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Criminal Appeal No. 256 of 1956, decided on 24th October 1957, from the order of Ata Ullah Qureshi, Sessions Judge, Mianwali dated the 3rd September 1956.
‑Recovery of dead body before approver's statement‑No corroboration of such statement‑Evidence Act (1 of 1872), S. 133.
The fact of recovery of dead body of a murdered person long before the approver's statement cannot be used in corroboration of such statement.
S. 27‑Recovery of dead body from accused's field at accused's pointing out, from a place 300 or 400 karams from village abadi‑Not enough for conviction of accused under S. 201, P. P. C., in circumstances of case.
25 Punjab Record 1881 ref.
Swarta and another v. Emperor A I R 1932 All. 71 ; Nawab Din v. Emperor A I R 1933 Lab. 516 ; Jiwan Singh v. Emperor A I R 1934 Lab. 23 (2) and Sher Muhammad v. Emperor A I R 1945 Lab. 27 distinguished.
‑Suspicion of guilt and innocence balanced Accused entaled to acquittal.
Masoom Shah for Appellant.
Abdul Wahab Khan for Respondent.
Date of hearing : 23rd October 1957.
.‑By his order dated the 3rd September 1956, Sessions Judge Mianwali convicted Ashiq Hussain of an offence under section 201, P. P. C and sentenced him to five years' rigorous imprisonment. Against that order an appeal has been preferred to this Court.
In fact Ashiq Hussain along with one Sahib Khan was committed to the Court of Session under section 302, P. P. C., for murdering one Sawan, but a charge under section 201, P. P. C., was added before his trial commenced in that Court.
The evidence which was found reliable could not sustain conviction on the charge of murder. Both the accused were therefore acquitted of that charge. Sahib Khan was also acquitted of the charge under section 201, P. P. C. The trial terminated only in the conviction of Ashiq Hussain under section 201, P. P. C.
The prosecution story in this case was that Sawan deceased was suspected of illicit intimacy with Mst. Miran who is the wife of Ashiq Hussain accused and sister's daughter of Sahib Khan. It has been stated that a few days before this occurrence Ashiq Hussain found Mst. Miran throwing bers from a ber tree to Sawan. When Ashiq Hussain arrived on the scene Sawan slipped away.
Mst. Bakhtan sister of Sawan deceased stated that about two or three days before the occurrence, i.e., on 22nd or 23rd of March 1956, at about night time one Sada Khan name and took Sawan out of the house. After that nothing was seen or heard of him till 26th of March 1956, when she came to know that he had been killed by Sahib Khan and Ashiq Hussain on account of his intrigue with Miran. A report to this effect was lodged with the police.
On the 27th of March 1956, Ashiq Hussain was arrested and he is said to have produced a dang (a big stick) with which Sawan was said to have been killed and led the police and two Lambardars to his field and pointed to a place in it where his dead body lay buried. On 29th March 1956, at the request of the police to a Magistrate the dead body of Sawan was exhumed in the presence of a Magistrate and a doctor from the place indicated by Ashiq Hussain.
Sada Khan became an approver on 18th April 1956. At the trial he stated that he along with. Ashiq Hussain and Sahib Khan took the deceased to the field of Ashiq Hussain. Sahib Khan and Ashiq Hussain killed him there and buried him in the ground. Ashiq Hussain denied the commission of the offence and also denied that he led the Police to the place from where Sawan's dead body was recovered.
The trial judge did not believe the story of Sawan's criminal intimacy with the wife of Ashiq Hussain. He also did not believe the approver's statement that Sawan was actually murdered by Sahib Khan and Ashiq Hussain. He further disbelieved the production by Ashiq Hussain of the dang with which the deceased was stated to have been killed. But as the dead body of Sawan was recovered from the field of Ashiq Hussain on his indication he accepted only this part of the prosecution version and convicted Ashiq Hussain of the offence under section 201, P. P. C. He acquitted both Sahib Khan and Ashiq Hussain of the charge of murder. Sahib Khan was also acquitted of the charge of concealing Sawan's dead body.
