SALEEM MAZHAR, J.--Izharul Haq appellant, a young man of 24 years, was tried by the learned Additional Sessions Judge, Sahiwal, for the murder of one Mst. Zainab, who was a widow and mother of 5/6 children, allegedly committed by him on 14-6-1967 in Gadda Khana locality in Okara Town in the house of one FC Rana Muhammad All, who at the relevant time was posted at Depalpur. Having been found guilty, he was awarded the sentence of death for which the case has also been referred to us under section 374, Cr. P. C. He has appealed against his conviction and sentence. By this judgment we will dispose of the appeal and the murder reference.
2. It may be mentioned at the outset that there is no direct evidence of murder and the prosecution has relied upon circumstantial evidence. According to the report (Exh. P. A.) lodged by Tassadduq Hussain (P. W. 2), a resident of Gadda Khana locality, on 14-6-1967, at 2 p.m. At Police Post No. 2, Okara, about 40 karams tawny from the spot, he (Tasadduq Husain) was drinking water at the shop of one Walayat, a betel-leaf vendor, when he heard a commotion in the adjoining lane that fire had broken out. He rushed towards the spot and saw that flames were rising high from inside the house of Rana Muhammad Ali. In the meantime, Ehsan Ali (P. W. 3) and Hafiz Fateh Muhammad (P. W. 4), a Member of the Union Committee, also arrived there besides several other persons.
Finding the door chained from inside, they knocked at the door. Izhar Ahmad Qureshi (Izharul Raq appellant) described as younger brother of Mr. Qamar Qureshi, Manager of the United Bank, Okara, unchained the door and came out and said that he had lit oven in order to bake breads as he had received guests. Since the flames were rising high and also gave an offensive smell they felt suspicious and told Izhar that he was making a miss-statement as flames of oven could not rise so high. So they insisted on going to the spot to which the appellant took no exception. All of them went inside the house and saw that in one corner of the courtyard a human body was burning in a heap of firewood from which flames were rising. In the meantime the appellant seeing the people pre-occupied in trying to extinguish the fire quietly slipped sway. When the fire was extinguished, they saw some burnt parts of a human body, burnt pieces of white burqa, burnt pieces of shirt of flowered check and blood-stained ladies pump-shoes. On going inside the room they found blood-stained cot as also blood on the ground. Towards the conclusion of Exh. P.A., Tasadduq Hussain, complainant, suspected that the appellant having murdered some woman had tried to burn the dead body.
3. The report was recorded by M. H. C. Nazir Ahmad (P. W. 13), Police Post No S-2, Okara at 2 p.m. And sent the same to Police Station City, Okara, for the formal registration of the case where F. I. R. (Exh.
P. A. 1 was drawn up by. Mahmood Ahmad, A.S.I. (P. W. 14). A copy of the F. I. R. Was sent by Mahmood Ahmad, A.S.I. To Abdul Karim A.S.I. (P. W. 15), who was busy in connection with the investigation of another case in the town. The latter reached the spot and found Tassadduq Hussain, Fateh Muhammad, Ehsan Ali and Riaz Ahmad, P. Ws. Present there in addition to several other persons. Although the fire had been brought under control yet some pieces of wood were still kindling. He collected the pieces of dead body and prepared the inquest report (Exh. P. Q.) and also injury statement (Exh. P. O.). It may be mentioned in this context that the head was found to be lying apart as indicated in the injury statement. He took into possession burnt pieces of burqa (P. 1) and burnt pieces of shirt (P. 2) vide memo. Exh. P. C. He also recovered tin (P. 5), containing kerosene oil, burnt coal (P. 6) and burnt pieces of wood (P. 7/1-16) vide memo. Exh. P. G. Going inside the room he took into possession blood-stained cot (P. 12) vide memo. Exh. P. D. Underneath it he found an aluminium plate (P. 4), stained with blood and secured the same vide memo. Exh. P.
E. Some blood-stained earth was also collected from underneath the cot and secured vide memo.
Exh. P. B. Blood-stained pair of ladies shoes (P. 3/1-2) was secured by memo. Exh. P. F. A rubber chappal (P. 8/1-2) was also taken into possession vide memo. Exh. P. H. The burnt pieces of the human body were sent by him to the mortuary for post-mortem examination.
