Noorul Arfin, J.--The two accused in this criminal appeal are Mushtaq, aged 25 years and Imamali, aged 30 years, both brothers and sons of Kadir Bakhsh and arc by caste Mastoi. They were charged before the Sessions Judge, Nawabshah under section 302 read with section 34, P. P. C. and section 364, P. P. C. for abduction and murder of one Noor Muhammad, aged 22 years, also of the same caste, on 7th March. 1968. The prosecution case is that deceased Noor Muhammad was the sister's son of the complainant Allah Rakhio, who lodged the first information report in this case. Both of them resided in the village Palio Mastoi, Taluka Naushero Feroze, District Nawab Shah, and the two accused lived a short distance away from this village. The two accused have a brother, Gul Baig, who has a daughter named Mst. Haleema. The accused suspected Noor Muhammad to be on illicit terms with Mst. Haleema and the accused had, in this connection, complained to P. W. Allah Rakhio, the first informant. On the date of the incident, that is, 7th of March 1968, the deceased Noor Muhammad was cultivating the land of his cousin, P. W. 2 Khanan. This Khanan and P. W. 1 Behram were also with the accused in cultivating the land. At about noon time the deceased Noor Muhammad accompanied the two accused, on the latter's request, to Bhorti forest to help them to carry a log of wood. It is further alleged that at about 2-00 or 3- 00 p.m. of the same day, P. W. 3 Sajan went to the complainant P.W. 4 Allah Rakhio and informed him that while he was going through the forest to purchase Ghee he heard cries of "murder", "murder", and when he went to the site, he witnessed the two accused giving hatchet blows to Noor Muhammad, who had already fallen on the ground. P. W. Sajan recognised the two accused as they were already known to him. P. W. Sajan could not be of any assistance to the deceased, as he was threatened away by the accused. P. W. Allah Rakhio narrated this incident, amongst other persons, to P. Ws. Khanan and Behram, who told Allah Rakhio that the deceased Noor Muhammad had been taken away by the two accused on the pretext that they wanted the deceased's help to bring a log of wood. These persons were taken to the scene of offence, where the dead body of Noor Muhammad and blood-stained hatchet and log of wood were lying. Thereupon, P. W. Allah Rakhio went to the Tharu- shah Police Station, where his first information report was recorded by the Station House Officer, P. W. Abdur Rasheed. The next day, the two accused were arrested from their house in Deh Dilipots, which is 1| miles away from the place of incident. A mashirnama of arrest was prepared which is Exh. 17, and the two mashirs are P. W. 7 Khair Muhammad and P. W. 9 Daulat. The police is also alleged to have recovered blood-stained clothes and hatchet from the appellants' house at their instance and the mashirnama of this recovery is Exh. 18 with the same mashirs as are mentioned above. A blood-stained loin cloth and shirt were also recovered at the instance of accused Mushtaq from a tree in front of his house and the mashirnama of this recovery is Exh. 19 with the same Mashirs. The mashirnama of wardat is Exh. 15, the mashirs being, again, P.W.7 Khair Muhammad and P. W. 9 Daulat. These persons were also mashirs of the inquest report, which is Exh. I6. The clothes and other articles recovered by the police were sent for chemical analysis, the report whereof is Exh.
22. According to this report, the earth and straw recovered from the wardat the hatchet, a black striped "gode" and a shirt were stained with human blood, whereas blood on the greenish khaki "gode" had disintegrated and the yellow shirt, also sent for chemical analysis, was not stained with human blood at all. According to the post-mortem report, Exh. 6-A and the evidence of Medical Officer, Naushahro Feroze, namely, Dr. Aziz Muhammad, P. W. 6, the following external injuries were found on the dead body of deceased Noor Muhammad: "(1) An incised wound cutting the whole neck up to skin.
(2) An incised wound on the back of right knee 3' x 2" x 3".
All the structures of the neck were incised and separated."
The following injuries were found on internal examination: "(1) Skull opened.
(2) Spinal cord and vertebrae were incised."
