P L D 1959 (W (PLP)

SHABIR AHMAD, J.

‑Mst. Ramzan Bibi, daughter of Abdullah, her brother Faqiria, their mother Mst. Zenab Bibi, and Allah Bakhsh, who was described by the accused persons as the husband of Mst. Ramzan Bibi but was held to be her paramour, were tried for the murder of Wahid Bakhsh, the charge against Mst. Ramzan Bibi being that of‑ murder and against the other three that they were her abettors, with the result that each of them was held to have committed the offence charged. Sheikh Muhammad Akbar, the then Additional Sessions Judge, Multan, who held the trial, by his order dated the 25th of September 1958, sentenced Mst. Ramzan Bibi to death and the other three to transportation for life. Mst. Ramzan Bibi has presented the present appeal through the jail authorities to question her con viction and her case has been referred to this Court for confirma tion of the sentence of death as required by section 374 of the Code of Criminal Procedure. The other three convicted persons also have presented appeals, the appeals of Mst. Zenab Bibi and Faqiria which were sent to this Court through the jail authorities being Criminal Appeal No. 895 of 1958 and Criminal Appeal No. 388 of 1959, respectively, and that of Allah Bakhsh, which was presented through a counsel being Criminal Appeal No. 891 of 1958. As all the appeals are directed against the same judgment they and the reference for confirmation which arises out of that judgment will be disposed of by this order.

2. The prosecution case was that Mst. Ramzan Bibi who was the wife of Wahid Bakhsh, the victim, did not want to live with him and had an illicit intimacy with Allah Bakhsh appellant in Criminal Appeal No. 891 of 1958 who had rented a house for her. A number of cases had been instituted by Wahid Bakhsh and Mst. Ramzan Bibi against each other and as Allah Bakhsh anted to do away with the husband of his paramour he incited her to kill him. The case against Mst. Zenab Bibi and her son, Faqiria, was that they had on the 12th October 1957, brought Wahid Bakhsh, to the house in which Mst. Ramzan Bibi was living in order that he may be done to death and the murder bad been committed that very day shortly after Wahid Bakhsh came to the house to which he was brought.

3. According to the prosecution case, Wahid Bakhsh was done to death at about 10 a.m., on the 12th of October 1957. The first information report to the police was based on a state ment which Mst. Ramzan Bibi appellant made before Captain Abdul Majid, the then Additional District Magistrate, Multan, at about I1 a.m. In this statement, which is Exh. P. BB on the record Mst. Ramzan Bibi after recounting that Wahid Bakhsh who was the uncle of Muhammad Yar, her first husband, who had divorced her, entertained sexual desire for her and his attempt to sleep with her against her will had failed once but on the morning of the occurrence he came to her house and wanted to rape her and in order to save her honour she picked up a sharp edged weapon and caused injuries to him of which he died.

4. At the trial the prosecution did not produce any eye witness of the occurrence but led evidence to show that Mst. Ramzan Bibi was the wife of Wahid Bakhsh, the victim, and the paramour of Allah Bakhsh, her co‑accused, that she did not want to live with her husband, that a number of civil and criminal cases had been instituted by the spouses against each other, that Allah Bakhsh had instigated Mst. Ramzan Bibi to do away with her husband Wahid Bakhsh, and that on the morning of the occurrence Wahid Bakhsh had been brought to the house where Mst. Ramzan Bibi was living, which house had been rented for her by Allah Bakhsh, and was there done to death. 7 he conviction of Mst. Ramzan Bibi was based, besides the motile, on the statement which she had made to Captain Abdul Majid, Additional District Magistrate, Multan, soon after the fatal assault on Wahid Bakhsh.

5. The learned trial Judge held that the claim of the pro secution that Wahid 13akhsh was the husband of Mst. Ramzan Bibi was incorrect as was the claim of Allah Bakhsh and Mst. Ramzan Bibi that they were married to each other. These findings were not challenged during the arguments and I am of the view that they were not incorrect. I would, therefore, deal with the case on the assumption that Mst. Ramzan Bibi had illicit intimacy with Allah Bakhsh and was not the wife of Wahid Bakhsh, the victim.

