P L D 1954 Baghdad﷓ul﷓Jadid 9 (PLP)

FAIZ MUHAMMAD, C. J.‑The Additional Sessions Judge Rahimyar Khan has convicted Muhammad Yaqoob son of Muhammad Ishaq aged 25 years resident of Sadiqabad of an offence under section 302 P. P. C. for causing the death of one Muhammad Ali aged about 26 years and sentenced him to trans portation for life. Muhammad Yaqoob has appealed to this Court against his conviction and sentence. Shah Muhammad a relative of Muhammad Ali deceased has also filed a revision petition for enhancement of Muhammad Yaqoob's sentence. It is admitted by the parties that the death of Muhammad Ali was caused by injuries inflicted on him by Muhammad Yaqoob appellant. They are however at variance with each other about the time and the scene of occurrence and the circumstances in which it took place. The prosecution alleged that the offence had been committed by the appellant after premeditation and without any grave and sudden provocation. The defence on the other hand alleged that the appellant had seen his wife Mst. Khurshid Begum in the arms of the deceased and therefore losing his self- control gave the deceased a chase, overtook him and inflicted injuries on him which eventually proved fatal. For a proper appreciation of the case it is necessary to state the two versions According to the prosecution Muhammad Yaqoob appellant suspected the deceased of either having illicit intimacy with his wife Khurshid Begum or of having made indecent overtures to or assault on her, and that in order to avenge his honour he the appellant sent her away to her father's house a day before the present occurrence. He is further alleged to have purchased knife Exh. P‑1 on that day and on the following morning i.e. On the 8th of June 1952 attacked the deceased with the knife when the latter was returning to his house from Sabzi Mandi on a bicycle. Muhammad Yusuf P. W. 6, Sultan P. W. 7, Abdul Ghafoor P. W. 9 and Muhammad Ali P. W. 22 deposed that they had seen the occurrence. Muhammad Yusuf and Sultan P. Ws. further said that they caught hold of the accused on the spot when he confessed his guilt to them by saying that on the preceding night i.e. night between the 6th and 7th of June the deceased had misbehaved towards his wife and that therefore he had murdered him. The appellant is also said to have expressed the intention of his going to the Police Station to report the occurrence. On this assurance his captors are said to have released him. It is in evidence that after the occurrence the appellant did go to the Police Station and surrendered knife Exh. P‑1 to the police officer there. The defence version of the occurrence is to the effect that on the fateful day the appellant had as usual gone to the mosque of Rais Ghazi Muhammad after sehri time to offer Tahajjad and morning prayers and to attend Dars‑i‑Quran. After the morning prayer however he discovered that his Hamail (copy of holy Quran) was not in the mosque and therefore he returned to his house to fetch it so as to be able to attend the Dars. On reaching his house thus expectedly he saw that the deceased was holding his wife Khurshid Begum in his arms in the open space of his Chobara. Being surprised in this manner the deceased is said to have taken to heels dropping knife Exh. P‑

1. This scene is said to have enraged the appellant beyond control. Therefore picking up the knife left by the deceased he the appellant chased the deceased and overtaking him a short distance away from his house inflicted injuries on him which resulted in his death. In his statement before the Committing Magistrate which was brought on to the Sessions file, the appellant also said that when he overtook the deceased the latter turned round, gave him two fist blows and tried to snatch the knife from him. This, according to the appellant, caused an apprehension in his mind about his own life and therefore in self‑defence he inflicted injuries on the deceased. The defence version is supported by six witnesses including Mst. Khurshid Begum wife of the appellant. The prosecution and the defence versions also differ about the exact time and locality at which the appellant assaulted and injured the deceased. The prosecution alleged that the occurrence took place after sunrise in front of the shop of Sultan P. W. while the defence alleged that it took place before sunrise in front of the shop of Nizamud‑Din, the distance intervening between the two sites being of a few yards. The two places are visible from each other. It is obvious that if the prosecution version is accepted as true the offence of the appellant must fall under section 302 P. P. C. But if on the other hand the defence version is credited with veracity the act of the appellant tray attract the application of one or more of the general or special exceptions given in P. P. C. Viewed in this light the case was a simple one inasmuch as its decision depended upon the acceptance of one or the other of the versions. It has however been greatly complicated by the learned Additional Sessions judge's treatment of the evidence led by the parties before him. He