P L D 1975 Peshawar 52 (PLP)

SHAH ZAMAN BABAR, J.-Najib Raza Rehmani aged 16 years, son of Shamsul Haq, resident of Thana Malakand Agency was charged under section 302, P. P. C. for the murder of Fariduddin, a 3rd Year student, of Khyber Medical College, Peshawer University, Peshawar, for firing at him with his pistol. The trial was held by Muhammad Azam Khan, Additional Sessions Judge, Peshawar, and he by his judgment dated 25-4-1973, convicted the accused under section 302, P. P. C. but keeping in view the age of the accused at the time of the occurrence, he awarded the convict a sentence of life imprisonment. The convict has appealed.

2. Najib Raza Rehmani appellant is resident of Thana Malakand Agency. His brother Zahir Rabbani was a 4th Year student in Khyber Medical College in the first half of the year 1972. Fariduddin deceased was a 3rd Year student of the Medical College. Zahir Rabbani and Fariduddin occupied Room No. 77 in Hostel No. 1 of the University of Peshawar and thus they were room-mates. Abdul Haee another 4th Year student of the M. B.B. S. occupied Room No. 91 in the same Hostel. Fariduddin would go for study in Room No.

91. It appears that the appellant and the deceased had developed intimacy as the appellant would visit his brother in Room No.

77. P. W. Fariduddin had also seen the appellant in the Hostel on 30-4-1972 when the appellant was staying with his brother. The appellant had another friend named Lal Muhammad who was a student of Government Training School for Men at Peshawar. Lal Muhammad and the appellant had been sending letters to each other.

3. On 16-5-1972, at about 9-25 a .m., P. W. Rohzatullah a student of M. Sc. Final residing in Hostel No. 1, Room No. 84 and Farid Anwar another student found that the door of Room No. 91 was open and Faridud-din was lying unconscious on the floor of the room. An electric fan was lying near the deceased. P. W. Rohzatullah and Farid Anwar got an impression that Fariduddin had been electrocuted. Rohzatullah informed P. W. Muhammad Azam Jan, Administrative Officer, University of Pashawar, on telephone. Muhammad Azam Jan rushed in a jeep from his office and came to Hostel No. 1, Room No.

91. He saw Fariduddin lying on the floor of the room. Azam Jan lifted the wounded and found three empties of .25 bore Exh. P. 1, two live bullets Exh. P. 2 and two metallic cover bullets Exh P.

3. Muhammad Azam Jan took Fariduddin injured in the jeep to the Lady Reading Hospital, Peshawar. Muhammad Azam Jan locked the room and handed over the keys to the Registrar of the University. P. W. Attaullah Khan A. S. I. was on duty in the Casualty Department of Lady Reading Hospital on 16-5-1972. The A. S. I. prepared the injury-sheet of the injured Fariduddin. Fariduddin succumbed to the injuries on 16-5-1972 at 11-10 a.m. Attaullah Khan A. S. I. prepared the inquest report of the deceased. After the post-mortem examination of the dead body the A. S I. took into possession a vial containing lead bullet handed over by the doctor vide Memo. Exh. P. D. From the personal search of the deceased the A. S. I. recovered an envelope Exh. P. 17 containing a letter Exh. P. 18 purported to have been written by the appellant and addressed to Fariduddin deceased. The envelope the letter and some other articles were taken into possession by the A. S. I. vide Memo. Exh P. C.

1. P. W. Khan Bacha A. S. 1. then incharge of Police Post, University of Peshawar on the receipt of information about the occurrence came to Hostel No.

1. The Registrar of the University handed over to the A. S. I. the keys of Room No.

91. The A. S. I. opened Room No. 91 with the keys Exh. P.

5. At this moment Azam Jan P. W. also arrived from the Hostel and he lodged the report Exh. P. A. 1 with the A. S. I. at the spot. The report was sent to the Police Post, Peshawar Uni versity where it was entered in the daily diary and later on a case was registered vide F. I. R. Exh. P. A. on the basis of this daily diary report. The A. S I. Khan Bacha found blood on the floor of Room No.