6. Before dealing with the appeal presented by Mst. Ramzan Bibi, I will dispose of the appeals of her co‑accused. The only evidence on which the conviction of Allah Bakhsh is based is the deposition of Farid Muhammad (P. W. 29) from whom Allah Bakhsh had rented the room with a courtyard in which Mst. Ramzan Bibi was living with her mother and brother. Farid Muhammad stated that a few days before the death of Wahid Bahksh he had heard Allah Bakhsh advise Mst. Ramzan Bibi and Mst. Zenab Bibi that Wahid Bakhsh should be decoyed to the room in which Mst. Ramzan Bibi resided on the pretext of a compromise and killed there. The witness could not say how long before the death of Va4 Bakhsh he had heard the incite ment by Allah Bakhsh to which he deposed and this vagueness about the time would necessarily weaken his statement a good deal. But there is another fact which makes the statement lose all its value. Makhdum Manzur Hussain, Advocate, Multan, who appeared at the trial as the 27th witness for the prosecution stated that a couple of days after the murder he had gone to the police station to condole with the relatives of Wahid Bakhsh who had been his client in a number of cases and had seen Farid Muhammad (P. W. 29) at the police station. It is on the record that the statement of Farid Muhammad was recorded by the police on the 20th of October 1957. 1 have no reason to doubt the statement of Makhdum Manzur Husain (P. W. 27) to the effect that he had seen Farid Muhammad at the police station about a week before his statement was recorded by the police and, therefore, the long delay with which Farid Muhammad informed the police about the incitement by Allah Bakhsh which he claimed to have heard cannot but reduce almost to nil the weight of his deposition that he had heard Allah Bakhsh inciting Mst. Ramzan Bibi to kill Wahid Bakhsh. I have arrived at the conclusion that the case against Allah Bakhsh is not proved beyond all reasonable doubt and 1, therefore, accept his appeal, acquit him and direct his immediate release.

7. Coming to the case of Mst. Zenab Bibi and Faqiria, one finds that the prosecution produced three witnesses, namely, Karim Bakhsh (P. W. 3), Rehmat (P. W. 31) and Noor Muhammad (P. W. 30) to prove that shortly before he was done to death Wahid Bakhsh was brought to the house where Mst. Ramzan Bibi resided. The statement of Noor Muhammad (P. W. 32) does not advance the case for the prosecution because though he talks about Wahid Bakhsh having been seen by him in the company of Mst. Zenab Bibi and Faqiria appellants he did not give the exact or approximate date on which he had seen the three together. The other two witnesses, however, said that it was on the morning of the day that Wahid Bakhsh was done to death that they had seen him in the company of Mst. Zenab Bibi and Faqiria. It appears to me that even if this evidence is believed it cannot suffice for the conviction of Mst. Zenab Bibi and Faqiria for the offence of abetment of murder. There is nothing to show that Mst. Zenab Bibi and Faqiria had not brought Wahid Bakhsh to the house of Mst. Ramzan Bibi for the purpose of a compromise and as there is no evidence on the record to show that Wahid Bakbsh was done to death as soon as, or very soon after, he entered the house the mere fact that he was brought to the house by Mst. Zenab Bibi and Faqiria cannot prove that the object of these two persons was that he should be done to death. The possibility of Wahid Bakhsh having been brought to the house of Mst. Ramzan Bibi by her mother and brother for the purpose of a compromise cannot be excluded, nor can the possibility of Wahid Bakhsh having left after a talk of compromise and returned again be excluded. Considering the evidence from all aspects, I have arrived at the conclusion that it cannot justify the conviction of Mst. Zenab Bibi and Faqiria and I would, give the benefit of the doubt to both of these and acquitting them direct their immediate release.

8. This leaves the case of Mst. Ramzan Bibi to be dealt with. The main and in fact the entire evidence to prove that she was the author of the injuries that killed Wahid Bakhsh is the statement which she made before Captain Abdul Majid, Additional District Magistrate, Multan, on the 12th of October 1957, which statement, on being sent to the police station in the jurisdiction of which the place of occurrence is situated, was registered as the first informa tion report. In this statement, as mentioned already, Ma. Ramzan Bibi said that she had killed Wahid Bakhsh who had made an assault on her for the purpose of committing rape. The learned Sessions Judge has acted on parts of this statement but not on some others which he considered to contain improbable assertions. 1t appears to me that the learned trial Judge erred in acting upon the statement of Mst. Ramzan Bibi only in parts. It is well settled that where the conviction of an accused person is based on a confession, the confession must be accepted in its entirety unless' there is some definite evidence to show that some part of the confession is untrue in which case that part may be kept out o consideration, In the present case, there is nothing to show that any part of the confession which is the sole basis of the conviction of Mst. Ramzan Bibi appellant is false and though the learned trial Judge cannot lie said to have erred when he said that parts of the confession contained improbable assertions it is clear that the fact that an assertion is improbable cannot prove that it is false.eA The learned trial Judge, should, therefore, have acted on the confession of Mst. Ramzan Bibi in its entirety but he has not done so. In her confession Mst. Ramzan Bibi said that she was lying inside her room when Wahid Bakhsh who had had sexual desire for her even when she was the wife of his nephew, Muhammad Yar, came there and lay on her. She told him that he should release her because she would not run away and he complied with this request. She rushed out of the room and picked up a sharp‑edged weapon which was lying in the courtyard attached to the room and with that weapon inflicted injuries on Wahid Bakhsh. In Court Mst. Ramzan Bibi made some improve ments on her original statement and stated that she acted in the exercise of right of private defence and on grave and sudden provocation. The question for consideration is whether these pleas, or any of them, have any substance.