According to Dr. Aziz Muhammad, the death of Noor Muhammad was caused due to shock and haemorrhage as a result of the injuries caused by a sharp cutting weapon such as hatchet.
2. The case was investigated by the Station House Officer, namely, P. W. 8 Abdur Rasheed, who, on completion of investigation, submitted his final challan on 16th April 1968 before the Civil Judge and First Class Magistrate, Naushahro Feroze, who committed the accused to stand trial before the Sessions Judge, Hyderabad. The defence of the accused is total denial of any complicity in the offence. They denied that they had any suspicion against the accused as regards the alleged illicit connections with Mst. Halcema. They also denied that they produced any clothes or other articles before the police. The accused Mushtaq made an allegation against P. W. Sajan to the effect that this person had robbed Mushtaq's cousin, Ghulam Muhammad, before the occurrence of the incident in the present case, and that, in the case filed by Ghulam Muhammad, this accused, as well as his brother, namely, Imamali, were prosecution witnesses. In making this allegation the accused purported to attribute enmity to P. W. Sajan.
3. As regards the killing of the deceased Noor Muhammad, there is no dispute and this killing has been borne out sufficiently by the inquest report Exh. I6, post-mortem report Exh. t-A and the evidence of the Medical Officer, namely, Dr. Aziz Muhammad, which evidence has been noted above. The question which requires consideration is whether the two accused committed the murder of the deceased Noor Muhammad or committed the ofience under section 364, P. P. C. The learned Sessions Judge noticed the discrepancy between the first information report and the statement in Court of the complainant P. W. Allah Rakhio, in that, in the first information report, there was no reference to the complaint allegedly lodged by the two accused with P. W. Allah Rakhio regarding the deceased's behaviour towards Mst. Haleema. In the absence of any evidence of this motive, the learned Sessions Judge disbelieved the complainant P. W. Allah Rakhio. Likewise, the learned Sessions Judge disbelieved P. W. Sajan, who claimed to be the eye-witness of the killing of Noor Muhammad on the ground that Sajan was closely related to the complainant Allah Rakhio and was on terms of enmity with the two accused and, further, Sajan admitted that Ghulam Muhammad Mastoi, the cousin of the two accused, had filed a case of dacoity against him and that the accused's brother was a prosecution witness against him in that case. As regards the recovery of blood-stained clothes and other articles, the learned Sessions Judge disbelieved the prosecution evidence on account of the discrepancies in the statements contained in the mashirnamas and the evidence of one of the mashirs namely, P.
W. 7 Khair Muhammad given iii the committal Court and before the trial Court and, further, the discrepancy between the evidence of this witness and the evidence of the S. H. O. namely, P. W.
Abdur Rasheed and also the admitted relationship of P. W. Khair Muhammad with the complainant.
As regards the other Mashir, namely, P. W, Daulat, he did not support the prosecution case at all regarding the production of the bloodstained articles by the accused, so much so that he had to be declared a hostile witness on request made by the Assistant Public Prosecutor. On cross- examination by the A. P. P., this witness stated that he found the accused sitting hand-culfcd in the Otak of the maternal uncle of the deceased, namely, Shahdad, and that they had a hatchet lying besides them and also a bundle of clothes. One particular discrepancy, of which the learned Sessions Judge rightly took note of, was that the complainant and other prosecution witnesses admitted that a blood-stained hatchet was found by the body of the deceased in the forest. But there is no mention of this fact in the evidence of the Investigating Officer. For these reasons, the 1 earned Sessions Judge acquitted the accused from the charge under section 302 read with section 34, P. P. C., but convicted them under section 364, P. P. C. to transportation for life, as he found that there was sufficient evidence for this latter offence in the depositions of P. Ws. Bahrain and Khanan, who had stated that the two accused had taken away the deceased to help them to bring a log of wood from the Bhorti forest.