91. He took into possession blood-stained pillow Exh. P. 4 vide Memo. Exh. P. C. from the floor of the room. He also took into possession two keys Exh. P. 15, three empties of .25 bore Exh. P. 1, two small lead bullets Exh. P. 2 and two metallic covers Exh. P. 3 and sealed into parcel vide Memo. Exh. P. B. Khan Badshah A. S. I. then went to the Lady Reading Hospital and took into possession the clothes of the deceased. The A. S. I. Khan Bacha had also prepared the site plan Exh. P. R. 2.

4. Point No. 1 in the site plan in Room No. 91 of Hostel No. 1 depicts the place where Fariduddin had fallen injured. Blood was picked up from this point. A bunch of keys, a blood-stained pillow and a blood-stained empty of .25 bore were recovered from this place. Point 1-A depicts a place where a cot was lying. A spent bullet with cover of .25 bore was picked up from this place. Distance between Point No. 1 and Point No. 1-A was two feet. Point No. 2 represents the place where a pedestal fan was lying .25 bore bullet was recovered from this place. Distance between Points Nos. 1 and 2 was 4 feet. At Point No. 3 another empty of .25 bore was recovered. From Point No. 4 also an empty was recovered. This site-plan was prepared on 18-5-1972, P. Ws. S.

1. Jawahar Shah of Police Station Tehkal took over investigation from Khan Badshah A. S. I. at about 6-20 p.m. on 16-5-1972. The A. S. I. produced the letter Exh. P. 18 which was recovered during the search of the body of the deceased. This letter is signed in English as "N. R. Rehmani" and the envelope Exh. P. 17 is addressed to Mr. Faridud din, Hostel No. 1, Room No.

77. The letter gave a clue to the S. I. that the author of the letter was a brother of Zahir Rabbani a student of Medical College, Peshawar who was a room-mate of the deceased. The appellant was thus arrested on 18-5-1972. The appellant was produced before a Magistrate at Peshawar, on 19-5-1972. The Magistrate granted Police custody of the appellant for three days as requested by the Police. On the third day of the Police-Custody, viz. on 22-5-1972, the appellant was produced before Mr. Lal Badshah Afridi M. I. C. Peshawar who recorded the following confessional statement Exh. P. Z. of the appellant on the same day after observing all legal formalities :- "I am a son of retired Arabic Teacher who has settled in village Thana Malakand Agency as originally we hail from former Dir State. After taking my matriculation examination, I was waiting for my result. I had a desire to go to Peshawar and meet my brother named Zahir Rabbani who is a student of 3rd year M. B. B. S. Khyber Medical College, Peshawar and who is residing in Hostel No. 1, Room No.

77. In order to fulfil my desire I assumed journey on 30-4-1972 for the purpose. On arrival I went straight to Hostel No. 1, Room No. 77 where I met my brother Zahir Rabbani. Another student named Fariduddin (deceased) who belonged to Hazara District was a room mate of my brother. I stayed up to 2nd May 1972 in the hostel with my brother in which Fariduddin was also residing. Between 30th April 1972 and 2nd May 1971, the father of Fariduddin whose name is not known to me but he is a lecturer in Islamyat in Mansehra College had also stayed in Room No. 77 where I was staying with my brother. On 3rd May 1972, I made up my mind in order to see my friend Aminul Haq in Dak Ismail. I accordingly went to Dak Ismail Khel where I took lunch with him and returned to Peshawar the same day with Aminul Haq. At night Aminul Haq, myself and Fariduddin deceased slept in Room No. 77 on separate charpoys whereas my brother Zahir Rabbani slept on floor of the Hostel No.