In this Court conviction of Ashiq Hussain under section 201, P. P. C. has been challenged. It was stated that the dead body had been discovered before Ashiq Hussain's arrest. Arguments were also advanced to show that conviction of Ashiq Hussain s under section 201, P.P.C., is not sustainable even on their evidence which has beer, accepted for this purpose. It has been urged that the entire evidence of the approver has been disbelieved by the trial judge and also by the assessors and if that evidence be eliminated the only evidence left by which the accused can be connected with the offence of concealing the dead body is the statement of the Sub‑Inspector and the two Lambardars who said that on 27th March 1956, Ashiq Hussain accused took there to the field and pointed out the piece from which the dead body was recovered of this be the only reliable evidence on record as it no doubt is, it requires to be seed whether that evidence alone is capable of sustaining a conviction under section 201, P. P. C.
The foundation of the offence under section 201, P. P. C.; lies in the fulfilment of the following three ingredients :‑
"(a) the knowledge of the accused that an offence has been committed.
"(b) the participation of the accused in causing evidence of the commission of that offence to disappear, and
(c) the intention of the accused to cause the disappearance of evidence in order to screen the offender from legal punishment." .
The only reliable evidence in this case is that the dead body of the deceased Sawan was recovered on the indication of the accused. That evidence satisfies the first requirement of section 201, P. P. C. There is no evidence except the approver's statement that Ashiq Hussain had a hand in the concealment of the dead body of Sawan. As the approver's statement has been discredited, no use can be made of it for this purpose. As the dead body had been recovered long before the approver's statement that recovery cannot be used A, in corroboration of approver's statement. In the absence of any other evidence showing Ashiq Hussain's participation in burying the dead body of Sawan we are left with only one piece of evidence against him and that piece lies in the indication given by him of the place where the dead body had been interned. From that piece we can deduce his knowledge of the commission of an offence of murder and knowledge of the place where the evidence has been concealed. It is next to be seen whether from the knowledge it is possible to infer that he had himself participated in burying the dead body and concealing the evidence. Accord ing to the view taken in a case 25 P R 1881 such knowledge alone is not capable of sustaining a conviction under section 201, P. P. C. In a few other cases Swarta and another v. Emperor (A I R 1932 All. 71), Nawab Din v. Emperor (A I R 1933 Lah. 516) and Jiwan Singh v. Emperor (A I R 1934 Lah. 23 (2)), convictions were upheld under section 201, P. P. C., but in all those 3 cases there was evidence of accused's active participation in concealing the evidence of the commission of the offence. In the Allahabad case the accused were found carrying the dead body in a big bundle. In the two Lahore cases the approver's evidence that he and the convicted accused jointly buried the dead body was accepted by the Court. The place from which the dead body was recovered was indicated by the accused himself. In those two cases the fact‑ were similar to this case, but the difference lay in this that in those cases the approver's evidence was accepted as true, while in this‑case it has been rejected.
On this subject reference to an important ruling as Sher Muhammad v. Emperor (A I R 1945 Lah. 27), would be of great benefit. In that case the accused led the investigating officer to a cave where the dead body was lying. It was held that the reasonable hypothesis from the discovery of the body from a cave in a jungle was that it was the accused alone who 'could have put the dead body there. The place where the body was deposited was remote from the village abadi and was most unfrequented and there was no room for the inference that the accused was either told by someone that the dead body was lying in the cave or he had seen some one placing it there. The only inference deducible from the facts of that case was that the accused had himself concealed the dead body in the cave.
In the case in hand the dead body was discovered from a field at a distance of 300 or 400 Karams from the village. This fact creates a ground for the inference that the accused saw some one else burying the dead body with his connivance and now he, either out of fear of revenge from him or out of respect for the confidence reposed in him, is not prepared to disclose the identity of the author of concealment. He has only agreed to disclose the place where the dead body lay buried.