has discarded the entire evidence, barring the evidence of medical and other official witnesses, on the ground that such evidence was not reliable. He dismissed the evidence of direct witnesses on the ground that such witnesses were either related to the deceased or were men of no substance or henchmen of the police and also on the ground that the story told by them was highly improbable and unbelievable. He the learned Additional Sessions Judge has therefore based the conviction of the appellant on the evidence of defence witnesses, other than Mst. Khurshid Begum whom he has dis believed and on confession said to have been made by the appellant to defence witnesses coupled with his confessional statement before the Committing Magistrate. While relying on the evidence of defence witnesses and on the statement of the accused before the Committing Magistrate, the learned judge however believed only the inculpatroy parts thereof and disbelieved the exculpatory ones. There is also in the case a dying declaration which the deceased made to a Magistrate. The learned judge disbelieved that also on the ground that when making it the deceased was surrounded by his relatives who might have prompted him to make it. Khawja Nazir Ahmad counsel for the appellants opened his argument by saying that since the learned Additional Sessions judge had disbelieved the entire prosecution evidence, he had nothing to say on that score beyond observing that the High Court should not upset the learned trial judge's findings about it. I am afraid I am not prepared to subscribe to this view as a general proposition. While I agree that ordinarily the High Court should accept the opinion of the trial judge about oral evidence led before him for the reasons that such judge has the opportunity of observing the demeanour of the witnesses, I am not aware of any provision of law which precludes the High Court from scrutinizing the evidence of the parties and coming to an independent conclusion. In 8 P R 1868, 6 P R 1898, 32 Cr. L J page 271 and A I R 1938 Rang page 45 it was held that the Appellate Court should come‑to an independent conclusion as to facts on record. Such independent conclusion is possible only by a careful scrutiny of the evidence on record. I will give the result of such a scrutiny a little later. Khawja Nazir Ahmad further urged that in a case like the present in which conviction is based on the evidence of defence witnesses or on the confessional statement of the accused it is improper to accept only the inculpatory parts of such evidence or statement and reject the exculpatory parts He contended that such evidence or statement or both should be taken into consideration in their entirety and that there should be no picking and' choosing of parts thereof to suit the needs of the prosecution. I am partially in agreement with this contention of the learned counsel. His contention consists of two parts one relating to statements of defence witnesses and other relating to the confession of an accused person. As far as the statements of defence witnesses are concerned I am not quite sure that in the absence of any credible evidence produced by the prosecution such statements can form basis for conviction. The initial burden of proving the guilt of an accused person is on the prosecution. This burden can be discharged by direct or circumstantial evidence. But if no such evidence is forthcoming then basing conviction on the statements of defence witnesses Would in my opinion amount to requiring as accused person to prove his innocence which is against all accepted principles of criminal law. If however credible evidence is produced by the prosecution then defence evidence can be taken into consideration as corroborating it. But assuming for the sake of argument that in the absence of credible prosecution evidence conviction can be based on defence evidence, which as stated above cannot and should not be done, then such evidence should be taken into consideration in its entirety and not only inculpatory parts of it. As far as the use of confession made by an accused person for purposes of conviction is concerned more or less the same principle applies. In other words if reliable evidence which can form basis of conviction has been produced by the prosecution then confession of the accused person becomes a valuable corroborative piece of evidence and in that case while taking such confession into consideration the trial judge is at liberty to accept and act upon such parts of it as are in his opinion true. But if on the other band the prosecution is unable to produce any reliable evidence or if the Court disbelievers the evidence produced by the prosecution and reliance is placed for conviction on confession alone then the Court should accept such confession as a whole and not only inculpatory parts thereof. There is a huge volume of case‑law in support of this view. The following rulings can be read with advantage in this connection :‑ A I R 1935 Lah. p. 671, 35 Cr. L J p. 248, 36 Cr. L J page 292, 32 Cr. L J p. 362, 26 Cr. L J p. 1143 and A I R 1942 Lah.