1. The light was off. On 4-5-1972 at about 3 a.m. I felt that someone is sleeping in my charpoy and was trying to open my trousers' string. At this I woke up and saw that it was Fariduddin deceased, who alighted from my charpoy and went outside. Moreover I felt some wetness on the rear portion of my Shalwar near my buttocks which appeared to me "semen". When Fariduddin entered the room I went out and washed my Shalwar. Fariduddin deceased, slept in his own charpoy and I slept on my own charpai due to shame I could not disclose the occurrence to my brother as Aminul Haq who was my friend was also present. On 4th May 1972, after taking morning tea with my brother I met another friend of mine named Mukhtiar Ahmad who is a student of 9th Class in University Public School, Peshawar. At that time Aminul Haq was also accompanying me. In the afternoon .the same day I and Aminul Haq boarded a bus. Aminul Haq alighted from the bus at Pabbi and I went straight to Dargai (Malakand Agency) where I stayed with my brother-in-law Mohabbat Shah who is running a radio shop at Dargai. I stayed with my brother-in-law up to 6th May 1972 and on 7th May I went to my -village Thana. On 11th May 1972 a friend of mine named Manzoor Ahmad a student of Ist Year Government College, Thana handed over letter to me which was received by him through Post Office. I opened the letter and it was written by Fariduddin deceased from Peshawar. The contents of the letter which showed urge for homo-sexuality with Fariduddin deceased greatly shocked me Fariduddin deceased had displayed urge that 1 should yield to his lust from homo-sexuality. In the said letter Fariduddin deceased had written that I should fulfil his desire for homo-sexuality before 12th May 1972 and I was given warning that if I failed to meet his desire the matter would be publically published. This greatly shocked .me as I being a modest boy could not yield to the contemptuous and unnatural desire of Fariduddin deceased. I kept quiet and did not disclose it to anybody. I thought that I should go to Peshawar and meet Fariduddin deceased again, if he begged for apology I will give him apology. Before assuming journey I armed myself with a -pistol .25 bore carrying four cartridges in its magazine, mainly with this intention that I should defend myself from the evil desire of Fariduddin in case he attacked me again for homo-sexuality. On 13-5-1972, when I reached Peshawar I went to a friend of mine named Lal Muhammad who is undergoing training in P. T. C. situated on Warsak Road, Peshawar. I did not disclose the matter even to Lal Muhammad. I stayed on 13th and 14th May 1972 as guest with Lal Muhammad in the Hostel of P.T C. On 15-5-1972 I went to University Campus, took my meals in Niamat Mahal Hotel situated on Jamrod Road and after offering my peshin prayers I went to the Cafee Shop of Islamia College, Peshawar where I wrote a letter to Fariduddin, took the letter by hand and pushed the same inside Room No. 77, Hostel No. 1 under the door so that Fariduddin should get the letter. I returned from Hostel No. I and stayed for the night on 15-5-1972 in the said Niamat Mahal Hotel. I had written in the letter addressed to Fariduddin that he (Fariduddin) should not go to college on 16-5-1972 but instead should stay in the hostel where I intend to meet him. On 16-5-1972, when I went to Hostel No. 1, I saw Fariduddin deceased in the verandah of Hostel No.

1. He made some gestures and "chic-chis". Since I had not eased myself I went straight to the latrine of the hostel. When I was easing myself inside the latrine I heard some knocking at the door of the latrine. I opened the door and saw Fariduddin deceased standing outside the latrine. Fariduddin deceased asked me as to what I was doing. I told him that I was easing myself. At this Fariduddin deceased told me that he had kept vacant Room No. 91 of the Hostel and that I should come to that room after easing myself. I again sat for easing in the latrine and after a while Fariduddin deceased appeared on the wall of the next room of the latrine Fariduddin deceased again told me that I should come to Room No.