According to Abdul Karim, A.S.I., the same day, at about 5 p.m., Bashir Ahmad (P. W. 6), a son-in-law and nephew of the deceased, her daughter, Mst. Rani (P. W. 7) and her sister Mst. Saidan, reached the place of occurrence and identified the recovered pieces of burnt burqa, burnt pieces of shirt and also identified the deceased from her burnt pieces of burqa, shirt and the ladies shoes. It may be mentioned in this context that according to Bashir Ahmad and Mst. Rani, Rana Muhammad Ali, in whose house the deceased had been killed and tried to burn, had visited their place at well Maleywala, in village Akbar, in Police Station Gogera, and brought them to the spot. On 15.6-1967, Mst. Rani P. W. Produced before the A.S.I a photograph of her deceased mother (P. 11), which was taken into possession vide memo: Exh. P. M. On 17-6-1967. Muhammad Afzal (P. W. 12) son of Rana Muhammad Ali, produced before the A.S.I. Lock (P. 9) and key (P. 10) which were taken into possession vide memo. Exh. P. K. It may be mentioned that the appellant who was solitary accused mentioned in the initial report and a resident of Depalpur absconded in the first instance. It was not till 24-11-1967 that the appellant voluntarily appeared before the Deputy Magistrate at Sahiwal and presented an application (Exh. D. C.) dated 24-11-1967, purporting to say that having got offended with his parents he had left his house early in May 1967 and went to Sind. It was only a few days earlier that he received information about his false implication in a case of murder and accordingly he had voluntarily appeared before the Court. A prayer was made in that petition that he may be sent to judicial lock-up and got identified by the witnesses. It may be observed In this context that subsequently at the time of his examination under section 342, Cr. P. C. He elaborated this position saying that having failed in his B.A. Examination and admonished by his family members he left for Karachi in search of a job and happened to meet one Shaukat Nawaz, a landlord of Gote Shaukat Nawaz in Sind, as a fellow traveller, and told him the purpose of his journey, who offered a service and he started working with him. Shaukat Nawaz received letter (Exh.
D. H.), purporting to have been written by one Masud Akhtar, informing him about his (appellant's) implication in a false case of murder he readily appeared. It may also be mentioned in this context that none of the witnesses was able to identify him during the two identification parades held on 4- 12-1967 and 15-12-1967. The record of these proceedings (Exhs.'DW 1/A, DW 1/B, DW 2/C and DW 2/D) existing at pages 38 to 42 of the record, were relied by the appellant in defence. To complete the narrative, it may be added that as a result of the failure of the P. Ws. Deliberately or otherwise to identify the appellant, the police moved that the case be referred to the Tribunal under the Criminal Law Amendment Act, as is clearly indicated in Exh. D. B., in particular the S. D. M's note dated 27-3-1968. This, however, does not appear to have find favour with the authorities concerned.
4. The post-mortem examination was conducted by Dr. Muhammad Asghar. At 9 a.m., on the next day, Le. 15-6-1967, who vide his report (Exh. P. N.) opined that it was unidentifiable dead body of a female which was completely burnt. The skull was separated from the trunk. The skin was charred and ribs of the right side were burnt. The right lung was exposed and burnt. The left leg was separated above the knee-joint. In cross-examination the doctor admitted that at the time of the post-mortem examination two persons, Bashir Ahmad P. W. And Mst. Saidan identified the dead body and that he mentioned the age of the basis of the inquest report (Exh. P. Q.), which was received by him along with the dead body. He further stated that the skull was separated front cervical vertebra and upper end of larynx was burnt and it appeared as if it was cut from the skull by a sharp-edged weapon. The stomach was congested and contained six ounces of fluid with semi-digested food. Vaginal awabs were takers which were found to be stained with semen vide Chemical Examiner's report Exh. P. U. Death in the opinion of the doctor was caused by strangulation and then the throat was cut and body was burnt.
5. We have already referred at the outset to the presence of Tassadduq Hussain, complainant., Ehsan Ali and Fateh Muhammad, the two eye-witnesses mentioned in the F I. R. Having been attracted to the spot. In addition to this the police was able to collect some incriminating evidence.
Kale Khan (P. W. 10), who ran a fuel wood depot at some distance from the spot stated that on the day of occurrence at about 8 a.m. Lai Masih (P. W. 9) came to his depot accompanied by a young man. They purchased three maunds of fuel wood which Lai Masih loaded on his rehri. Although in his statement before the C. M. This witness had specifically named Izharul Haq who had purchased the fuel wood yet he resiled from that statement which was transferred to the Sessions File under section 288, Cr. P. C. After proper confrontation. Lai Masih (P, W. 9) claimed to have transported the fuel wood on a rehri drawn by a donkey. Although in his statement before the C. M. He claimed to have entered the house and saw a woman sitting inside the courtyard yet he also went back on that statement which likewise was transferred to the Sessions File under section 288, Cr. P. C. After proper confrontation. Another piece of evidence present together was one available in the testimony of Barkat (P. W. 11), a Water-Carrier, who claimed to have visited the house of Muhammad Ali, the scene of occurrence, at about 7 a.m. The same morning, and took a goat's skin full of water at the instance of a young man and a middle-aged woman sitting in a chair. Having been shown the photograph (P. 11), he stated that it was that of the same woman seen by him. This witness pointed out towards the appellant as the person at whose instance he had carried the water. Although he claimed to have identified the appellant during the identifica--tion test, yet this was factually incorrect and was falsified by the proceedings of identification parade placed on the record in defence.
