty of causing the disappearance of the evidences of that murder then such combination of convictions it impermissible for it would be an intrusion on the universally accepted principle that no person accused of an offence can be plaid in circumstance where he must preserve all the traces of evidence incriminating himself Such a conclusion is supported from a consistent array of precedents like Fateh Muhammad v. The State (1968 P Cr. L J 846) and Khuda Bakhsh v. Muhammad Ramzan and another (1972 P Cr. L J 243).

10. As regards the factual part of the case, the statement made by Lal Muhammad (P. W. 7) against his own mother and his own wife, remains outstanding and clear from any material inconsistency or contradiction. There is no apparent reason why he should so implicate them. The back ground given out by him also explains the situation. He was of a tender age when married to Mst. Zaiban appellant, far elder to him. He even said that his marriage remained unconsummated. From such a situation a relationship developed between the deceased and the daughter‑in‑law which would appear also from the statement and the defence of Mst. Zaiban appellant. This could not but be a cause of embarra4sment and notoriety for Piran Ditta and to Mst. Nuran, wife of the deceased. This matter had attained notoriety in the neighbourhood is also borne out from the statement of Lai Mubammad (P. W. 7).

11. There is then the extra‑judicial confession made by the three appellants before, among others, Rana Muhammad Ali (P. W. 5) and Malik Ikram-ul-Haq (P. W. 6). The confession covers the entire range of motive, the commission of the offence and the burial of the dead body. There may be technical reasons and theoretical ones for objecting to such a confession, but in substance, there does not appear to be anyone so material or tangible as to affect the case of the prosecution. Rana Muhammad Ali (P. W. 5) has stated about what was said or disclosed by each of the appellants In respect of this event in the presence of Malik Ikram-ul-Haq (P. W. 6). There was after so many days, no occasion for the appellants being roped into making a statement of the nature which they did. By that time the police had not appeared on the scene and without their interference or knowledge there was no question of any one promising any reward or concession to any of these appellants.

12. Finally, it is the medical evidence which is the important element. The cord chosen for strangulating the deceased was a fairly strong one. It had been put round the neck twice. There was a knot tied to it in front. I his definitely repudiates the plea taken up by Piran Ditta appellant that it was a stray cord picked up and thrown at the deceased while warding off his stick blow which resulted ultimately in strangulating him. The process of so tying the rape and then the process of strangulation, will ordinarily require co‑ordinated effort on the part of more than one person. There is normally no reason why Mst. Nuran and Mst. Zaiban appellants should not be in the house. Lal Muhammad (P. W. 7) the son of the deceased, has reported on their conduct after the occurrence and consistently for a number of days, even after the recovery of the dead body which would further show that they were also a party to the commission of the crime and it had bean committed not in a mood of sudden provocation but with full knowledge of the relationship between Mst. Zaiban appellant and the deceased Ghulam Farid and the notoriety of it.

13. I consider that the conviction of the appellants under section 302/34, P. P. C. is quite proper. It is maintained as also the sentence awarded therefor. Their conviction and sentence under section 201/34, P. P. C. is, however, set aside. The appellants to be informed about the result of their appeals.

Appeals dismissed.

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