9. Taking up the plea of Mst. Ramzan Bibi appellant that she acted in the exercise of right of private defence 1 would say that in view of her statement that she had been released by Wahid Bakhsh and had gone outside the room where he had attempted to have sexual intercourse with her against her will deprives her of the right of private defence of her person. The law is clear on the point that a person shall be deemed to have acted in the exercise of right of private defence only if what is done is absolutely necessary for the purpose of private defence. Now according to her own statement, Mst. Ramzan Bibi had entirely successfully foiled the attempt of Wahid Bakhsh to rape her and she had come out of the room where he was. It is clear, therefore, that the right of private defence which had accrued to her when Wahid Bakhsh caught her in the room on the bed in which she was lying had come to end and if after that right had come to end she went to the room where the victim was in order to teach him a lesson by dealing him blows with a dangerous weapon she could not be said to be acting in the exercise of the right of private defence which had accrued to her but had terminated when she was released by the man who had intended to ravish her. The. plea of private defence, therefore, cannot succeed.

10. I will now take up the plea of Mst. Ramzan Bibi that she acted on grave and sudden provocation. If a man attempts to have sexual intercourse with a woman against her will or without her consent, there is no doubt that he gravely provokes her and if the attempt ii; made suddenly, it is clear that she receives grave and sudden provocation. In the present case, the woman intended to be ravished went out of the room in which the attempt to ravish her had been made and from outside picked up the weapon which she used to cause fatal injuries to the man who wanted to ravish her. The fact that she successfully foiled the attempt of the man who wanted to ravish her would deprive her of the right of private defence but it cannot be said that when she attacked him she did not act on the grave and sudden provoca tion given to her by the man who wanted to ravish her. It is true that if she wanted she could have left the house without being further molested but the law does not deprive her of the concession that it gives to a person proved to have received grave and sudden provocation. In law the case of a person who claims to have acted in the exercise of right of private defence and of one who claims to have acted on grave and sudden provocation are governed by different rules. If danger to person or property has passed t the right of private defence ceases but if a person receives grave and sudden provocation the provocation cannot be presumed to have terminated as soon as the act which gave the provocation has come to an end. I would therefore, hold that it was established that when she attacked Wahid Bakhsh and caused him injuries which resulted in fatality, Mst. Ramzan Bibi was acting on grave and sudden provocation. The injuries were mostly on the head of the victim and it is obvious that the assailant intended to kill him and would, therefore, be guilty of an offence not of murder but of culpable homicide not amounting to murder made punishable by Part 1 of section 304 of the Pakistan Penal Code. Consequently I alter the conviction of Mst Ramzan Bibi from one under section 302 of the Pakistan Penal Code to one under section 304, Part I, of that Code and direct that she would e suffer seven years' rigorous imprisonment for the offence proved against her. The conviction of Mst. Ramzan Bibi for the offence of murder having been set aside, no question of confirmation the sentence of death imposed on her arises and that sentence is not confirmed.

11. The result, therefore, is that while Criminal Appeals Nos. 891 of 1958, 895 of 1958 and 388 of 1959, are accepted in their entirety and Allah Bakhsh, Mst. Zenab Bibi and Faqiria shall be set at liberty forthwith, Criminal Appeal No. 896 of 1958, is accepted to the extent indicated above and the sentence of death imposed on Mst. Ramzan Bibi is not confirmed. SAJJAD AHMAD, J.

‑I agree. A. H. Conviction altered.