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Criminal, Appeal No. 26 of 1959, decided on 28th March 1960.

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 7th May 1959, in Criminal Appeal No. 81 of 1959).

(a) Criminal Procedure Code (V of 1898), Ss. 236 & 237 Charge under S. 201, P. P. C. that accused had disposed of murdered man's body-Disposal of body not proved-Conviction for disposing of clothes etc. of deceased, held, proper.

(b) Penal Code (XLV of 1860), S. 201-Disposal of murdered person's clothes which he was wearing shortly before but not at time of murder-Covered by S. 201-Such clothes material residue left after crime.

(c) Witness-Friend of deceased-Not disclosing to anyone for nearly 24 hours that -he had seen the murder-Not choosing to rescue deceased or show any concern for his fate-Evidence of witness not of "least value".

Aftab Hussain, Advocate Supreme Court, instructed by Bashir Ahmad, Attorney for Appellants.

Jamil Hussain Rizvi, Advocate-General West Pakistan, (Ghulam Mujadad, Advocate Supreme Court, with him), instructed by Ijaz Ali, Attorney for Respondent.

Date of hearing : 16th March 1960.

In this criminal appeal by special leave there are two appellants Muhammad Saqiq aged 18 and Sher Dil aged 22, who are brothers. Muhammad Sadiq's conviction is under section 302/34, P. P. C. for participation in the murder of one Hazrat Din- along with another accused, person named Ajun who was similarly convicted but has not appealed to this Court. The conviction of Sher Dil is under section 201, P. P. C. for causing disappearance of evidence of the commission of the murder of Hazrat Din, by throwing his clothes, namely, a coat, Exh, P. 10, sweater, Exh. P. 11, muffler, Exh. P. 12, a cap, Exh. 14, and a' pair of shoes, Exh. P. 14 into a disused well, from which they were recovered at his instance on the evening following the night of the murder. Taking the case of Sher Dil first, the evidence is to the effect that when interrogated by the Police, Sher Dil said he had thrown these things into the well and he undertook to produce them and did so. At the trial, Sher Dil was questioned as to whether he had effected the recovery, and as to whether he had made any statement immediately before. He denied that he had either made a statement or had produced the articles in question. Now, the charge under section 201 was against Sher Dil and certain other persons, not in respect of the articles mentioned above, but in respect of the disposal of the dead body of the said Hazrat Din, and the trial Court rejected the evidence which had been led in support of that charge. This was the evidence of two persons who professed to have seen Sher Dil and three other accused persons on the night of the occurrence carrying a sack in a certain direction.

The trial Court considered that it was improbable that these persons could have seen what they professed to have seen, and accordingly no conviction was possible on the charge of disposing of the dead body. However, under sections 236 and 237 of the Criminal Procedure Code, since a series of transactions was involved, and the evidence of the crime was not confined to the body alone, but must be thought to extend also to articles which were on the body either at the time of the murder or immediately before, it was open to the Court, upon Sher Dil's proved statement supported by the recovery, to convict him of the offence of causing disappearance of the aforesaid clothes and shoes, provided that they could be said to form part of the material residue left as a result of the commission of the crime.

The evidence of Sher Bahadur, P. W. 11, upon this point is directly relevant. He is one of five persons who on the night in question after taking tea at a hotel belonging to Muhammad Nawaz, went to the mandi of Muhammad Yaqub, another brother of the present appellants, some 50 karams away to listen to the radio. It was in this mandi that the crime was committed. The four other persons were, the deceased Hazrat Din, the accused persons Muhammad Sadiq and Ajun, and one Ayub, P. W. 9. Ayub left the party at about 9 p.m., Half an hour after that, Sher Bahadur also left. His evidence however is to the effect that shortly after he had gone out of the mandi, he heard Hazrat Din calling to him to stop and saying that he would accompany him. When he again looked inside the mandi, he saw Muhammad Sadiq striking the deceased with a knife. He did not wait to see anything more, but at once went home and never mentioned the incident to anyone until the following evening when the Police arrived and sent for him. The trial Court disbelieved the evidence of Sher Bahadur with regard to the attack by Muhammad Sadiq on Hazrat Din, but the judgment of the High Court does not treat of the evidence of Sher Bahadur on this point at all. But as to the presence of Sher Bahadur in the company of the other persons, there is corroboration provided by the statement of hotel keeper Muhammad Nawaz, and there is therefore no reason to disbelieve his statement that on the night in question Hazrat Din was wearing the coat, sweater, muffler, the cap and the shoes mentioned above. This he said in examination-in-chief, and in cross-examination, after saying that, when attacked Hazrat Din was not wearing the coat, muffler, or the sweater, in answer to a further question, Sher Bahadur made the following statement :---

"It is correct that after putting off his coat, sweater, muffler and cap the deceased lay down on a cot while the radio was working. Hazrat Din deceased had his cap on his head when he was stabbed by Sadiq'.

