P L D 1988 Supreme Court 25 (PLP)

JAVID IQBAL, J.‑= Leave to appeal was granted in.this case in view of the fact that all the learned Judges of the High Court of Baluchistan at Quetta had differed on the nature of the offence committed, if any. There was also difference of opinion among the A learned Judges as to whether the retracted confession of the appellant in the circumstances of the case should or should not be relied upon. The appellant alongwith his father Abdul Qayum co‑accused was tried on a charge under section 302/34, PPC for the murder of Fadat Khan. The Sessions Judge Quetta vide judgment dated 30 November, 1980 convicted the appellant only under section 302 PPC and sentenced him to imprisonment for life. Abdul Qayum co‑accused was acquitted. On appeal in the High Court of Baluchistan there was a difference of opinion between the learned Judges constituting the Division Bench. Mr. Justice Zakaullah Lodhi, Acting Chief Justice was of the view that the confessional statement made by the appellant before the magistrate, although subsequently retracted by him at the trial could be relied upon. He therefore held that the appellant did act in the exercise of his right of self‑defence though he had exceeded the same. Accordingly he altered his conviction from that of under section 302 PPC to one under section 304 PPC and also altered his sentence thereunder from life imprisonment to 10 years' R.I. plus fine of Rs.5,000 or in default to undergo further R.I. for one year. Mr. Justice Abdul Qadir Choudhry the other learned Judge constituting the Division Bench however was of the view that the retracted confessional statement should not be made the only basis for the conviction and sentence of the appellant. Consequently he accepted the appeal of the appellant and set aside his conviction as well as sentence awarded to him by the trial Court. Since there was difference of opinion, the matter was laid before a third judge Mr. Juvice Jaafar Naeem who differed with both his brother Judges and agreed with the finding of the trial Court holding that the offence committed by the appellant was one of murder and not culpable homicide and therefore he was rightly punished under section 302 PPC. He accordingly maintained the conviction and sentence recorded by the trial Court, but agreed with Mr. Justice Zakaullah Lodhi on the point that even if retracted confession is relied upon it would itself be sufficient for conviction and sentence. The motive for crime was that there, was enmity between the deceased on the one side and the appellant as well as his father on the other. Few days before the occurrence the deceased had injured the brother of the appellant as a result of some dispute over money transaction. The occurrence took place on 6 September 1978 at about 11 a.m. on Jan Mohammad Road Quetta. The FIR was lodged by Sharbat Khan PW brother of the deceased on the same day at about 11‑30 a.m. in the Civil Hospital Quetta. The appellant was arrested on 7 September 1978 and a revolver was recovered at his instance. Two crime empties had been picked up from the spot. The recoveries of the crime empties from the spot as well as of the revolver from the appellant have not been supported by the witnesses. Therefore these have not been relied upon. According to the medical evidence on the person of the deceased were found these injuries: gunshot wound of entry on the back; wound of entry of .bullet on the back of right side; and gun shot wound of exit on the right side of the chest. From the medical evidence the trial Court drew the inference that since the injuries were on the back of the deceased and that these fire‑arm injuries also did not indicate that the shots had been fired from a close range, the plea of self‑defence advanced by the appellant was not made out. There is only one eye‑witness of the occurrence and that is Sharbat Khan complainant‑PW brother , of the deceased. The other important piece of evidence in this case is confessional statement made by the appellant himself which was recorded by Abdul Aziz Lasi, Sub‑Magistrate Quetta. This confessional statement is to the following effect:‑ It may be noted that in the FIR got recorded by Sharbat Khan complainant‑PW the motive given is that the deceased had been killed at the hands of the appellant because the deceased had injured the brother of the appellant namely Ashfaque Ahmad with a knife. According to the prosecution version on the fateful day Sharbat Khan P.W. alongwith the deceased was sitting in a hotel of Jan Mohammad Road Quetta. At about 11 a.m. the deceased went out of the hotel in connection with some work. After a few minutes on hearing shots outside Sharbat Khan PW came out of the hotel and rushed to the spot. He saw the appellant and his co‑accused escaping from the scene of crime while the deceased was lying injured and unconscious at some distance from the hotel. At that time the appellant was carrying .a fire‑arm while his co‑accused was empty handed. The confession made by the appellant under section 164 Cr.P.C. had been supported by the Magistrate who recorded the same, but at the trial stage: it was retracted and had not been relied upon by the trial Court although one of the learned Judges of the Division Bench, on appeal had relied upon it. In the trial Court the appellant in his statement denied that he had made any confession before the Magistrate. He stated that the police had tortured him. He was brought four times to the Court of the Magistrate for confessional statement but he refused. He further stated that he had