The appellant was tried for committing the murder of his wife in the official quarter allotted to him at P. A. F. Base, Sargodha on 30th July, 1979. The trial Court, however. Acquitted him of the charge under section 302, but convicted him under section 201, P. P. C. And sentenced him to 7 years' R. I.
And a fine of Rs. 5,000 or in default to undergo further R. I. For one year. He has moved an appeal against the convic--tion and sentence. The complainant has moved a revision petition against the order of acquittal of the appellant under section 302, P. P. C. It was directed that the revision petition may be heard alongwith the appeal. This order will dispose of both the appeal and the revision petition.
2. The allegations against the appellant are that he was interested in marrying one girl by the name of Rukhsana, but four months before the present occurrence the elders of his family married him to Mst. Shahida Parveen deceased. The appellant brought his wife to live with him in the quarters and it is stated that in order to remove her from the way he committed her murder by strangulation at 8 p. m. On 30th July, 1979. Subsequently the same evening he contacted his friends Sajid Jamil P. W. 1 and Hayat P. W. 5, both working at the same P. A. F. Base and asked for their help to arrange a wagon to carry his wife who, according to him, had been ailing, to her village. A wagon was arranged and the appellant left for the village in Rawalpindi district in the company of Sajid Jameel P. W. And Mohammad Anwar Driver P. W. Carrying the deceased inside the wagon. When the village was only one mile away the wagon got bogged down because of the mud and the cot bad to be carried to the village. At that stage the appellant is said to have revealed to Sajid Jameel P. W. That his wife had actually died at Sargodha of cholera and he had kept the information from his friends. They reached the village at 3 a. m. The same night where Mst. Shahida Parveen was buried in the normal course. Sajid Jamil returned to the Base on 31st July, 1979 and on 1 August, 1979 he made a statement Exh. P. A. Before the Warrant Officer Shah Mohammad and on the basis of the same statement an F. I. R. Was recorded at the Police Station. 10 days after her death the body of Mst. Shahida Parveen was exhumed and the Medical Officer Gujjar Khan after examining the dead body gave the opinion that the death had been caused by strangulation. The appellant was thereafter prosecuted for an offence under section 302, P. P. C. Read with section 201, P. P. C.
3. The prosecution apart from Sajid Jamil P. W. Produced in evi--dence Mohammad Hayat P W. 5, Mohammad Anwar Driver P. W. 6 and Arshad P. W. 17, a neighbour of the appellant at the Base. Two witnesses were also cited for extra-judicial confession but they were declared hostile at the time of trial by the Public Prosecutor. Sajid Jamil, Mohammad Hayat and Mohammad Anwar Driver have testified to what happened in the wagon and culminating in the admission of the appellant that Mst. Shahida Parveen had died of cholera at Sargodha and the story that she was suffering from fits was a lie. Arshad P. W. 17 stated that on the night of occurrence he heard some strange noises from the house of the appellant suggesting that the deceased was being strangu--lated at that time.
4. It is obvious that nobody has seen the act of murder itself even though it cannot be denied that in view of the medical evidence a murder had taken place. It can also be seen that the appellant gave more than one stories regarding his wife. He first said that she was suffering from fits but subsequently told his companions that she had died of cholera. Certain noises were also heard in the neighbouring house resembling strangulation. All this evidence shows that a murder bad taken place but in order to connect the appellant much stronger evidence was necessary. Why did Arshad P. W. Not take any steps to investigate the strange noises from the neighbouring quarters.
Why did Sajid Jamil P. W. Keep to himself the unusual circumstances of Shahida Parveen's death.
He did not inform any one of the girls relatives or the appellant's relatives or even his own, but decided to inform only his superior at the P. A. F. Base, Sargodha three days after the occurrence.
There is no answer to these questions. It was, therefore, not safely possible to come to a convic-- tion that the appellant was guilty of murder.
5. The learned counsel for the appellant has argued that an offence under section 201, P. P. C. Also is not made out. He has advanced the theory that if a person is accused of an offence under section 302, P. P. C. And it is not proved so, then, the same person cannot be held guilty of an offence under section 201, P. P. C. He has referred to the case of Mohammad Ramzan v. The State (PLD 1961 Lah. 167), in order to substantiate this theory. I am afraid that the facts of the 1961 case were quite different. In that case the very offence of murder was not proved. The skeleton that was recovered was not proved to be that of the deceased. There can, however be no doubt that if there is no proof of an offence being committed there is no question of causing disappearance of evidence of com--mission of the offence. The facts of the present case are, however different.
There is no doubt that Mst. Shahida Parveen had been murdered. The appellant has not been found guilty of committing the murder for want of evidence but it does not mean that there is no evidence against the appellant of causing disappearance of evidence of the commission of an offence or screening the real offender. The conviction under section 201, P. P. C. Therefore, is lawful and there is no reason to interfere with the judgment. The appeal is, therefore, dismissed. The sentence is maintained except to the extent that the appellant detention in custody as an under- trial prisoner will be treated as sentence in the light of section 382-B of the Cr. P. C.
6. The result is that the both appeal and revision petition are dis--missed except for the calculation of sentence of the appellant for which purpose the period spent by him in detention will be counted towards his sentence.st