271. It should be borne in mind that a confession is evidence against as well as evidence for the accused person concerned and therefore the whole of confessional statement including inculpatory as well as exculpatory parts thereof must be taken together. So much about the arguments advanced by Khawja Nazir Ahmad on legal aspect of the case. Mr. Manzoor Qadir also devoted much of his time to legal aspect of the case. He took Khawja Nazir Ahmed upon his words and said that he wanted the Court to take the confession made by the accused in its entirety. He contended that taken in its entirety along with other admitted facts it did not entitle the appellant to the benefit of any general or special exception. Position taken up by him was somewhat as follows :‑ It is admitted that injuries as a result of which Muhammad Ali died were caused by Yaqoob appellant. The medical evidence shows that these injuries were caused on a vulnerable part of the body of the deceased. From this Mr. Manzoor Qadir concluded that the intention of the accused was to cause the death of the deceased. This being the position, he contended, the burden of proving circumstances which could attract the appli cation of any general or special exception lay on the appellant who had failed to discharge it. Taken as an abstract proposition of law no fault can be found with Mr. Manzoor Qadir's reasoning. Section 105 of the Evidence Act requires that it is for an accused person to prove that his case is covered by any of the general or special exception. But I hope the learned counsel will concede that quite independently of any evidence produced by an accused person if the circumstances of a case indicate that he acted under grave and sudden provocation or in the exercise of his right of private defence then he the accused would be entitled to the benefit of one or more of the exceptions given in P. P. C. Dealing with the confession made by Muhammad Yaqoob appellant in the course of his statement in the Committing Magistrate's Court Mr. Manzoor Qadir contended that even taken as a whole it did not entitle the appellant to the benefit of any exception. The relevant portion of the statement is as follows :‑ "I used to offer Tahajjud prayers in the mosque of Rais Ghazi Muhammad daily. After that I used to offer my morning prayer there and remained there for attending Dars‑i‑Quran and returned to my house later. On the day of occurrence I went to the said mosque as usual and offered Tahajjud and morning prayers. Thereafter I returned to my house to fetch my Hamad which I had forgotten to carry with me when going to the mosque. I wanted my Hamail for attending the Dars. It was still a little dark at the time. On reaching my house I saw the deceased standing in my house holding my wife lost. Khurshid Begum in his arms. On seeing me he took to his heels dropping knife Exh. P. 1 there. I picked up the knife and ran after him. I overtook and caught hold of him in the main and Railway Bazar. The deceased dealt two or three fist blows to me and tried to snatch the knife from my hand. This created an apprehension in my mind that he would either cause injury to me or kill me. Therefore in order to weaken him and to save my life I inflicted two injuries on him. I do not know the seat of injuries caused by me. I had no intention of causing the death of the deceased or inflicting fatal injuries to him. But when I saw the deceased with my wife I got enraged and it was because of that that I inflicted injuries to him. I also inflicted the injuries to save myself from harm. After it I went straight to the police station but the police people there did not take down my report and detained me there. The day had dawned by this time". As stated above Mr. Manzoor Qadir urged that even taken as a whole this confession of the appellant does not establish that he acted under the influence of grave and sudden provocation. Minutely analysing this statement of the appellant Mr. Manzoor Qadir said that it consisted of two distinct parts. The first part related to the appellant seeing the deceased in his house holding Mst. Khurshid Begum in his arms. This according to Mr. Manzoor Qadir was not enough to cause grave and sudden provocation to the appellant because he did not see the deceased committing sexual intercourse or rape with his wife. I am afraid I can not see eye to eye with the learned counsel in this. I for one am not prepared to believe that a man can suddenly see his wife in the arms of any stranger without becoming gravely provoked and losing his self‑control. Therefore if this part of the appellant's statement is accepted as true then there can be no question that he received provocation of a kind which would in normal circumstances make a person lose his self‑control which as urged by Mr. Manzoor Qadir in the essence of exception No. 1 of section 300 P. P. C. Nor can provocation thus received be said to be self‑sought unless and until there is something on record to prove that the appellant knew that if he went to his own house at a particular time he would find his wife in the arms of a stranger or even a known paramour of hers. The second part of the appellant's confessional statement according to Mr. Manzoor Qadir, consists of the appellant giving a chase to the deceased, overtaking him and causing him injuries as a result of which the latter died. The learned counsel contended that even if the appellant had seen the deceased in circumstances alleged by him he had time to cool down and that after the deceased had left the appellant's house the latter could not be said to have continued to be under the influence of provocation. In order to make out