That statement is sufficient to establish that the clothes recovered at the instance of Sher Dil were those which the deceased had been wearing shortly before the attack on him, Which he had removed from his person before retiring for the night. In those circumstances, the disposal of these clothes was intimately, connected with the disposal of the body, and therefore with the commission of the crime of murder and an offence under section 201, P. P. C. must accordingly be held to have been established against Sher Dil. The sentence awarded is within the limit provided by law.

But as to the appellant Muhammad Sadiq, all the evidence to connect him directly with the murder of Hazrat Din is con tained in the statements of the aforesaid Sher Bahadur and one Muhammad ; a second cousin of Hazrat Din who was Chowkidar of the mandi. The Courts below have not been able to accept the fragmentary and unnatural statement of Sher Bahadur as to the attack by Sadiq on Hazrat Din. The circumstance that he did not choose to go to the help of his friend whom he found being attacked with a knife, that he did not disclose what he had seen to any person for nearly 24 hours, and that he showed no concern for the fate of Hazrat Din clearly militates against allowing the least value to his evidence. A similar circumstance affects the fuller evidence of the murder given by Muhammad. In many respects, on points of detail, Muhammad's statement was at variance with that of Sher Bahadur. But he too was obliged to agree that when he saw Sadiq and Ajun attacking the deceased, his own relation, he raised no alarm, nor did he go to the rescue of Hazrat Din. Instead, on being threatened by the culprits he entered his kotha and bolted the door from inside. When at the time of the morning prayer he awoke the body was not in the mandi, but the accused persons were seen by him washing away the blood from the place where Hazrat Din had been stabbed. Even on this occasion, he did nothing to attract other persons to the spot to see what the accused persons were doing. The High Court examined his evidence and came to the conclusion that it was not safe to accept that part of Muhammad's story which related to the actual attack on Hazrat Din. The learned Judges thought that while on the one hand it was possible that fear prevented him from divulging the matter, it was equally possible that his evidence was inspired by his direct relationship with the deceased. In so holding, the High Court reversed the finding of the trial Court as regards the credibility of Muhammad's evidence.

We agree with the High Court that no reliance whatsoever can be placed upon the statement of Muhammad as to the actual assault upon Hazrat Din. We agree with the trial Court that Sher Bahadur's evidence on the same point cannot be accepted. If that evidence be eliminated, there is nothing upon which the conviction of Sadiq can be based except that on the night in question, he was in the company of the deceased along with Ajun. Now, although the injuries of the deceased were about 50 in number, yet they were for the greater, part, stab wounds all of which appear to be capable of being caused with an ordinary knife. It is not inconceivable, but on the other hand it is quite possible that by one or two stabs in vital regions the victim might have been incapacitated by a single assailant from offering resistance so that the assailant, being actuated by extreme jealousy, could continue to deliver further blows as he pleased until his fury was abated. The case of the prosecution is that the young boy Sadiq was the object of the unnatural affection of the deceased Hazrat Din as well as of the accused Ajun. Extreme jealousy is frequently associated with that kind of love. The Courts below have accepted it as possible that Sadiq joined in this knife attack "in order to escape the scandal of his objectionable association with deceased". That is not an impossibility, and yet cannot be said to be highly probable, and therefore as a circumstance of corroboration, it cannot sustain any great degree of reliance. As for the fact that on the night in question; Sadiq was in the company of Ajun and Hazrat Din, that by itself is entirely insufficient to bear the inference that he must have been there when the fatal assault was made. For, although the mandi belongs to Sadiq's brother, yet they have a separate house where all the brothers live, and there is a clear possibility that Sadiq may have left the other two in the mandi and gone back to his own house to sleep for the night, and that the murder took place when he was not on the spot. Therefore, the circumstantial evidence as it remains after the direct evidence of Muhammad and Sher Bahadur is eliminated, is not sufficient to exclude the possibility of the innocence of Muhammad Sadiq, and in the circumstances, his conviction cannot be sustained.

For these reasons we allow the appeal of Muhammad Sadiq, and hereby acquit him. Sher Dil's appeal is dismissed.

A. H. Order accordingly.

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