' Mst. Sodhi, the appellant in this case, was married to the deceased Manoo Machhi and they used to reside, prior to the incident from which this appeal arises, at Tando Muhammad Khan with their children, that is to say, prosecution witness Gul who is about 8 years of age, his younger sister Aluri and two other children who are even younger and whose names do not transpire upon the record of this case ; the couple also had three other children of whom the eldest, Ramxan was living separately from his parents and the two others, who were daughters, were married and lived separately, that is to say, with their husbands. For some time prior to the incident the relations between the deceased and the appellant were extremely strained inasmuch as the deceased suspected her to be of loose character and in fact according to the prosecution case she had left her husband and eloped with some person, who is not named, but was subsequently restored to the husband through the intervention of one Abdullah. The deceased then shifted from Tando Muhammad Khan and became a hail of prosecution witness Muhammad Hashim, a Zamindar who had land about 18 or 20 miles away from Tando Muhammad Khan and upon this land the deceased built a but in which he resided with his wife and the four younger children. Even so, however, the deceased was not entirely satisfied that his wife would continue to live a chaste life and it was, therefore, his custom, whenever he left the house, to confine her by means of locking her up with a chain.
2. On the 24th of April 1971, it is alleged, the witness Gul and his sister Aluri had gone in the morning to graze their bullocks and when they returned at sunset time they found their father, that is the deceased, lying dead on his cot with a hatchet injury on the side of his neck. The appellant Sodhi was in the house and she told the children that the father had committed suicide ; the story was clearly improbable inasmuch as the deceased had a severe wound upon his neck but it would be too much to expect children of the age of Gul and Aluri that they should realise the implications of this fact and the explanation put forward by their mother or that in any case, they should feel able to do anything about the matter. Accordingly the childern ate their meals and went to sleep but, it is said that the son was unable to sleep, presumably because he was in a disturbed state of mind, and actually saw his mother carrying the dead body of his father towards the pucca road which is at a distance of some 600 or 700 feet from the house and then saw her return and wash her clothes. Apparently he must have eventually gone to sleep for when he woke up in the morning he found that there was nobody in the house besides himself, his mother having disappeared and having taken with herself both Aluri and the younger children. The boy then went to Tando Muhammad Khan where he informed his uncle. In the meantime Mst. Sodhi herself went to the house of the Zamindar Muhammad Hashim, whom I have mentioned earlier and who resided about a mile away from the house of the deceased. According to this witness she then made a clean breast of the entire matter to him informing him that she had killed her husband with a hatchet while he was asleep and had then removed the corpse to the road. Muhammad Hashim then took the appellant with himself to the Taudo Muhammad Khan Police Station where he informed the S. H.
0., prosecution witness Imdadali, who himself made enquiries from the woman and then registered a first information report showing himself as the first informant. Before going on with the narration of the events I must pause here and confess to a sense of surprise at the manner in which this first information report has been recorded. The proper thing to have done, I think, would have been to have recorded Mst. Sodhi's statement and made her the first informant, or, alternatively, to have recorded the statement of Muhammad Hashim. The S. H.
0. Did neither but proceeded to hear from the woman herself her account of the story and he is careful in his deposition in the Court to state that he did all this before he actually recorded the F. I.
R. In the deposition he was careful to omit or perhaps he was made to omit, much of the statement that was incriminatory but the first information report states all that is alleged to have been told to him by Mst. Sodhi and this statement of course would be clearly not merely incriminatory but a confession in the full sense of the words. Now a confession to the police is undoubtedly inadmissible under the Evidence Act, so also, by reason of section 162 of the Criminal Procedure Code, is a statement made to the police in the course of an investigation. Some confusion of ideas seems to have prevailed in the mind of the S. H.