been falsely implicated because of party politics. He produced two DWs in support of his alibi to the effect that at the time of occurrence he was sitting in the house of one Aman Khan in connection with Fateha Khawani and that Sharbat Khan PW was at Pashin and not in Quetta. Thus the nature of evidence brought on the record is this: The recorvey evidence is of no consequence. Sharbat Khan complainant‑PW who has been produced as an eye‑witness is brother of the deceased and due to the background of enmity is to be considered as an interested witness who should not be believed without corroboration. Furthermore in accordance with his own statement he did not see the earlier part of the occurrence. When he had rushed to the spot he saw the deceased lying unconscious and the appellant armed with a pistol alongwith his father running away from the spot. Then there is on the record confessional statement of the appellant recorded by the Magistrate under section 164 Cr.P.C. and this confessional statement has been supported by the statement of the Magistrate. It is evident that the trial Court and the learned Judges of the appellate Court did not believe the ocular testimony as well as the recovery evidence. The trial Court based the conviction and sentence of the appellant only on the retracted judicial confession as this was the sole piece of evidence against the appellant. The view taken by Mr. Justice Abdul Qadir Choudhry is that since the retracted judicial 'confession was uncorroborated and has even been contradicted by the medical evidence, and furthermore there was no injury on the person of the appellant, the statement of the appellant who was a self‑condemned liar, in the circumstances, must not be accepted without some corroborative piece of evidence. He, therefore, while arriving at the conclusion that since there was no evidence against the appellant and since the retracted confession cannot be made the sole basis of his conviction and sentence, proceeded to accept the appeal and set aside the conviction and sentence recorded against the appellant by the trial Court. So far as Mr. Justice Jaafar Naeem is concerned, i.e. the learned 3rd Judge before whom the matter was placed due to difference of opinion, his reasoning is the same as that of the trial Court. He while relying on the retracted confessional statement maintained the conviction and sentence of the appellant and proceeded to dismiss his appeal. Mr Justice Zakaullah Lodhi, Acting Chief Justice on the principle laid down in PLD 1964 SC 813 arrived at a different conclusion while completely accepting the confessional statement in this case in the following words: "However, we do not agree with him (trial judge) that the right of self‑defence was not available to the appellant. The state of mind of the appellant who was attacked twice and in the circumstances that there were earlier threats of 'killing and that his brother had been severely injured by the deceased a few days back and the deceased was also a person who had the reputation of being a 'Gunda', cannot be excluded from consideration. What preceded the actual firing has also not come out from the mouth of any witness, hence the version of the appellant is to be taken into consideration in entirety. Reading the confession as a whole, it is manifest that there was great apprehension in the mind of the appellant that he would be killed by the deceased or severely injured like his brother Ashfaque Ahmed, therefore he used to keep the pistol with him. Though the amount of apprehension should not have normally been so grave in the circumstances narrated by the appellant, but then it is a question of an individual's frame of mind of his thinking. So we would extend the benefit of the right of self‑defence to him . . . . . . . .. . ." After careful perusal of the record we agree with these findings but do not agree with the following portion of the findings: " . . . . though it was clearly over‑exercised." If the retracted confessional statement of the appellant is to be relied upon then it l must be relied upon in its entirety as there was on record no evidence to the effect that the right of self‑defence was overexercised. Thel learned Acting Chief Justice has observed that it was manifest that there was great apprehension in the mind of the appellant that he would be either killed or severely injured by the deceased. It is reasonably probable that the deceased had taken out a knife in order to attack the appellant as stated in the confessional statement and it was due to the great apprehension in the mind of the appellant that he would be killed or severely injured like his brother that he took out the firearm which he always carried due to this fear and fired at the deceased while he might have turned back on seeing the firearm having been drawn at him. In such a state of panic when the right of self‑defence is being exercised, the action on the part of the person cannot be measured in golden scales and this principle had been reiterated by this Court on numerous occasions. Thus we are of the considered view that in the light of this piece of evidence on the record, the case of the appellant was completely covered by Exception II to section 300 PPC. In the circumstances his conviction under section 302, P.P.C. arid sentence recorded thereunder were liable to be set aside. It is ordered accordingly. The result is that this appeal is allowed. The appellant is acquitted of the charge. He should be set at liberty forthwith if not wanted in any other case. M.B.A./M‑225/S Appeal allowed.