6. Muhammad Afzal son of Muhammad Ali, the owner of the house in question, appeared as P. W. 12 only the trial, after an indication was given by the P. P. During the inquiry to produce him. He claimed to be a college fellow of the appellant in the Municipal Degree College, Okara in 1955-66 and stated that the appellant frequently visited him at his house. He, however, added that on the day of occurrence he had gone to Kasur and that he had locked the house with Lock (P. 9) and Key (P. 10) and that the key in question was with him. On 16-6-1967, on his return from Kasur to Depalpur he learnt about the occurrence and came to Okara on 17-6-1967. Surprisingly enough although the relevant recovery memo. (Exh. PK), refers to the production of broken lock (P. 9) and key (P. 10) at the hand of this witness and this witness signed the recovery memo., yet he denied having produced the lock and key which otherwise was found to be in perfect order by the Court. At the time of his cross-examination during the trial he claimed to have already taken his L.L.B.
Examination. He denied the suggestion that he along with Riaz Ahmad (P. W. 5), who though not mentioned as an eye-witness yet was examined as such, having murdered the deceased and burnt her, falsely implicated the appellant in order to save their skin. He also denied the suggestion that the story of his visit to Kasur was a mere fabrication so that in his absence his father may be able to help him, in which he allegedly, succeeded in collusion with the local police.
Thus in the ultimate analysis, in the absence of any ocular, evidence of murder, the prosecution could fall back upon its. Evidence. The prosecution produced three sets of witnesses. The first consisted of the testimony of Tasadduq Hussain, Ahsan Ali, Fateh Muhammad and Riaz Ahmad, who claimed to have been attracted to the spot on seeing the flames rising high from the house of Muhammad Ali and having met the appellant, who allegedly unchained the door of the house on, receiving knocking and later on slipped away. The second set consisted of real relations of the deceased, namely, Bashir Muhammad, nephew and son-in-law, her two daughters. Mst. Rani and Mst. Mansab who all are painted in darkish colour as a woman of immoral character living more or less on, prostitution in whom Izharul Haq appellant was interested. The third set of witnesses, namely, Lal Masih, who carried the fuel --wood at the instance of the appellant to the house of Muhammad Ali and Kale Khan, who sold the fuel wood, and Barkat, Water-carrier, who took water at his instance early same morning. According to their statements before the C. M. They saw a middle-aged woman present inside the house.
7. We have already referred to the position taken up by the appellant at the trial. Despite the fact that none of the witnesses was able to identify the appellant during the two identification tests and almost all except Muhammad Afzal and. Barkat resiled from the statements made before the C.M., wherein they had otherwise tried to support the prosecution case, the learned trial Judge recorded a verdict of guilty against the appellant giving rise to the present appeal. It may be mentioned in this context that the learned trial Judge came to the conclusion that all the witnesses have been successfully tackled-- by the father of the appellant who was a doctor and an influential person in Okara so much so that even the near relations of the deceased had deliberately tried to create confusion. As to the identification of the dead body by producing yet another photograph (Exh. D.
1), different from P. 11, produced by Mst. Rani in the course of investigation.
8. In his elaborate argument addressed before us by Mr. Saleem, learned counsel contended- Firstly, that in the absence of direct ocular evidence the time: and circumstances of the murder remained undetermined, Secondly, that the identity of the appellant as the person having unchained the door and then slipped away equally --remained doubtful, Thirdly, that even if it may be deemed to have been established, the absence of any blood-stains on his clothes or the recovery of sharp-edged weapon, exculpate the appellant and Lastly, that even the evidence of having attempted disappearance of the dead body in terms of section 201, P. P. C. Did not stand established against him (the appellant) for which, in any case, he could not be convicted because of the failure to frame any such charge against him, besides the illegality of such course, to view of the provisions contained in sections 236 to 238, Cr. P. C., which did not justify the recording of conviction of an offence under section 201/511, P. P. C., the trial having been originally held on a charge of murder.