his point the learned counsel laid stress upon part of the appellant's statement in which he had said that when he overtook the deceased the latter turned round and gave him fist blows and tried to snatch the knife from him. This, the counsel contended, was not enough to entitle the appellant to the exercise of right of private defence against the deceased who had been obviously unarmed. This may or may not be so. What we have to see is whether the accused had really bad time to cool down and had actually cooled down. I am not prepared to accept the position that any hard and fast time limit can be imposed upon the duration on provocation which a person has received. Much must depend upon the circumstances of each individual case. In the present case if the confession made by the appellant is accepted as true then the time that elapsed between the moment when he received the provocation and the moment when he caused the injuries to the deceased was so short that it could not be reasonably held that he had had time to get over the provocation. The mere fact that the appellant said in his statement that when he overtook the deceased the latter turned round, gave him fist blows and tried to snatch the knife from him and that apprehending danger to his own life the appellant caused injuries to the deceased is not enough to hold that he had had time to cool down or had actually cooled down. The learned Advocates for the parties devoted almost their entire arguments to legal aspects of the case. Khawja Nazir Ahmad did not consider it necessary to take us through the evidence on record. Mr. Manzoor Qadir drew our attention to the evidence of only three prosecution witnesses namely Sultan Mahmood P. W. 7, Faqir Muhammad P. W. 10 and Khushi Muhammad P. W. 19 and urged that there was no justification for the learned Additional Sessions judge to reject their evidence. Sultan Mahmood P. W. 7 appeared as a direct witness and claimed to have seen the occurrence from a distance of two paces only. The learned Additional Sessions judge has disbelieved his evidence on what appears to us, insufficient grounds. His, the learned trial judge's finding that the witness did not have any shop near the place of occurrence because he was unable to give its number, does not appeal to us. It is not clear to what numbers the learned judge referred. If he referred to numbers given by Census Authorities then very few people can be expected to know them. But if the numbers he had in mind were those given by Municipal Authorities then the question arises whether the witness was the owner of the shop concerned or only its occupier. In the latter case he would not be expected to know or remember the number. The evidence of this witness is supported by the recovery of a bicycle which the deceased was said to be riding when he was attacked and two melons which he was said to be carrying. The recovery of those two articles is important because no one came 'forward to claim the bicycle during the investigation and it is still in the custody of the Court. Another reason given by the trial judge for disbelieving the evidence of this witness is that the time of occurrence given by him was after sunrise and not just before sunrise. From this the learned judge has concluded that if the occurrence had taken place after the sunrise all the shops in the bazar would have been opened and the occurrence would have been witnessed by many shopkeepers. Here again the trial judge has drawn too much upon imagination. He overlooked the fact that the occurrence took place in the month of Ramzan when the shops are not generally opened very early. Yet another reason given by the learned trial judge for disbelieving the evidence of this witness is that he and other alleged eye witnesses having captured the appellant on the spot allowed him to escape. This defect, if it can be called .a defect at all in the witness's testimony was explained by him when he said that the appellant had told them that he himself wanted to go to the police station to make the report which he in fact did. After a careful scrutiny of the evidence of this witness I find myself in disagreement with the learned Additional Sessions judge's finding about it. In my opinion the witness told the truth in Court and if there are any discrepancies in his evidence they are of a kind which are generally found in the evidence of illiterate or semi‑literate person. The learned trial judge also disbelieved the evidence of Muhammad Yusuf P. W. 6, Abdul Ghafoor P. W. 9 and Muhammad Ali P. W. 22 who claimed to have also seen the occurrence: The names of these three witnesses are given in the F. I. R. which was made without delay. The learned judge's only reason for disbelieving Muhammad Yusuf and Abdul Ghafoor is that they lived 6 to 15 miles away from the scene of occurrence and‑ had no business to be at Sadiqabad so early on the day of occurrence to make purchases. In my opinion this by itself is no ground for disbelieving their evidence. Muhammad Ali is no doubt a relative of the appellant. If he had been the only eye witness in the case there would have been some justification for disbelieving his evidence. But he is supported by other three witnesses and by the recovery of bicycle of the appellant on which he was riding and also by the presence of blood stains on a stone lying close to the scene of occurrence. I am not prepared to believe that these articles were brought to the spot after the occurrence and left there unclaimed as the learned trial judge has held. Faqir Muhammad P. W. 10 is the shopkeeper from whom the appellant was said to have purchased the knife Exh. P‑

