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Criminal Appeal No. 247 of 1948, decided on 18th November 1949, against the order of conviction dated 22nd September, 1948, under section 364, Indian Penal Code sentencing the appellant to suffer rigorous imprisonment for 4 years and 2 months, by Session Judge, Dacca, with the aid of Jury.

S. 364‑Person abducted in fact murdered‑Abductor whether can be charged under section Proper charge.

Where the case for the prosecution is that the person abduct ed was in fact murdered, there can be no scope for a charge under section 364 of the Code and the abductor should be charged either with murder pure and simple or at least with abetment of murder.

A I R 1937 Cal. 578; 71 C L J 597; I L R 1944 Cal. 280, relied on.

M. H. Khondkar, for Appellant.

S, Afzal, Deputy Legal Remembrancer, for Crown.

This is an appeal by one Mazaharul Haque who was convicted under section 364 of the Pakistan Penal Code and sentenced to rigorous imprisonment, for four years and taco months by Mr. F. Karim, Assistant Sessions Judge of Dacca, under his order of the 22nd September, 1948.

The material facts are that the appellant Mazaharul Haque and Seraj‑ul‑Haque alas Kala Chand were two neighbours and used to read together in Class VIII of the Sideswari H. E. School of Munshiganj Police Station. They used to live in village called Siloi, about 12 miles away from the Police Station. They were on intimate terns, used to exchange visits and often used to stay in each other's house. They had a neighbour Abdul who went abroad on military service leaving behind a young wife aged 16 or 17 years. This wife was said to be very beautiful Mazahar‑ul‑Haque and Kala Chand used to read the letters that her husband sent her from active service and in this way they became very friendly with her When Abdul Mirda came back from service, according to the prosecution story, lie guessed what has been happening in his absence, made common cause with the appellant Mazahar‑ul‑Haque and with him hitched up a plot to kill Kala Chand because of the intimacy lie suspected between him and his wife. In pursuance of this plan, on the 25th May 1947 the appellant went to the house of Kala Chand and called him out on the pretext that they would read together in his house. Kala Chand went out and never came back again. When lie did not return, his father and other relations began to search for him. On Monday, the 26th May, 1947 some blood was found in a Tilkhet near the river Padaa and there were marks of struggle in the field itself. It was on Wednesday, the 28th May 1947 that the severed head of Kalachand was discovered by one Anwar Ali Sarkar It ‑was identified as his head by no fewer than five prosecution witnesses. Information was then lodged with the Police, an inquest was held on the 31st May 1947 by which time the "head" had come to be referred to as the skull and on Sunday the 1st of June 1947 exactly a week after Kala Chand had been missing, the Medical Officer had a post mortem report on the skull and pronounced that no opinion could be given as to the cause of death.

On these facts the appellants were placed on trial on a charge under section 364 of the Pakistan Penal Code, for that on the 25th May 1947 at Shiloi, Police Station Munshiganj they abducted Seraj‑ud‑Din alias Kala Chand from his house in order that the said Kala Chand might be murdered or might be so disposed of as to be put in danger of being murdered.

It has been held by Courts in a series of decisions of which we may refer to the decisions of Cunliffe and Henderson, JJ. (Alimjan Btbi v. Emperor) reported in A I R 1937 Cal, page 578 and followed in the decision of Bartley and Sen JJ. (Upendra Nath Gosh v. Emperor) reported in 71 C L J page 597 and Lodge and Roxburgh JJ. (Ijjatulla Akanda v. Emperor), reported in I. L. R. 1944 Cal. 280 that where the case for the prosecution is that the person abducted was in fact murdered, there can be no scope for a charge under section 364 of the Code and the abductor should be charged either with murder pure and simple or at least with abetment of murder.

The reported cases all apply to the present case and in our opinion the appellant must be placed on trial on a charge under section 302/109 for abetting the murder of Kala Chand.

Mr. Khandakar who has appeared for the appellant asked us on the facts of the case not to place him in jeopardy once again. The material facts are that on the prosecution case the deceased Kala Chand left his house on the evening of the 25th May 1947, at the invitation of the appellant. He never returned home again and his head, which had been chopped off from his body, was identified as his head by Anwar Ali on the 28th May, 1947 Subsequently this sane head was identified by four other persons as being the head of the missing youth, and the evidence of the Medical Officer is that provided no animal had disfigured the head, the head might be identifiable within. 3 or 4 days of its being severed from the body. In these circumstances we cannot but hold that there is a prima facie case which the appellant should be called upon to meet on a charge under section 302/109.

In the result then, the appeal is allowed and the conviction of the petitioner under section 364 of the Code and the sentence imposed on him thereunder are set aside and we direct that the appellant shall be re‑tried on a charge under section 302/109 of the Pakistan Penal Code by the learned Sessions Judge of Dacca himself.

The prayer for bail is refused.

A.H. Retrial Ordered.

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