91. After easement I traced Room No. 91 and thereafter entered the said room. Only Fariduddin was present in the room. Fariduddin deceased showed his desire for homo-sexuality. I refused. At this Fariduddin deceased caught hold of me and laid me on the charpoy. With one hand he held my two hands and neck and on the other he opened my string of trouser. It was about (9 or 9-15 a.m.). At this time I had my pistol loaded and it was lying in the pocket of my vest coat. I told deceased Fariduddin to set the padestal fan on as I was feeling heat. When he turned about in order to set the fan in question on, I drew my pistol out of my pocket and fired at him three rounds, which hit him and as a result he fell down on the floor of the room. I again put my pistol in the pocket of my vest coat. I tied my trousers' string and ran outside the room and the hostel. I came to Peshawar Cantt in a G. T. S. bus and alighted a rickshaw and came to Lal Muhammad who was in P. T. C. situated on Warsak Road. I did not disclose the occurrence to Lai Muhammad. I took my bag from Lai Muhammad and I stealthily kept my pistol under a pillow of Lai Muhammad. Lai Muhammad did not notice it. I again boarded a rickshaw and alighted near Sabrina Cinema, where I boarded a bus which was scheduled to go to Mardan via Charsadda. The same, day I reached my village Thana and I narrated the whole occurrence to my father. I also showed him the letter which Fariduddin had written to me. He tore the letter and burnt it. My father was greatly annoyed with the act which l had done. On 17th May 1972, I was arrested by Malakand Agency Police." The box of Lal Muhammad student of the Training School, Peshawar was searched by the I. O. in the presence of P. W. Mr. Mumtaz Khan, Principal of the School. Four letters Exh. P. 11 purported to have been addressed to Lai Muhammad by appellant were recovered from the box. The Principal also produced an application for leave dated 18-5-1972 written by Lai Muhammad. The letters and the application were taken into possession vide Memo. Exh. P. G. The I. O. produced the appellant on 19-5-1972 before P. W. Muhammad Din Khan, Magistrate, Peshawar. The special writing of the subject of the letters Exh. P. Z./1 to Exh. P. Z./9 purported to have been addressed by the appellant to Lai Muhammad were obtained from the appellant by the Magistrate and handed over to the Investigating Officer. The Investigating Officer had also taken into possession the Registers of Niamat Mahal Hotel, University of Peshawar, produced by the P. W. Iftikhar Ahmad, Manager of the hotel. Vide Entry No. 163 of the Register, the appellant had come to the hotel on 15-5-1972 stayed for the night and had left the hotel next morning on 16-5-1972. The S. I. Johar Shah sent the four letters Exh. P. 11, Register Exh. P. 10 in separate parcels specimen handwriting of the appellant Exh. P. Z /1 to Exh. P. Z /9 and original letter Exh. P. 18 and envelope Exh. P. 17 to the Handwriting Expert, Peshawar. P. W. Malik Muhamma3 Ashraf, Director of Science I aboratory, after examination of the questioned letter and its comparison with the specimen writing of the appellant found that the questioned writing bears identical character with the specimen writings obtained from the appellant.

5. Doctor Sarfaraz Khan had examined the injuries of Fariduddin injured on 16-5-1972 at 9-50 a.m. and found the following :- Patient was unconscious but not in shock. (1) Fire-arm injury wound entrance right parieto-frontal region dia no charring. (2) Fire-arm injury entrance wound 2" behind and medially to injury No. 1, 1 /4" dia with no charring. (3) Fire-arm injury exit wound 2 " behind and medially to injury No. 2 communicating with injury No. 2 (with probe). (4) Left ear bleeding. Only bullet of Injury No. 1 has entered the skull cavity. Nature of injuries dangerous; duration: within three hours; weapon used: fire-arm. The medico-legal report Exh. P. T. is in the doctor's hand and correct. The patient died on 16-5-1972 at 11-10 a.m. and the same doctor, (Sarfaraz Khan) performed the post-mortem examination at 11-45 p.m. the same day. Internal Examination: (1) Scalp and skull injured. Skull perforated and fractured correspond ing to injury No. 1. (2) Only scalp injured corresponding to injuries 2 and