9. Before dealing with the contentions raised by the learned counsel for the appellant, we would like to observe at the outset that having gone through the record we cannot avoid the Impression that the P. Ws. Were successfully tackled by the relations of the appellant. Although on the face of it the contention raised on behalf of the defence that if actually seen at the relevant time the appellant should have been clearly identified by at least some of the P. Ws. During the two identification tests appears to be forceful yet it appears to have been rightly repelled by the learned trial Judge in the background and circumstances of the case. The explanation offered by him in this regard as also adopted by the learned counsel for the State before us was that in case the complainant or the other P. Ws. Were in some manner doubtful regarding the correct identity of the appellant, his name should not have been specifically mentioned in the initial report promptly lodged in the police post. It was further contended that the initial report does not confine itself to a mere reference to the presence of the appellant but it also speaks of having actually unchained tie door on receipt of a knocking, having offered a false pretext in explanation of the rising of the flames and then having quietly slipped away. We are inclined to think that these details have a ring of truth and have been correctly incorporated in the initial report and the police statement before any extraneous influence could be brought to bear upon it. The view taken by the learned trial Judge was that the failure of the P. Ws. To identify the appellant during the two identification tests was deliberate followed by an equal calculated move to identify him before the C. M. In order to avoid the possibility of a reference of the case to trial by a Jirga, which could be done at any stage before the charge was framed. Having once safeguarded against such an eventuality the witnesses could resile from their previous statements with impunity as they actually did. In fact, a perusal of their statements and the manner in which they have deposed to, except the smallest suggestions made to them by the defence, shows that they were entirely in their hands and readily prepared to play to their tune. In the circumstances, we have every reas9n to believe that the original version of Tasadduq Hussain (P. W. 2) supported by Ehsan All (P. W. 3) and Fateh Muhammad (P. W. 4), in their statements before the C. M., gave the correct position and it was none also than the appellant who unchained the door as the solitary person Inside the house when the dead body was burning and the flames were rising high. Having found the people engaged in extinguishing the fire he quietly succeeded in slipping away un--noticed.
10. At the same time we would also like to observe that the testimony of the other witnesses, namely, Barkat and Lal Masih, who claimed to have visited the house early the same morning on one pretext or the other, such as for bringing water and carrying fuel wood etc. Despite their being self-condemned as having gone back on their statements, does not inspire confidence, firstly, for the reason that they were not examined by the police on the same day, secondly, there is nothing to indicate as to how was it possible for the police to trace them out, and thirdly, they stated purely on the basis of memory, which could not be relied upon. In fact the Courts are not unfamiliar with such type of patch-work through co-operation of witnesses of this kind which it is always easy to procure. Accordingly we rule out this part of the prosecution version. Another factor which lends further support to this failure is the alleged time of their visit when they claim to have last seen the deceased between 7/8 a.m. The contents of the stomach clearly indicated that she had taken her meal before a couple of hours before she met with her death. Thus she could have either taken her last meals between 8/9 a.m., or had been done to death sometimes at 11 p.m. After she had taken her evening meal. In the absence of any positive evidence that the appellant or somebody else should have been keen to kill this woman, we are inclined to think that she was brought to this house for immoral purposes. As such the person interested would not have chosen the day time and would rather have preferred to bring her unobserved under the cover of darkness.
Notwithstanding, therefore, that the stomach contents would fit in both with the breakfast as also the evening meal, we are inclined to think that she was brought to the house in the previous evening and met her death some time during the night. Further support is lent to this view by the inquest report (Exh. P. Q.) as also supported by Mst. Rani P. W. Accord--ing to which the appellant came to their well Maleywala and took her mother on the pretext that her younger sister Mansab had met with an accident. According to the inquest report the appellant had left with the deceased at about 7/8 p.m. In the previous evening.
The third relevant point to be mentioned in this regard is that we are not convinced with the evidence given by the doctor on the basis of burnt and dismembered parts of an unidentified dead body of which the head was separated from the trunk that death bad occurred as a result of strangulation. On the other band we would rightly agree that a sharp-edged weapon had been used whereby the throat had been cut as clearly indicated by the recovery of blood-stained cot, blood-stained earth and otherblood-stained articles.
We are thus clearly of the view that the deceased had been done to death at about midnight or slightly earlier when her 1972 throat was slaughtered and not by strangulation. The positive report (Exh. P. U.) of the Chemical Examiner in respect of e vaginal swabs taken would also lend support to the view that she had been subjected to sexual intercourse and may be by use of force. We have already observed that we are not at all impressed by the motive alleged by the prosecution that the appellant having developed illicit intimacy was keen to marry her and that her refusal to accede to his request might have insisted him to kill her. In fact there is ample evidence to show that nobody would have taken keen interest to marry a woman of middle age having five six children and the interest of the appellant, if at all, should have been confined to carrying on promiscuous relations with her.