0. Who apparently thought that if he were to record the first information report as information given by himself and if he were to add that the entire story had been given to him by the appellant before he recorded the F. I. R. It would somehow become admissible and underlying this assumption also is the supposition that an investigation does not commence until after the F. I. R. Is recorded. It is quite true of course that under the Criminal Procedure Code a police officer has to commence an investigation only after he has recorded the F. I. R., but it does not follow that merely because he omits to record a first information report, then if he takes steps which are in fact of a character which amount to an investigation, then statements made in the course of such an investigation would not be barred by section 162 of the Criminal Procedure Code. An attempt as to evade the provisions of the relevant law can, therefore, only be deplored and it is, moreover, in the result quite futile. The straight forward and proper course would have been to have recorded the statement either of the woman or Muhammad Hashim it is true that even then much of the first information report would have been inadmissible amounting to evidence of a confession but that could not be helped ; there would then have been no question of any attempt to avoid the consequences of Statutory Law, which renders such a statement inadmissible in Court but does not present its being recorded. Indeed, I think, the law required that it should be recorded inasmuch as section 154 of the Criminal Procedure Code clearly provides that "every information relating to the commission of a cognizable offence if given orally to an Officer-in Charge of a police station shall be reduced to writing by him or under his direction".
3. In any case having recorded this statement the police officer then recorded the statement of Muhammad Hashim and formally took Msr. Sodhi into custody. She then led the police to the Tando Muhammad KhanBulri Road and pointed out the corpse of her husband Mano and this place is a few hundred paces away from the but of the deceased. An incised injury was noticed on the neck of the corpse and there was forthcoming out from his mouth and nostrils. Between the place where the corpse was seen and the house of the deceased there were drops of blood and these too were pointed out by the appellant to the police officer, who secured the blood-stained earth from the road. In the but itself there was a cot lying and portions of it were blood-stained and secured. The appellant then led them outside the enclosure of the house, and there from a heap of earth she produced some bad clothes and which apparently had been scrapped from under the cot and this too was secured. From the eastern enclosure of the house the appellant then produced a hatchet but this did not appear to have any marks of blood and the appellant finally produced a knife which was lying near the hatchet and this was found to be blood-stained. The bed-clothes were then secured as they too were blood-stained and in addition some clothes of the appellant which she pointed out and which were also blood-stained. She also produced the iron chain with lock and key which apparently her husband used to lock her with whenever he left the house. Of all these matters one single Mashirnama was made and subsequently all the blood-stained articles were sent to the chemical analyser, who found them stained with human blood the hatchet of course was not sent inasmuch as it bore no blood stains. The police officer then recorded the statement of the appellant's son Gul, but not that of Aluri who was too young to give a statement but nothing else of importance was done in the course of investigation which resulted in the sending up of the appellant to the Court of the Civil Judge and First Class Magistrate, Tando Muhammad Khan from where she was committed to the Court of Session, Hyderabad on a charge of murder. The learned Sessions Judge, who tried her came to the conclusion that the evidence did not warrant her conviction under section 302, Pakistan Penal Code and acquitted her of that offence but has convicted her under section 201, Pakistan Penal Code and sentenced her to R. I. For three years. This appeal is directed against that conviction and sentence.
4. Now on the charge of murder there was no ocular testimony against the appellant and the first piece of evidence against her was that of the extra-judicial confession said to be made to Muhammad Hashim. This confession did not appeal to the learned Judge and I think he was clearly right in his conclusion. In the first place it was a retracted confession and, although of course in law a conviction can be recorded even upon a retracted extra-judicial confession, it would normally be unsafe to do so unless that confession is corroborated by other external evidence of such a character as would assure the Court that the confession was in fact made and was in fact true.
That was not so in the instant case. The confession was to the effect that the deceased was given more than one hatchet blow but the medical evidence would show that there was one single injury and the hatchet which the appellant had shown to the police was not blood-stained. It was also improbable in the extreme, as the learned Judge has held, that the appellant would alone be able to remove the dead body of the deceased over a distance of about 700 feet and it is to be recalled that according to her confession she alone was the culprit It does appear very likely that if she had anything to do with the murder she must have been assisted by someone else but the confession is categoric in attributing the crime to herself and herself alone. On the basis of the confession, therefore, it would be idle to speculate that she was a party to the crime of murder but with the aid of somebody else ; such a conclusion although probable is not in line with the confession and, if the confession is to be made the sole basis of the conviction, then surely the probability of her being helped by somebody else runs counter to the confession itself which can therefore, hardly be said to be corroborated. It is true that there is the evidence of her son Gul but that after all, even if completely believed, is only to the effect that she gave what was obviously a false explanation of the death of the father and that he subsequently saw her carrying away the dead body and washing her own clothes. These circumstances are no doubt incriminating against the appellant but they cannot be recorded as evidence of her having committed the crime of murder itself. I have, therefore, come to the conclusion that the learned Judge was quite right in acquitting the appellant of murder.