1. The learned trial judge's reason for disbelieving his evidence is that he could not give the names of persons to whom he sold other similar knives. The question however is whether or not any one of these persons had been produced before the witness for identification. It is not possible for shopkeeper to say generally who made purchases from them. But if a particular individual is produced before a shopkeeper and asked whether the former purchased a particular article from him he is able to remember the sale. In my opinion there is nothing inherently improbable in the evidence of this witness. Khushi Muhammad P. W. 19 deposed that on the day of occurrence he met the appellant when the latter was going to the police station with an open knife in his hand and stains of blood on his clothes. On being asked as to what had 'happened the appellant is said to have told the witness that he bad killed Muhammad Ali deceased‑ because on the preceding night he Muhammad Ali bad mis‑behaved towards the appellant's wife and escaped. The learned trial judge disbelieved the evidence of this witness also on the ground that the place where he is said to have met the appellant was on a longer route from the witness's house to the jungle where he had gone to ease himself. The learned Judge overlooked the fact that this witness's evidence is corroborated by subsequent events namely appearance of the appellant at the police station and the confessional statement made by him in the Committing Magistrate's Court. There is also in the case a dying declaration made by the deceased to Ch. Muhammad Din Tehsildar Magistrate 2nd class. The learned trial judge disbelieved it on the ground that at the time of making it the deceased was surrounded by his relatives and friends who might have prompted him to make it. I am afraid I cannot persuade myself to agree with this kind of reasoning. It is significant that in the dying declaration there is reference to Muhammad Yusuf and Sultan P. Ws. who are said to have intervened in the scuffle. The deceased also stated in it that he did not know or remember the names of other persons who had collected there. It is true that in his declaration the deceased said that he bore no enmity towards the appellant. From this we are asked to believe that if he the deceased, bad been seen by the appellant in a compromising position with his wife on a previous occasion he would have said so. This is really expecting too much even from a man about to die. There is also prosecution evidence on record which in my opinion connects the appellant with the commission of the offence in the manner and at the time and place of occurrence as alleged by the prosecution. But the evidence of witnesses with whom I have dealt with above was in my opinion reliable enough to base conviction upon, particularly when the factum of having caused injuries to the deceased had been admitted by the appellant. It was in my opinion not necessary for the learned Additional Sessions judge to ignore all this evidence and base conviction of the appellant under section 302 P. P. C. on defence evidence. In spite of what has been said by him in the judgment my scrutiny of the defence evidence is that the story which it reveals is highly improbable. In order properly to appreciate its implications it is necessary to start with a topography of the house of the appellant. It is admitted that the appellant and his wife lived on a chhobara accessible by a staircase. If the defence version is to be believed then the appellant must be presumed to have seen the deceased holding Mst. Khurshid Begum in his arms when he the appellant reached the top‑end of the stair‑case, the only passage through which alone the deceased could have escaped. That being the position the first fight between the appellant and the deceased should have taken place in the open space in front of the chhobara or in the stair‑case itself. The fact that nothing of the sort happened and the appellant allowed the deceased to walk down the stair‑case is enough to make one feel that the story of sudden and grave provocation put forward by the defence was to say the least an after‑thought. Before concluding I may also remark that the learned Additional Sessions judge seems to have attached undue importance to the exact time of occurrence given by the prosecution witnesses on the one side and the defence witnesses on the other. It is a notorious fact that people in this country are very indifferent to the time of the day or night when an occurrence is said by them to have taken place. The expressions and do not ordinarily mean different times to them. For all the reasons given above I hold that there was credible prosecution evidence on record to sustain the conviction of the appellant under section 302 P. P. C. and his admission to have caused the injuries lent corroboration to it. Therefore I uphold his conviction under that section. The question of sentence however requires serious consideration because there is a petition for its enhancement before us. The appellant is shown to be 25 years of age. The mere youth of an offender is by itself no ground for not awarding capital sentence. In the present case however the appellant had received an affront to his manhood by the illicit intimacy of the deceased with his wife. This coupled with the appellant's youth must be presumed to have made him smart under it for a long time. He did receive provocation which though certainly not sudden was grave enough to justify the awarding him lesser penalty prescribed for the offence. Therefore while upholding his conviction I would maintain the sentence given him by the trial Court. A. H. Conviction upheld.