The facts leading to the present application under section 439/561-A, Cr. P. C. May briefly be stated as follows :- On 2-10-1972, Ali Hassan and Halim are alleged to have assaulted applicant Ashfaq Ali (hereinafter referred to as the "complainant") with a knife. The complainant reported the incident at Kalankot Police Station and a case was registered under section 307/34, P. P. C. By S.1. P. Syed Athar Ali Naqvi (hereinafter referred to as "the accused"). The accused arrested Halim but did not arrest Ali Hassan It is then stated that while the accused investigated the case against Halim and Ali Hassan, the complainant produced three witnesses, namely Ahmad Khan, Irshad Ali and Shafiqur Rehman. It is alleged that the accused persuaded these three witnesses to make a statement in favour of Halim and Ali Hassan. On pain of their being involved in false cases and being apprehensive of the accused intending to spoil the prosecution case they made an application before the Additional District Magistrate at Karachi requesting that their statements may be recorded by Magistrate.
Such request' was acceded to by the Additional District Magistrate who directed some other Magistrate to take action. In the meantime the complainant lodged a direct complaint against the accused in the Court of City and Additional District Magistrate, Karachi, alleging the commission of offences under section 201/202, P. P. C. By accused Syed Athar Ali Naqvi. This complaint was transferred to the Court of Sub--Divisional Magistrate, Harbour, Karachi, who held a preliminary enquiry under section 202, P. P. C. In this enquiry the same three witnesses, namely Ahmad Khan, Irshad Ali and Shafiqur-Rehman were examined but thereafter the complainant was given many opportunities to produce -but remaining witnesses but the complainant failed to avail of these opportunities. It may be stated that in the complaint no less than 23 witnesses had been cited. The Sub-Divisional Magistrate dismissed the complaint for the reasons which may better be reproduced. The reasons are as follows :- "The complainant was offered many opportunities by this Court to produce his entire evidence but be only produced the three P. Ws. And did not lead any other evidence. There is nothing on record to substantiate the allegations of complainant and his P. Ws. Against S. I. P. Athar Ali Naqvi. This complaint has been filed by the complainant only to save his skin and to harass the Police Officer that is why this complaint was filed after a long time. It looks an after--thought affair. From the entire evidence of the complainant and his P. Ws. No prima facie case is disclosed against the said S. I. P."
Aggrieved by the order of dismissal of complaint, a revision application was filed by the complainant before the IIIrd Additional Sessions Judge, Karachi and the same was also dismissed.
The learned Additional Sessions Judge was of the view that the acts which had been alleged against the accused were done by him in exercise of his official duties and without a proper sanction of the Government prosecution was barred under section 197, Cr. P. C.
Before closing the narration of the events it may be stated that the complaint lodged by the complainant was found to be false and for such reason two separate cases were filed against the complainant under section 182, P. P. C. By the accused. The complainant was also prosecuted under section 13-D of the West Pakistan Arms Ordinance in relation to possession of a weapon. The complainant had earlier filed quashment applications before this Court and such applications as is disclosed by the order of the Additional Sessions Judge, were allowed and the proceedings against the complainant were quashed. Although a copy of the order of High Court for quashing the proceedings has not been placed before me, I am informed by counsel on ether side and I believe that the proceedings must have been quashed because in the meantime the complainant had filed a direct complaint against Halim and Ali Hassan in the Court of some Magistrate. It is stated by the Advocate for the applicant/complainant that even these proceedings have concluded as a result of compromise arrived at between the complainant on the one hand and Halim and Alt Hassan on the other.
3. I have heard Mr. Makhdoom Sharif, Advocate for the applicant/ complainant Ashfaq Ali and Mr. Ghulam Ali Agha, Advocate for the State. Respondent/accused Syed Athar Ali Naqvi and his Advocate Syed Ameer Azam Rizvi, were not present. Since the present application is being dismissed without any order to the prejudice of the respondent/accused I have not thought it proper to adjourn, this case.
4. The only evidenceon which Mr. Makhdoom Sharif, the learned Advocate for the applicant/complainant has relied for forming the factual basis of the complaint is the depositions of witnesses Ahmad Khan, Syed Irshad Ali and Shafiqur Rehman. These three witnesses had been examined by the Sub-Divisional Magistrate who held the preliminary enquiry into the complaint filed by the complainant against the accused under section 201/202, P. P. C. All that was stated by Ahmad Khan was to the following effect :-- "Accused Athar Naqvi took up the investigation of the said case himself. He asked me and other witnesses to make statement under section 164, Cr. P. C. In favour of Ali Hassan and Halim."
To the same effect was the statement of Syed Irshad Ali and Shafiqur Rehman who bad, however, added that the accused threatened Syed Irshad Ali that in case he implicated Halim and Ali Hassan the accused would also implicate him in some cases. Shafiqur Rehman has added that accused told him that in case he implicated Halim and Ali Hassan he would not be allowed to reside in Karachi and would be implicated in false cases from various police stations. Besides such bald statements nothing else has been stated by any of these three witnesses. None of these three witnesses has stated as to what were they actually asked by the accused to state. What is more that there is nothing on record to indicate what was the interest that the accused had in Halim and Ali Hassan so that he might have intended to save them from legal punishment. It is further stated by these witnesses that they moved an application before the City and Additional District Magistrate requesting for their statements being recorded by some Magistrate. A copy of that application or the order of the Additional District Judge has also not been placed before me so that there is no means of knowing as to whether they had made a complaint in the same terms before the City and Additional District Magistrate. On a reading of the order of the Sub Divisional Magistrate I find that no reference is made to this application and it is therefore fair to conclude that this application was not placed even before the Sub-Divisional Magistrate.