3. Stomach con tained food particles; small intestines contained semi-digested foods and large intestines contained faecal mass. In the doctor's opinion, the patient died due to shock and respiratory, failure due to lacerated wound of the brain on the path of bullet of injury No. 1 and interacranial haemorrhage caused by fire-arm. A bullet of 47 grains weight recovered and handed over to Police. This bullet was, recovered from the bone behind the left eye and ear. Probable time that elasped between injury and death: 3-41 hours and between death and post-mortem 35 minutes. The post-mortem report Exh. P. V. is in the doctor's hand and correct. The inquest report Exh. P. U. also bears the doctor's signature.

6. P. W. Doctor Abdul Aziz had examined the appellant on 22-5-1972 for age. The doctor opined that from physical appearance the age of the appellant was 16 years.

7. The appellant had denied the charge of murder before the committing Magistrate with respect to the confessional statement Exh. P. Z. he had stated as under: "I did not make it voluntarily, before that I was in Police custody and the Police Officer threatened me that if I did not make this confession to their wishes they would beat me and torture me. They also told me that if I made a confession I will be acquitted." At the commencement of the trial he pleaded not guilty to the charge of murder. At the trial, the appellant had admitted that his brother was a student of M. B.B. S. and the deceased was his room-mate. He denied to have made the confessional statement Exh. P. Z. He stated that the letter Exh. P. 18 addressed to Fariduddin deceased was got from him by force in the Police Station. He has not addressed it to the deceased through the mail. He added that the confessional statement was obtained from him through coercion by the Police. Explaining the charge against him, he stated "I remained in Police custody for three days and the Police was, insisting that I should make a confession. When refused I was, tortured by them. On account of the torture, I once agreed to make a confession but when I was produced before the Curt I told the Police that I would not make a confession. They brought me back to the Police Station and they again tortured me. In spite of repeated requests the Police did not agree to allow me to see my relatives or obtain legal advice. When I became altogether helpless I agreed to make a confession and then I made one. I am innocent and falsely charged." He produced no evidence in defence. There is no ocular evidence in the case, relating to the murder of Fariduddin. The prosecution case tinges on the sole evidence of the retracted confessional statement Exh. P. Z. of the appellant. This confessional statement was recorded by P. W. Lal Badshah Magistrate Peshawar. According to the evidence of the Magistrate, he was convinced that the confession was made voluntarily. No evidence or circumstances are forthcoming to the effect that the confessional statement was obtained by the Police from the appellant as a result of torture or duress. The original confessional statement Exh. P. Z. of the appellant in our view is a true and genuine statement of the appellant and it has been made voluntarily. The confession has been retracted by the appellant at the trial, on the ground that it has been obtained from him by torture by the Police. A retracted confession by itself can be legally taken into consideration against the maker if the confession is found to be true and voluntarily, 4 and as against the maker of the confession it can be the basis of the convic tion, but prudence requires that such confession should be corroborated on material points and surrounding circumstances. In The State v. Minhun alias Gul Hassan (PLD 1964 SC 813), it has been observed :- "Retracted confession, whether judicial or extra-judicial, could legally be taken into consideration against the maker of those confessions himself, and if the confessions were found to be true and voluntary, then there was no need at all to look for further corroboration. As against the maker himself his confession judicial or extra judicial, whether retracted or not retracted, can in law validly form the sole basis of his conviction, if the Court is satisfied and believes that it was true and voluntary and was not obtained by torture or coercion or inducement. The question, however, as to whether in the facts and circumstances of a given case the Court should act upon such a confession alone is an entirely different question, which relates to the weight and evidentiary value of the confession and not to its admis sibility in law. Unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the con fession cannot but be true." 'The confessional statement in our view is true and genuine, made voluntarily and corroborated in all material particulars. As such it can be the sole basis of conviction.

