P L D 1967 Lahore 348 (PLP)

ABDUL GHANI KHATTAK, J.‑By his order of 5th July 1965, the learned Sessions Judge, Campbellpur, convicted Agha Khan, aged 20 years, and his brother Umar Khan, aged 18/19 years, under section 302/34, P. P. C. and sentenced them to death and transportation for life, respectively, for the murder of Yaqub Khan. They were also convicted under section 324/34, P. P. C. for causing simple injury to Sher Afzal P. W. and sentenced to suffer rigorous imprisonment for a period of one year each. They were further sentenced to pay a fine of Rs. '500 under section 544‑A of the Cr. P. C. or in default to undergo R. 1. for one year. Their father, Rasul Khan, aged 60 years, was also tried along with Agha Khan and Umar Khan, but was acquitted of all the charges. Agha Khan, the condemned person, and Umar Khan have appealed against their convictions and sentences. The Sessions Judge has forwarded the case of Agha Khan for confirmation of the death sentence passed on him. This judgment will dispose of both the appeal and the reference. Rasul Khan, father of the appellant, is the collateral of the deceased. Sher Afzal P. W. is the son of Yaqub's wife from her previous husband. Amir Khan P. W. and Sujawal are first cousins inter se. They are related to both the parties.

2. The occurrence took place in the limits of village Khagwani on the 17th of July 1964, on a road leading to Hazro, at peshiwela. The report Exh. P. D. was made by Sher Afzal, who got injured in the transaction., the same day at 3 p.m. at police station Hazro at a distance of three miles from the spot, recorded by Mushtaq‑ur‑Rehman M. H. C. (P. W. 2). The injured person was sent to the hospital after having prepared his injury statement at the police station. Ghulam Yunis H. C. (P. W. 13) investigated the case who reached the spot at 4‑45 p.m. He prepared the injury statement Exh. P. K. and inquest report Exh. P. J/1 and despatched the dead body for post‑mortem. Bloodstained earth was recovered from the spot vide memo. Exh. P. E. At 7 p.m. the investigation of the case was taken over by Muhammad Sharif, Sub‑Inspector (P. W. 9). The two appellants were arrested the same day and their father Rasul Khan, since acquitted, was arrested the following day. Bloodstained chaddar and shalwar Exhs. P. 6 and P. 7, respectively were taken into possession vide memo. Exh. P. G. from the person of Agha Khan, appellant.

3. On the 17th of July 1964, at 7‑45 a.m. Dr. Muhammad Amin Chughtai (P. W. 1) performed the post mortem‑examination on the dead body of Muhammad Yaqub, deceased, and found the following injuries: (1) A stab wound "x "x going deep in chest cavity on the left side front of chest " from medium line of chest and 1 " above lower end and sternum. The margins of the wound were inverted. There was dried blood on the margins and adjacent areas of wound. (2) A stab wound " x " x 2" going under skin and in muscles on the right side of abdomen back at the level of 12th theracis spine 2" from it. (3) A stab wound 1 " x " x 4" deep cutting muscles with inward and downward directions situated on the back of right buttock just in its middle. (4) A stab wound 1" x " x 4" deep on the back of right thigh upper third with inward and downward directions of its depth. On dissection of the body 6th left inter space l " from medium line was cut with clotted blood in it. Pericardium, i.e. covering of the heart was cut under injury No. 1 and its cavity was full of blood clots. Heart bore stab cut through and through near its apex on right ventricular area. Right side of heart contained clotted blood. The same direction of the wound was bleeding to the stab cut on the upper surface of liver. Diaphragm was cut the same direction from the heart corresponding to injury No.

1. Stomach contained pound of undigested food looking like bread, etc. The cause of death in the opinion of the doctor was due to shock and haemorrhage by injury No. 1, causing injuries on heart and liver, which was ,sufficient to cause death in the ordinary course of nature. Injuries Nos. 2, 3 and 4 were simple. All the injuries were caused by sharp‑edged and pointed weapons. Probable time between injuries and death was almost sudden to 15 minutes, and that between death and post‑mortem was about 18 hours.

