1998 P Cr (PLP)

IFTIKHAR MUHAMMAD CHAUDHRY, J.‑‑ We have partially allowed this appeal vide order, dated 26th March, 1998, for the reasons to be recorded later on and here in below are the reasons. Prosecution case as gleaned from Fard‑e‑Bryan (Exh.P.l) got recorded by P.W.I Amir Muhammad, is that on fateful night of 5th February, 1995, at 2‑30 a.m. when lie carne to his Dairy for milking the cows, he found opened the door of room and saw that dead body of his nephew Abdullah is lying ill the pool of blood, whereas appellant Zulfiqar who also used to work in the same Dairy was disappearing and the main gate of Diary was also opened. He also alleged that his nephew Abdullah has been murdered without any reasons by appellant Zulfiqar and thereafter, he ran away from the place of incident. The (lead body was shifted to hospital where it was examined by P.W. Dr. Manzoor Baloch and noticed multiple injuries on it. In the Medical Certificate (Exh,P.2) probably cause of death was disclosed by doctor, as injury to head (multiple incised wound on skull, face and left hand) excessive bleeding shock and death. During investigation, appellant was arrested and he was produced before P.W. Muhammad Saeed, Assistant Commissioner/M.F.C. on 8th February, 1995, who recorded his confessional statement. On completion of other formalities of investigation: appellant was sent up to face trial before the Sessions Judge, Quetta, from where the case came up for disposal tot the file of Sessions Judge (ad hoc), Quetta. , On 8th May, 1996, learned trial Court read over the charge to appellant which he answered in following words:‑‑ Prosecution in support of its case examined; P.W.1 Mir Muhammad. He affirmed the contents of Fard‑e‑Biyan arid produced it as EXh.P.I. P. W.2 Dr. Manzoor Baloch, He produced the Medical, Certificate, P.W.3 Inayatullah. He deposed that on the night of incident, his son Hafizullah knocked at his door and told him that police has come to his Dairy and is enquiring about Zulfiqar Ali. He asked to his son; whether Zulfiqar had come there, on which he stated that he had no knowledge about it. His son further explained to him that according to version of police Zulfiqar came on a cycle which has been found lying outside in the street. On this he accompanied his son to Dairy and found that police is present there. He explained that there are two rooms in the garden of his Dairy which have no doors and when they reached near those rooms they saw that clothes of Zulfiqar are lying in the garden who had thrown them after changing it. Police took into possession the clothes. Zulfiqar was handed over to police. He stated that he should not be given in the custody of police. On enquiry of witness Zulfiqar told him that he had fought with Dairywalas are not there, had worked with him for about six months and when Zulfiqar was being handed over to police. He stated that he should not be given in the custody of police. On enquiry of witness, Zulfiqar told him that he had fought with Dairywalas, and they are after him, but he told him that Dairywalas are not there, but it is the police, who is alleging that Zulfiqar had come there after committing the murder. In cross‑examination he deposed that he got recorded his statement with the police after 15 days of incident. During cross, it has also came on record that he has not stated in his previous statement that Zulfiqar came to his Dairy after fighting with Dairywalas, etc. P.W.4 Hafizullah. According to him, appellant, Zulfiqar was hiding himself in one of those rooms situated in the garden and when he was being handed over to police he requested that his custody should not be given to them, because they will beat him and he also stated that he had a fight etc. P.W.5 Waliullah. In his presence, police took into possession the incriminating articles, including dagger and blood‑stained mattress, from place of incident. P.W.6 Ali Ahmad. In his presence, Zulfiqar was arrested from the Dairy of P.W.2. P.W.7 Muhammad Ayub. He shifted deceased Abdullah to hospital in his vehicle. P.W.8 Ghulam Mohiuddin. He stood witness to the recovery of incriminating articles vide Inventory Memos. Exh.P./8‑A (recovery of dagger) Exh,P,8/B (sketch of dagger) EXh.P,8/C (recovery of piece of blood‑stained mattress) and Exh.P,8/D (recovery of blood‑stained clothes of deceased, handed over by doctor to police). ENS Farted Ahmad. S.‑I. He initially conducted the investigation of the case and produced incomplete challan as Exh.P.9/A. P.W.10 Muhammad Saeed. M.I.C/M F C: He recorded confessional statement of accused under section 164, Cr.P.C. (Exh.P.10/B) and, produced certificate as Exh.P.10/C, appended therewith. It may be noted that in confessional statement the accused has given almostly the same statement, which he deposed before the Court, while answering the charge, contents whereof, have already been reproduced hereinabove. P.W.11 Nazar Jan. He produced the challan as Exh.P.11/A. P.W.12 Muhammad Saleem Investigating Officer. He completed the remaining investigation of case. He also produced site plan as Exh.P.12/A and inspection note of place of incident as Exh.P.12/B. P.W.13 Syed Abdullah, Chemical Analyser. He produced his report as Exh.P.13/A, confirming that the suspected blood stains available on articles sent to him for examination, were of human blood, but were not found to be fit for grouping. Appellant in his statement under section 342, Cr.P.C. denied the prosecution case. However he stated that he has not killed Abdullah, but he died with his own knife. confessional statement was also retracted by him. It is to be noted that on the February, 1995, he admitted that he was working in the Dairy and was sleeping on that night, in a room, with