11. Although there are some indications, despite inconsistent evidence on the record, that it was the appellant who had brought the deceased on the previous evening from Maleywala well, yet this could not incriminate him to the extent of the actual commission of the murder. If, for instances, he was the person who had killed the deceased inside the room, as indicated by the recovery of the cot, the slaughtering of the neck and in fact complete severance would have resulted in spurting out blood leaving at least some stains of which no reference was made by any of the P. Ws. Again if he was the only person present, he could either have lifted the dead body to the place where it was found burnt at point No. 2, shown in Exh. P. L., it was but natural that his clothes might have been stained with blood. If in the alternative the dead body was dragged, there should have been trail of blood. No such evidence is available on the record in this regard. Yet another significant fact is the venue of the occurrence which does not belong to the appellant or his father, but was the house of the father of his friend Afzal, if the testimony of the latter is to be believed. There could thus be two alternatives, firstly, either the appellant and Afzal had together managed to procure the woman for the night and something transpired leading to her death when Afzal slipped away, informing his father, Rana Muhammad Ali who according to the P. Ws. Reached the spot soon after the occurrence and brought Bashir, Mst. Rani and Mst. Mansab to the spat to identify the dead body, or, alternatively, he had having himself gone to Kasur, as he would have us believe, handed over the key of the house to the appellant to enable him to enjoy for the night. However, the production of the broken lock and key by him before the police, which were taken into possession vide memo.
Exh. P. K., it does not stand to reason as to why the same were produced on the 17th of June 1967.
The Impression sought to be created by the prosecution on the basis of memo. Exh. P. K. Was that having learnt about the absence of Afzal from the house, the appellant broke open lock which on the contrary was found to be in perfect order by the trial Court giving a complete lie to this part of the prosecution version. From this we cannot avoid the impression that the appellant could not be directly held responsible for the murder of the deceased who in all probability was killed by more than one persons. For reasons recorded earlier, we are convinced that she was the solitary person who was found inside the room, unchained the door on receipt of the knock and slipped away. His abscondence is not satisfactorily explained by him despite a crude attempt to do so. Thus having regard to the circumstances of the case and the evidence placed on the record, v e are of the view that it was he and none else who was responsible for having tried to burn the dead body after the deceased had already been killed and as such was guilty of an attempt to cause disappearance of an offence punishable under section 201/511, P. P. C. It was argued before us by Mr. Saleem that in the absence of direct evidence of anybody having actually seen the appellant applying match box to the fuel wood, the possibility of the real accused having slipped away leaving him there to manage the rest of it, could not be excluded. Having regard to the relevant facts and the evidence, we consider it rather far-fetched and are clearly of the view that despite the absence of ocular evidence, the probability of the appellant having actually put the dead body to fire 1s so great that we can reasonably act, on existence as envisaged, on the interpretation of expression "proved" contained in section 3 of the Evidence Act.
12. Apart from the prejudice caused to the appellant who in the absence of a formal charge, had no opportunity to meet the precise allegations of an offence under section 201/511, P. P. C. Mr. Saleem raised an important legal contention to challenge the conviction of the appellant under this section when he was originally tried on a charge of murder. Learned counsel tries to criticise the authority Begun etc. v. The King-Emperor (I L R 4 Lah. 226), which changed the course of judicial pronouncements and in this regard forming the basis of subsequent authorities, according to which, in view of the provisions contained in section 237, Cr. P. C., no exception could be taken to the conviction of a person originally tried for murder for an offence under section 201/511 P. P. C.
Despite the absence of formal charge in this regard. Reliance was placed in this regard on the statutory Provisions contained in sections 236 to 238, 72. 376(3) and 403, Cr. P. C. Although apparently we see considerable force in the contention raised by the learned counsel for the appellant yet having regard to the illustration contained in section 237, Cr. P. C., which appears to have formed the basis of the Privy Council authority, referred to above, with the utmost respect, we would not like to make bold to break new ground so as to make a departure from the settled position. It would, however, be appropriate for their Lordships of the Supreme Court to examine this matter in an appropriate case. Accordingly, while setting aside the conviction and sentence of the appellant on charge of murder, we record his conviction under section 201/511, P. P. C. For which the maximum sentence would be one-half of that of seven years prescribed for an offence under section 201/511, P. P. C. Which comes to three and a half years. The appeal partly succeeds to this extent.