4. On the same day at 4 p.m. the same doctor examined Sher Afzal (P. W. 10) and found one stab wound 1" x " x 2 deep with inward and downward direction cutting muscles and going up to the ribs. It was situated on the right side of chest just near the middle of scapular region inner border and 1 " from the medium line of chest. The injury was simple caused with sharp‑edged and pointed weapon within 24 hours.

5. The motive for the occurrence is two‑fold. Firstly, a portion of shamilat land was claimed to be partitioned by Yaqub, deceased, which was resisted by the appellants. This motive has been admitted at the trial by the appellants. The motive as given out by the prosecution is that there had been a quarrel between Umar Khan, appellant, and the deceased, over election affair, a day prior to the occurrence. Majid Khan (P. W. 7) and Afsar Shah (P. W. 8) stated at the trial that there had been exchange of abuses between the parties over votes. The election was held three months after the above‑stated quarrel in which Majid Khan got defeated by Iqbal Khan, who was the nominee of Rasul Khan (acquitted accused). The deceased party was supporting Majid Khan in that election. With this background it is certain that the relations between the parties were strained.

6. The prosecution produced, besides Sher Afzal (P. W. 10), Sajawal (P.W. 11) and Amir Khan (P. W. 12) who claimed to have witnessed the occurrence. They are inimically disposed towards the appellants. The learned counsel for the appellants, pointed out and we agree with him that the names of Sajawal and Amir Khan P. Ws. were interpolated in the F. I. R. and in the inquest report, which indicates that these two witnesses were not present at the spot and they were procured ones to support Sher Afzal P. W. The conduct of these witnesses is most unnatural inasmuch as they left the deceased at the spot after they went home. The deceased was the son of the paternal‑aunt of Amir Khan P. W. and was the cousin of Sajawal P. W. They were sent for by Ghulam Yunis (P. W. 13) at about 5 or 6 p.m. As such their presence at the spot is most doubtful and no reliance can be placed, at all on their statements. This being the case, we are left with the statement of Sher Afzal (P. W. 10), who has made no mention of the motive in the F.

1. R.

7. The appellants at the trial professed their presence at the spot but gave the following version of the occurrence and claimed .right of private defence. To appreciate the plea of the appellants their statements at the trial are reproduced verbatim : Statement of Umar Khan, appellant: "There was no dispute between us over votes. However, there was a dispute resulting in exchange of hot words between me and Yaqub deceased about four days before the occurrence which took place in the bethak of Sardar Lambardar. The deceased sold his share in a piece of Shamilat in the abadi. He wanted the same piece of land to be partitioned again and I told him what was it that he wanted to be partitioned, because he had already sold his share. On the day of occurrence Sher Afzal met me near the spot when I was returning after plough. He complained to me that he bad shown disrespect to his uncle Yaqub deceased. This resulted in an altercation. At that time Yaqub deceased was present at the bethak of Majid Khan P. W. On hearing us exchange hot words Yaqub Khan came running from the bethak of Majid Khan armed with a chhurri. He was bare‑headed and bare footed. Both of them pursued me while armed with knife and chhurri respectively. I raised alarm which attracted to the spot Agha Khan my elder brother. I was throughout trying to save myself. Agha Khan injured Sher Afzal and Yaqub deceased to protect me and myself." Statement of Agha Khan, appellant "I was present at my well on the date of occurrence at about 1‑30 p.m. when I heard alarm being raised by Umar Khan my brother and went to the spot, Sher Afzal was armed with a knife while Yaqub deceased was armed with a chhurri. They were pursuing Umar Khan my brother who was running around the narhis. They wanted to injure Umar Khan and in order to save him I injured Sher Afzal with knife. I had stopped him before injuring him but he did not heed it. Thereafter Yaqub deceased also attacked my brother Umar Khan. I warned him not to do so but he did not mind it. Then I injured him also with my knife. He attacked me also and then I injured him in my self-defence. I had no intention to injure the deceased or Sher Afzal. They were injured in unprimeditated fight."