5. Although the learned Additional Sessions Judge dismissed the revision application on the ground of want of sanction I do not think it is necessary to enter into that question because I am clearly of the view that on the evidence and averments made in the complaint an offence under section 201 or 202, P. P. C. Is not made out. Suffce it to say, in that context that the learned Additional Sessions Judge bad relied on the casgs Syed Ahmad v. The State (PLD1958SC(Pak.)27), S. M. H. Rizd v. Abdul Salam and another (PLD1960SC358), Syed Azizuddin v. Shabbiruddin arid others (PLD 1964 Kar. 102) and Syed Amir Abbas v. Mazhar Ali Shaikh and others (PLD 1965 Kar. 95). Mr. Makhdoom Sharif has, in that context, relied upon a Single Judge decision in the case of Muhammad Ismail v.
The State (PLD 1970 Kar. 261) to canvass a view that a Sub-Inspector being removable by Inspector-General of Police, section 197, Cr. P. C. Would not be applicable. This Single Judge decision makes a reference to a wealth of case-law on the subject. Whether the view is correct may be kept for consideration in a suitable case and for the purposes of this judgment it is not necessary to enter into that question.
6. Section 201, P. P. C. To the extent of its being relevant to the present case reads as follows :-- "Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false, shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine."
One of the main ingredients in proof of offence under section 201, P. P. C. Is that the accused should cause evidence of a crime to disappear. The words "any evidence of the commission of that offence" and "disappear" have merited consideration of the High Courts of this sub-continent in various cases. The word "evidence" as used in section 201, P. P. C. Is not capable of interpretation in a wide sense as the word is used in the provisions of Evidence Act. This word is used in its primary sense as meaning a thing which by itself is evidence of the crime, e.g. The existence of wounds on dead body or bloodstains or fabricated documents or weapon of offence, etc. This word excludes the statements of witnesses or mashirnamas because such documents or circumstances do not constitute the "evidence" within the meaning of section 201, P. P. C. In the case of Anwar Khan v.
Emperor (AIR 1921 Born. 115) Pratt and Fawcett, JJ. Considered the import of this word and interpreted the same as follows :- "The expression "any evidence of the commission of that offence", I think clearly refers, not to evidence in the extensive sense in which that word is used in the Indian Evidence Act, but to evidence in its primary sense, as meaning anything that is likely to make the crime evident such as the existence of a wounded corpse or of blood stains, fabricated documents, or similar material objects indicating that an offence had been committed. The statements of a witness and Panchnamas do not in my opinion, constitute such evidence."
The learned Judges also referred to the case of Emperor v. Naran Bhai Bhulabhai (201 C 601) in which a Police Patel was charged with having torn a mashirnama which he had made. The conviction was upset by the Bombay High Court although the circumstances of that case had their own peculiarities. I am referring to this case only because while in the case referred to a document had actually been destroyed, in the present case there is not even an allegation that any document was either prepared or done away with. In the case of Nagendra Bhakta v. Emperor (AIR 1934 Cal. 144) the facts were that the accused had removed the corpse of the deceased from a certain house to the verandah of a mosque. The question arose whether the accused was guilty of dis--appearance of evidence. The learned Judges, adverting to the circumstance of removal of the corpse, stated that this fact did not constitute disappearance of the evidence of commission of an offence because the mere fact of death of a person was not sufficient to come to the conclusion that a murder had been committed and further that the corpse was available although at a different place. To similar effect is the judgment of Division Bench of the Calcutta High Court in the case of Upendra Chandra v. Emperor (AIR 1941 Cal. 456). I would in this context lastly refer to the case of Muhammad Bux v. The Empress ((1882) 17 P R 25). Although this is a very old case the facts bear a close affinity to the allegations in the present case. In that case the accused had reason to believe that a murder had been committed and on: Mst. B, the wife of the murdered man was aware of the facts and since she was in the village there was a likelihood of her being questioned in regard to this murder. The accused then thought of a plan to remove Mst. B from that village so that she would not be likely to communicate that knowledge about the crime to others.
Smyth and Elsmie, JJ. Observed that by reason of the accused having taken measures to prevent knowledge about the commission of the crime being communicated to others, the removal of that person from one village to another would not make out a case of the disappearance of evidence. I am of the view that causing disappearance of evidence first of all cannot be equated with keeping a witness away from Court or an agency competent to collect evidence for the purpose of trial. If the Legislature had intended to provide for keeping of a witness out of the way more appropriate language could easily have been available. In B certain cases it may well be that evidence is shut out by causing disappearance of a witness but that would not amount to disappearance of evidence for the word "evidence" as used in section 201, P. P. C. Seems to signify concert objects as distinct from witnesses who are not objects but animated beings.
7. Applying the above principles to the facts of the instant case I am left in no doubt that no case under section 201, P. P. C. Was made out against the accused, more so as the three witnesses were not made to disappear but perhaps only asked by the accused to withhold evidence.
8. Section 202, P. P. C. Punishes such persons who having knowledge or having reason to believe that an offence has been committed intentionally omit to give such information. By no stretch of interpretation can this section apply in the present case because the accused has given information based on his investigation to the relevant Court. The accused had given an opinion that no case had been made out and therefore Halim and Ali Hassan may be released under section 169, Cr. P. C.
9. For the above reasons I see no substance in this application which is dismissed.