8. Mr. Muhammad Shafiq Khan, learned counsel for the appellant argued that in the confessional statement Exh. P. Z. the appellant has alleged that Fariduddin deceased had showed him desire for homo-sexuality. The appellant refused. At this Fariduddin deceased caught hold of him and laid him on a charpoy with one hand. He held the appellant's two hands and the neck and on the other he opened his trouser's string. The appellant had a pistol loaded lying in a pocket in his waistcoat. The appellant told Fariduddin to set the pedestal fan as the appel lant was in heat and when the deceased turned round in order to set the fan, the appellant drew his pistol from his pocket and fired three rounds which hit the deceased as a result of which he fell down on the floor of the room. From this portion of the confessional state ment, the learned counsel concluded that the appellant was assaulted by the deceased with the intention of gratifying his unnatural lust and therefore the appellant was entitled to the right of private defence of his person. He also argued that the portion of the confessional statement with regard to the assault on the appellant cannot be splitted from the confessional state ment by the appellant wherein he fired three shots with his loaded pistol at the appellant and as such the confessional statement when considered as a whole would not be sufficient to constitute an offence of murder and as such this confessional statement cannot be considered piecemeal against the appellant and thus the appellant is entitled to acquittal. The circumstances of the case have established the fact that the appellant on receipt of a letter from the deceased and the appellant gave reply of that letter to the deceased with protest that he should not have written such a letter to him (the appellant). The appellant had come to Peshawar from Thana predetermined to vindicate his honour and had armed himself with a pistol. He had kept his movements at Peshawar secret from his brother also and had approached the deceased in seclusion. Thus the meeting of the appellant with the deceased in Room No. 91 appears to be an excuse on behalf of the appellant to avenge his honour and to do away with the deceased. Anyhow, the moving away of the deceased to set on the pedestal fan at the request of the appellant had brought the assault, if any, on the deceased to an end and is an independent fact. Thus in our view the appellant bad no legal justification to fire at the deceased and kill him when he was standing near the pedestal fan. The offence was committed as a result of premeditation and was preplanned and in such circumstances, the appellant is not entitled to the right o private defence. 9. `Confession' has not been defined in the Evidence Act. In Pakala Narayana Swami v. Emperor (A I R 1939 P C 147), it has been held :- "The word `confession' as used in Evidence Act cannot be construed as meaning a statement by an accused `suggesting the inference that he committed' the crime. A confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession. A state ment that contains self-exculpatory matter cannot amount to a confession if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed." The Supreme Court of India has followed the Privy Council in the leading case of Parvindar Kaur v. State of Punjab (1953 S C J 545) wherein Mahajan, J. has observed :- "The confession must either admit in terms the offence or at any rate, substantially all the facts which constitute the offence. The admission is of gravely incriminating fact, even conclusively incriminating fact not by itself a confession. The statement that contains self-exculpatory (self-defending) or other matter cannot amount to a confession, if the exculpatory statement is of the same facts which, if true, would negative the offence alleged to be confessed. The statement which when read as a whole is of exculpatory character and in which the prisoner denies his guilt is not confession, and cannot be used in the evidence to prove his guilt". M. Munir, in Law of Evidence (1969 Edition) at p. 74, following vijendrajit v. State of Bombay (1953 S C J 330) has commented: "No doubt when the accused makes a statement, regarding any fact which is partly inculpatory and partly exculpatory, the Court is bound to, consider the statement as a whole. However, when the statement of the accused covers two different and independent facts, it is open to the Court to accept the statement so far as it relates to one fact and to reject it as to another fact which is proved beyond doubt by the prosecution evidence."

10. In conclusion of the above discussion, we are of the view that the conviction and sentence of the appellant are well merited and no interference is called for. We, therefore, dismiss the appeal. K. B. A. Appeal dismissed.