deceased Abdullah. It is important to note that while answering to question No.14, he gave following reply:‑‑ Learned trial Court, mainly relied on the confessional statement of appellant as well as his statements, given by him while answering the charge and ultimately convicted him under section 302, P.P.C. to suffer imprisonment for life with benefit of section 382‑B, Cr.P.C., vide judgment, dated 7th October, 1997. We have heard Mr. Saleem Ansari, learned counsel for appellant and Malik Sikandar Khan, learned Advocate‑General and with their assistance have also gone through the evidence on record. Learned counsel for appellant stated that prosecution case mainly hinges upon the confessional statement of appellant, which has been believed to be true and voluntary. If the confession is kept in juxtaposition with the statement of appellant, which he got recorded in Court, while answering the charge and replying question No.14 of his statement under section 342, Cr.P.C., the offence will be covered by section.303, P.P.C. instead of 302, P.P.C. We enquired from hint, as to whether appellant even now strict, to his stand taken before the trial Court and the confessional statement got recorded by him. 'He answered that there is no option for the appellant, because his statement before the Court was recorded, while lie answered the charge and the confessional statement, otherwise is a piece of evidence, which has been used by prosecution against him, considering it to be valid for all intents and purposes, therefore, according to him, appellant deserve sentence under section 303, P.P.C, instead of section 302, P.P.C. Malik Sikandar Khan learned Advocate‑General conceded to above legal position and stated that appellant has been wrongly sentenced under section 302, P.P.C. It would be appropriate to reproduce here in below the definition of Ikrah‑a-tam and section 303, P.P.C. 'Ikrah‑a‑tam" means' putting any person, his spouse or any of his blood relations within the prohibited degree of marriage in fear of instant death or instant permanent impairing of any organ of the body or instant fear of being subjected to sodomy or Zina‑bil‑Jabr,

303. Qatl committed under Akrah‑i‑tam or lkrah‑i‑Naqis'.‑‑ Whosoever commits Qatl‑‑ (a) under Ikrah‑i‑tam shall be punished with imprisonment for a term which may extend to twenty‑five years but shall not be less than ten years and the person causing Ikrah‑i‑tam shall be punished for the kind of Qatl committed as a consequence of his Ikrah‑i‑tam; or (b) under lkrah‑i‑Naqis' shall be punished for the kind of Qatl committed by him and the per son causing ' Ikrah‑i‑Naqis' shall be punished with imprisonment for a term which may extend to ten years. It is a cordinal principle of criminal administration of justice that if prosecution has no other evidence to support accusation, except accused's confessional statement under section 164, Cr.P.C. and it is to be relied in tots and believing it true the Court would examine that what offence has been made out against the accused. In this behalf if any authority is required, reliance can be placed on 1995 SCMR 351 and 1992 SCMR 2047, A careful perusal of the statement made by appellant under section 164, Cr.P.C. reveals that on the night of incident he was sleeping in a room along with deceased Abdullah when latter expressed desire to satisfy his unnatural lust but appellant resisted. Ultimately deceased took out a dagger from an almirah and attacked upon appellant, which hit his hand, Thereafter, they both grappled with each other, in the meanwhile the dagger had fallen in the hand of appellant, with which, he repeatedly gave blows on the person of deceased and injured him, There after on a bicycle he left the Dairy and went towards Kechi Beg, where he went to Inayatullah who was known to him, earlier to this incident, because he used to work as labourer in his Dairy. On reaching there, he scaled over the wall and went inside his house and then opened the door and took his cycle in the house. There he changed his blood‑stained clothes and wore the clothes, which lie had ready brought with him and then he concealed himself in the kitchen of house. After half an hour police came there and he was arrested. This statement of the appellant, if is believed in to, no other conclusion can be drawn, except that to save himself from sodomy, which deceased intended to commit with him, he had attacked upon the deceased with the dagger, which was owned by the latter. Almostly same version, he disclosed before the Court in his statement, which he got recorded while answering the charge. Likewise in his 342, Cr.P.C. statement, somewhat identical explanation was offered by him, while answering question No. 14, Therefore, leaving all other evidence brought on record by prosecution if the confessional statement, as well as the statement of accused given by him, while answering the charge and question No. 14 of his 342, Cr,P.C, statement, are considered, it can safely he concluded that appellant has committed the offence, which falls under section 303, P.P.C. as he was apprehending, that deceased would commit sodomy with him and prosecution evidence is not sufficient to bring home the guilt against appellant under section 302, P.P.C Thus, for the foregoing‑reasons, appeal is partially allowed, conviction/ 5entcice of appellant under section 302, P.P.C. to suffer imprisonment for line is conversed under section 303(a), P.P.C, Appellant Zulfiqar Ali son of Jan Muhammad, caste Chandio is sentenced to undergo ten years' R.I. He shall also be entitled for the benefit of the period during which he remained as under trial prisoner as provided under section 382-,B, Cr. P.C. N.H.Q./(685/Quetta Order accordingly,