1990 PLP 1053 (SCMR)

S. USMAN ALI SHAH, J.‑‑‑This is a petition for leave to appeal and is directed against the judgment of the Lahore High Court, Rawalpindi Bench, Rawalpindi whereby criminal appeal of Muhammad Aksar petitioner was dismissed. Briefly, the facts according to the F.I.R. are that the occurrence took place in village Bhangi P.S. Hazro on 27‑11‑1982 at midday in a street of the village. The deceased Dilbar was present at his ITujra alongwith his guests PW Muhammad Azam and Muhammad Ashraf (not produced). Muhammad Aksar and his co‑accused armed with chhuri assaulted the deceased: Muhammad Nawaz and Fordil gave him chhuri blows in the abdomen while Kaki Jan co -accused and Aksar petitioner inflicted chhuri blows on the back of the deceased. Akbar Khan (PW‑2) and son of the deceased when reached on the alarm was also dealt with chhuri blows by Taus and Zamurred Khan accused. Dilbar Khan deceased in injured condition was taken to the hospital where his statement Ex. PK was recorded by Raja Abdul Ghafoor S.T. the same day at 3.50 p.m. and he died in the hospital the next day and his statement hat been treated as dying declaration. The motive for the occurrence was alleged that Khaki Khan Councilor was constructing a Pacca drain in the street which was claimed by the accused party as their private property though it was a public thoroughfare. Dr. Rahmat Ellahi (PW‑2) examined the deceased while he was in injured condition at 2.30 p.m. on 27‑11‑1982 and found four injuries caused with sharp‑edged weapon within 4 to G hours duration and were kept under his observation. Dilbar Khan deceased expired on 28‑11‑1982 at 9.45 p.m. and the same doctor conducted autopsy on the dead body on 29‑11‑1982 at 10 a.m. The doctor found injuries to the left lung and left plurea due to injury No. 3, injury to the abdominal wall and peritoneum due to injuries Nos. 1 to 4. The doctor opined that all the injuries were ante‑mortem and found injuries Nos. 1, 3 and 4 grievous and dangerous to life while injury No. 2 was simple in nature. All the injuries were caused by sharp‑edged weapon. The same doctor also examined medically, PW Akbar Khan and found two simple injuries on his person. Injury No. 1 was caused with sharp‑edged weapon and No. 2 with blunt weapon. Muhammad Aksar petitioner who also injured in the occurrence was examined by the same doctor on 2‑12‑1982 at 12.35 p.m. and found three simple injuries on his person out of which injuries Nos. 1 and 2 were caused by sharp edged weapon and No. 3 was with blunt weapon. After the arrest and completion the investigation Muhammad Aksar petitioner alongwith five other co‑accused were sent fur their trial before the trial Court. The learned trial Judge after a review and analysis of the evidence so recorded concluded as under:‑‑ "Muhammad Aksar accused hits himself admitted a part of the occurrence and he has raised the plea of self‑defence but his plea of self defence cannot be accepted because there arc four sharp‑edged injuries on the person of the deceased. I therefore, hold Muhammad Aksar guilty of causing the death of Dilbar (deceased) in the heat of passion and in sudden encounter. I convict Muhammad Aksar accused under section 304 Part 1, P.P.C. and sentence him to undergo 10 years, R.I. and to a fine of Rs.10,000 or in default to further undergo R.I. for one year. If the fine is recovered, it be paid to the heirs of the deceased. I acquit Fordil Khan, Taus Khan, Muhammad Nawar, Zamurred Khan and Khaki Jan accused from the charges leveled against them giving them the benefit of doubt. I also acquit Muhammad Aksar accused, of the charges under sections 1‑18, 449 and a07, P.P.C." Appeal of Muhammad Aksar against his conviction and sentence before the High Court was dismissed vide judgment dated 22‑5‑1089 but his sentence was reduced to seven years and he was also given the benefit of section 382‑D Cr.P.C. However, revision petition filed by the complainant was also dismissed by the impugned judgment. Hence, this petition for leave to appeal. We have heard the learned counsel for the parties and have gone through the evidence on record. The learned counsel for the petitioner contended that the learned High Court has rightly accepted the principle laid down in P L D 1978 SC 200 that when conviction has to proceed solely upon the statement of an accused made under section 342 Cr.P.C. or a confessional statement as such, it has to be wholly accepted and cannot be split up but the learned Judge has deviated from this principle in case of the petitioner. The authority relied upon by the learned counsel is based on the authority of Indian jurisdiction that "it is a settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it is used against him". After going into the finding of the learned High Court in the light of the above observation, we are convinced that the principle laid down has been deviated by the learned Judge while dismissing the appeal of the petitioner. Thus we are agreeing with the above observation that the conviction of the petitioner was quite illegal and accordingly after hearing the learned counsel, we convert this petition into appeal, set aside the impugned judgment of the High Court and acquit the petitioner from the charge leveled against him. The petitioner is to be set at liberty, if not required in any other case. N.H.Q./M‑1279/S Accused acquitted.