8. The prosecution case is that the appellant had waylaid the deceased and Sher Afzal (P. W. 10) when the latter were returning from Hazro after making some purchases. Implicit reliance on the ambush part of the occurrence cannot be placed for the reason that the deceased was found bare‑footed and bare‑headed. The articles allegedly purchased by the deceased at Hazro were not recovered at the spot. The person, namely, Warts of Hazro from whom Sher Afzal alleged that the articles had been purchased was not produced. Since Sajawal is not a witness of the occurrence, therefore, the explanation offered by him to have sent the footwear, headgear and the articles of the deceased to his (deceased's) house is a futile attempt. It appears that Sher Afzal P. W. has not disclosed the whole truth. If Yaqub deceased in fact had gone to Hazro, he would not have gone bare‑headed and bare‑footed. It appears that the deceased was attracted to the spot probably from the dera of Majid Khan by the first round of the assault on Sher Afzal. It is also probable that there was a quarrel of Sher Afzal with the appellants and the deceased responded to the fracas. Two rival stories have been put forward as to exactly how the fight began. It is quite clear that neither party represent the whole truth. The plea of right of private defence equally suffers from false hood. The complicity of Agha Khan in the crime is established by the evidence of Sher Afzal corroborated by the evidence of the recoveries from him. The admission made by Agha Khan does not appear to have been made by him out of any regard for tilling the truth but under the circumstances to serve his own end. We fully appreciate the right of an accused person that he is entitled to act in defence, but the defence plea and the prosecution case as a whole must make out the case for the right of private defence. In this case we do not find a scratch on the person of Umar Khan. It, therefore, does not ring true that Agha Khan caused the death of Yaqub and injured Sher Afzal in order to save his brother.

9. The learned counsel relied on Sher Gul v. Emperor (A I R 1935 Lab. 671) and Balmakund v. Emperor (A I R 1931 All. 1). Their Lordships of this Court followed the dictum laid down in the latter authority (Allahabad Full Bench case Balmakund v. Emperor). It was laid down in that ruling: "Where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the Court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as inherently by incredible." With our utmost regard to the dictum laid down in the authorities, the instant case is distinguishable. The power of the Court to question the accused in regard to the evidence which has been given is distinguishable from the power to record statement which the accused may offer to make. The Court can at the trial properly question the accused under the condition in mentioned in the section. Section 342, Cr. P. C. does not apply to statement offered by the accused. The Court is not bound to believe or disbelieve the confessional statement as a Whole. It is open to Court to believe one ‑ part of the confessional statement and reject the other, where there is other credible evidence in the case. The rule that a confession must either be accepted or rejected in its entirety applies only to those cases where there is no other evidence in the case, or where the other evidence is untrustworthy, and the only material for decision is the confession. When there is other credible evidence in the case incompatible with a part of the confessional statement, there is nothing to prevent the Court from rejecting that part of the confession and acting on the residue. A confessional statement made by accused in reply to question in accordance with section 342 can be read in evidence against the accused making it, but that does not negative the probative value of the evidence offered by the prosecution against him and the co‑accused.

10. As stated earlier, under the circumstances that both sides have not convinced us as to exactly how the occurrence started, we are entitled to form our opinion as to the start of the occurrence. Umar Khan opened an assault on Sher Afzal and caused him simple injury. He could not foresee the coming of the deceased to the spot, as such he cannot be held guilty of sharing the intention of causing the murder of Yaqub with his brother. Therefore, while maintaining the conviction and sentence of Umar Khan under section 324, P. P. C. his conviction under section 302,/34, P. P. C. is set aside.

11. Agha Khan, appellant, conducted in a cruel manner in delivering fatal blows on the vital part of the body of the deceased, who did nothing beyond having repaired to the spot in response to the assault on Sher Afzal P. W. by Umar Khan, appellant. Under the circumstances the claim of Agha Khan, appellant, of the right of private defence is just a futile attempt which is accordingly repelled. There is no extenuating circum stance to call for the lesser penalty. Therefore, while maintaining the conviction and sentence of Agha Khan, appellant, under section 302, P. P. C. his appeal is dismissed. Since Agha Khan did not cause any injury to Sher Afzal (P. W. 10), his conviction and sentence under section 324, P. P. C. is set aside, p he sentence of fine of Agha Khan appellant is also maintained. The sentence of death passed on Agha Khan, appellant, is confirmed. K. M. A. Appeal partly accepted.