There is sound counsel in A I R 1945 for extracting inferences from the discovery of the incriminating articles on the indication of the accused, and it deserves repetition here. It says "in my opinion, it is impossible to lay down any absolute rule on the point and the decision of the question will in each case depend on a variety of facts. As pointed out in 1 P R 1917 Cr. the conviction in a criminal case must rest upon direct or circumstantial .evidence and that conjectures cannot take the place of proof. Where the evi dence against an accused person is, as in the case postulated, only circumstantial, the evidence must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis than that of his guilt. This is another way of saying that where the guilt of an accused person is doubtful, he must be given the benefit of that doubt and acquitted. The rule is however fundamental that the doubt must be such as a reasonable mind entertains and that it must not be the doubt of a weak and vacillating mind hesitating or shirking to take a decision because there is an infinitestimal possibility of its being mistaken. If, therefore, the facts proved are incapable of explanation on any reasonable hypothesis other than that of the guilt of the accused person, the Court mint act on the hypothesis of guilt and cannot refuse to convict merely because certain other hypothesis which are not reasonable hypothesis are possible.
In an ordinary case of pointing out where an accused person leads the police to a place in the jungle and points out a spot from where stolen property or other incriminating article is dug out by the accused himself or by someone at his instance, the hypothesis that are possible are : (1) that the accused saw someone bury the article there ; (2) that some one told the accused that the article lay buried in that place and (3) that the accused himself alone or with others burred the article there. The third hypothesis is undoubtedly most natural and prominent in such a case and if the other two hypotheses are excluded or are riot reasonably possible, I do not see why the Court should not hold the third hypothesis proved. In determining which of these 3 possible hypothesise is more probable, and presents such degree of certainty that the Court like a reasonable man ought to act upon the assumption of its existence, the Court shall have to consider a variety of circumstances. If a relation of the accused who points out the place is connected with or suspected of the commission of the offence with which the article found is connected, the Court might hold .as reasonably possible the hypothesis that the accused might merely have seen the relation bury the article without himself being an active participant in the act. In considering the reasonableness or otherwise of this hypothesis the Court must have regard to the situation of the place where the article was buried, the accused's relationship with the person suspected and the explanation, if any, given by the accused of his knowledge of the place. If the person suspected is the son or wife or other relation of the accused, against whom out of natural love and affection he cannot be expected to speak, and the place where the property was buried is not far removed from the place where the accused resides or works and is visible from there, so that the accused might have seen that relation bury the article, without himself being privy to the act of concealment the Court may hold the hypothesis of the accused's innocence reasonably possible. But if the place is far away from the accused's residence or field, as for instance where it is in a lonely place in the jungle, or if near the accused's residence or field, is so situated that the accused could not have seen the relation bury it unless he himself was privy to the act of concealment or if the relation suspected of being connected with the offence is a distant relation so that when himself tried on a serious charge the accused could have no conceivable motive in putting his own life or freedom in jeopardy by attempting to protect his relation the Court may rule out this hypothesis as unreasonable if the accused himself does not suggest it."
If we advert to the fact of the case in hand, we find that the place from where the dead body was recovered is such that the hypothesis that the accused saw someone else burying it there cannot be excluded. In this case one Sahib Khan who is the maternal uncle of accused's wife was charged with the murder of the deceased. This relationship of Ashiq Hussain's co‑accused with him provides room for doubt that Sawan may have been buried in Ashiq Hussain's field by Sahib Khan either with or without his connivance. The circumstances of the case are not capable of yielding an inference which is quite incompatible with the innocence of the accused. On the other hand inferences quite compatible with his innocence are deducible from them.
Since the only evidence on record', which is worthy of credence, is the recovery of the dead body of Sawan on the indication of the accused and as that evidence leaves two other ingredients of the offence defined in section 201, P. P. C, un-established, conviction of the accused on that evidence is not maintainable. There are no doubt grave suspicions that he had a hand in the concealment of the dead body but there are also suspicions that he may be without any share in it. When suspicions are so balanced the accused is entitled to acquittal. For these reasons his appeal is accepted and he is acquitted of the charge of which he was convicted.
A.H. Appeal accepted.
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