(4) The State has not preferred any appeal against the accused's acquittal from the charge under section 302 read with section 34, P. P. C. The question is whether, it having been proved that Noor Muhammad was in fact killed by hatchet blows, the two accused could legally be convicted and sentenced under section 364, P. P. C. although they were acquitted of the charge under section 302 read with section 34, P. P. C. In our opinion this could not be done. To us, the legal position would appear to be that if the prosecution case is that the abducted person had been murdered by the abduction, then there can be 4 uo scope for a charge under section 364, P. P. C., as the abductor should be charged with murder pure and simple. In this connection, we would refer to these cases: (/) Alimjan Bibi v. Emperor AIR 1937 Cal. 571;
(it) Upendra Nath Ghose v. Emperor AIR 1940 Cal. 561;
(hi) Ijjatulla Akanda v. Emperor ILR 1944 Cal. 280.
In Upendra Nath Ghose v. Emperor the High Court of Calcutta went to the extent of laying down that it was an unfair device on the part of the prosecution to add or prefer a charge under section 364, P. P. C. where the evidence to establish the charge of murder is Weak or inconclusive. These above cases were followed by the High Court of Dacca.
The first Dacca decision is that of Mazaharul Haque v. Crown (1) in which it was held 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, P. P. C. The Dacca High Court reiterated this view in another case, namely, Sher All v. The State (2) in which it was held that when the dead body is found following the alleged abduction, the only charge that can be framed is one for murder or for the abetment of the commission of the murder, and that no charge under section 364, P. P. C. can be maintained. This view has also been adopted by a High Court in the Indian Jurisdiction in the case of Kh. Kalaporla Saidulu v. Hyderabad Government (3).
5. The learned Sessions Judge has placed much emphasis on the evidence of the deceased Noor Muhammad leaving with the two accused in convicting and sentencing them under section 364, P.
P. C. The two witnesses on this point are, as stated above, P. W. 7 Khair Muhammad and P. W, 9 Daulat, who stated that the deceased left with the accused for Bhorti forest to help them to bring a log of wood. But this circumstance by itself is not sufficient to prove the charge of an offence under section 364, P. P. C. against the accused. In this connection, we would refer to the decision of the High Court of Lahore in the case of Alla Rakha v. Emperor (4) wherein the evidence was that the deceased and the accused had left together and were last seen together and that the accused returned without the deceased. The Court held that although this circumstance led to a high degree of suspicion against the accused, yet this circumstance cannot be said to be inconsistent with any reasonable theory in the accused's favour. Therefore, the learned Sessions Judge, having disbelieved the evidence of motive, the evidence of P. W. Sajan, the alleged eye-witness of murder, the evidence of recovery of blood-stained articles, the only piece of evidence left to him was what P. Ws. Behram and Khanan stated, that the deceased accompanied the two accused to the Bhorti forest to help them to bring a log of wood. But in view of the Lahore decision, this circumstance alone would not establish a charge under section 364, P. P. C. Moreover, in out view, it would be unsafe to place reliance on the statements of P. Ws. Behram and Khanan, as we find that there is material discrepancy in their statements. P. W. Behram stated that the deceased left his bullocks with him and P. W. Khanan when he went away with the accused to Bhorti forest. But P. W. Khanan said that the deceased took away his pair of bullocks also when he accompanied the two accused and that these bullocks were left by the deceased at his house. Thus, on the material point of the deceased going away with the accused, the two important witnesses have contradicted each other with regard to an important piece of evidence, namely, as to whether the deceased left his bullocks with P. Ws.
(1) PLD 1950 Dacca 4 (2) PLD 1958 Dacca 499
(3) AIR 1953 Hyd. 249 (4) AI R 1927 Lah. b5.8 Behram and Khanan or he took away his bullocks when he left with the accused.
6. For the reasons stated above, we hold that the learned Sessions Judge erred in convicting and sentencing the accused under section 364, P. P. C. after having acquitted them from the charge under section 302 read with section 34, P. P. C. The result, therefore, is that this appeal succeeds and the conviction and sentence of the appellants is set aside. We further direct that the appellants be set at liberty forthwith unless they are wanted in some other case.
Khuda Bakhsh Marri, J.--I agree. .