5. For the offence under section 201, Pakistan Penal Code, of which the learned Judge has convicted the appellant there were, however, a number of circumstances which he took into account. It seems hardly necessary to recount them again in detail ; they are the various discoveries which I have already mentioned when 1 have narrated the investigation of this crime and include the facts that she pointed out the place where the dead body was lying and various objects and places which were found blood-stained including the bed-clothing's and her own clothes. The knife which she has produced was clearly not the knife which was used for the purpose of the murder. It is a small knife without a handle and moreover has blunt edges. It is apparent, therefore, that it was not used for the actual murder but it seems to be equally apparent that it was used for scrapping of the blood which was found on the ground under the cot. There has been no attempt on the part of the appellant to explain not only the blood which was found upon the cot from the house of the deceased to the place where the dead body was found or upon the cot and the knife but upon her own clothes either. Clearly, therefore, she had taken some part, if not in the commission of the crime of murder, at any rate, in the disposal of the body thereafter. It seems to me, therefore, that these facts are not only clearly established but remain entirely unexplained and point decisively to the guilt of the appellant.
6. The body of the deceased was found upon an open road in full view of anybody who happened to pass by and I did feel at the outset that there being no concealment of the body section 201 of the Pakistan Penal Code was not attracted to this case. However, the learned Judge has relied in his judgment upon a decision of the Dacca High Court reported in Hashu and others v. The State (1) and the learned Assistant Advocate-General has also drawn my attention to that case. After the most careful consideration I have come to the conclusion that the mere fact that the body was not in fact concealed and was openly visible to anybody who happened to be going along the road does not take away from the applicability of section 201 of the Pakistan Penal Code. The material words in that section are :- "Causes any evidence of the commission of that offence to disappear with the intention of screening the offender from legal punishment."
' There is nothing in that section which necessarily requires the concealment of any material object ; any concealment which is material for the purposes of that section is one of the evidence of the commission of that offence. Now, if the dead body had been found in the but it should certainly have been evidence of commission of the offence and evidence also against the appellant herself.
I do not say of course that, that evidence would {{FOOT NOTE}}
(1) 1968 P Cr. L 1 920 {{FOOT NOTE}} ' necessarily have been conclusive but it would undoubtedly have been evidence which was relevant and material and which the Court would have been pound to consider against the appellant. The conveyance of the body, therefore, to a place outside the but was an act which amounted to causing 'any evidence of the commission of that offence to disappear", and clearly vas with "the intention of screening the offender from legal punishment."
7. Before the learned Judges who decided the Dacca case to which I Lave referred an earlier Calcutta case was cited 37 C W N 348, which had been followed in PLD 1964 Dacca 710 for the proposition that :- "The mere fact that the corpse of the deceased was removed from the place where he was murdered to a mosque did not make out any charge under section 201 of the Code inasmuch as it was not impossible to conceive of the commission of an offence apart from where and when and by whom it was committed."
' The learned Judges then went on to observe :- "So far as the proposition of law laid down in PLD 1964 Dacca 710 is concerned we find ourselves unable to agree with the broad proposition laid down there, namely, mere carrying of the dead body in the absence of anything to show that a physical attempt was made to conceal the same is not enough to attract the mischief of section 201 of the Penal Code. If a murder be committed at place 'A' and the dead body be removed from there to another place by a person who knew or had reason to believe that a murder had been committed certainly he causes the disappearance of an evidence of the commission of murder inasmuch as he has caused to disappear a very important piece of evidence concerning the venue of murder."
8. I find myself in respectful agreement with the view expressed in this case and, therefore, hold that the facts established against the appellant do rake out an offence under section 201 of the P. P.
C. It is true of course that the probabilities of the case are that she was not unaided in the commission of the crime but that would not reduce her liability for the offence.
9. The sentence that has been awarded to the appellant is by no means or harsh and I, therefore, see no reason to interfere either with the convict on or the sentence and dismiss this appeal accordingly.