Syed Hussain Mazhar Kaleem, J.--Above titled appeal has been directed against the judgment of District Court of Criminal Jurisdiction, Kotli dated 15.08.2011, whereby the appellant was convicted.
He was awarded 25 years rigorous imprisonment with Rs, 10,00,000/- compensation under Section 302, A.P.C. and two years simple imprisonment under the Arms Act.
2. Brief facts forming background of the appeal are that a case under Sections 302, A.P.0 and 13/20/65, of the Arms Act was registered at Police Station, Kotli on the complaint of Sajid Butt. It was reported that the complainant was resident of Pung-peeran and was running Zeeshan Hotel at Hafiz Aslam road, Roth. The employees Muhammad Ansar s/o Rafique, Rehmat Ali s/o Hayat Ali and Shafique s/o Munshi used to live there in a residential room. On 30-04-2011 at about 1.30 a.m Muhammad Shafique called and informed him that Rehmat Ali and Muhammad Ansar were fighting with each other. He came there and saw that Ansar who had an injury at his belly was lying dead. Rashid and Shafique told him that Rehmat Ali caused injury to the deceased with knife. On inquiry the convict-appellant told that the deceased had bad intention about him because of which he committed his murder. The matter was reported to the Police.
3. After completion of investigation, the challan was submitted before District Court of Criminal Jurisdiction, Kotli on 30.06.2011. During proceedings under Section 242, Cr.P.C. the convict-appellant pleaded that "Ansar was with me, he opened my string and tried to commit sodomy because of which I did this." The trial Court treated this statement as confession and convicted him in the aforesaid manner through the impugned judgment, hence this appeal.
4. Learned counsel for the convict-appellant argued that the impugned judgment was passed against law. The answer to the charge during proceedings under Section 242, Cr.P.C. was not a confessional statement. The trial Court failed to appreciate that he gave an explanation of the occurrence and did not confess the crime. It was established that the deceased opened his string and tried to commit sodomy, thus it was clear that he was intending to commit a heinous offence.
The appellant tried to save himself and picked up the knife which resulted into the occurrence, thus Section 96 of the A.P.0 was attracted and the conviction was not warranted in the circumstances, therefore, by accepting the appeal he may be acquitted of the charge.
5. On the other side, it was argued that the trial Court did not commit any error while passing the impugned judgment. Presence of the convict-appellant and the deceased at the place of occurrence at the relevant time was not disputed. It was clear from the statement of the offender that he committed the crime. The trial Court rightly relied upon the confessional statement. The case against the convict-appellant was proved on the ground of his confessional statement, thus no further evidence to prove his guilt was required in the circumstances. The impugned judgment being in accordance with law and facts of the case warrants no interference, therefore, the appeal may be dismissed.
6. We have heard the learned counsel for the parties and considered the record with care.
7. The prosecution alleged that on 30.04.2011 at about 1.30 a.m Rehmat Ali caused injury to Ansar resulting into his death. The charge was framed against the accused on 30.06.2011, upon which he pleaded that, "Ansar was with me, he opened my string and tried to commit sodomy because of which I did this." Since the trial Court treated the above mentioned statement as confession to the crime, thereafter examined the appellant on oath, closed the prosecution evidence on request of the public prosecutor and convicted him, thus we are seized with the material brought on record by the prosecution and the above mentioned facts for deciding the appeal.
"The primary object of the proceedings prescribed by Section 242, Cr.P.C. is to determine whether the accused pleads guilty to the charge or demands trial. It may also be added here that when the charge is framed and an opportunity is provided to the accused to state anything in his defence in explanation of the charge framed against him, he is at liberty to take up any plea he likes. He may raise a technical plea, may plead alibi or any of the exception available to him under the law.
Where an accused voluntarily pleads guilty to a charge, the trial Court can accept and act upon the same and convict him without recording the prosecution evidence but the admission should be of the facts constituting the offence. The whole confessional statement must be taken into consideration in its letter and spirit. Any defence plea raised by an accused during proceedings under the aforesaid provision of law has also to be considered while deciding fate of the case on the ground of such statement."
In the present case, during proceedings under Section 242 Cr.P.C. Rehmat Ali convict aged 16 year: took a specific plea alleging therein that "the deceased opened his string and tried to commit sodomy because of which I did this". The charge and the plea taken by the appellant is usefully reproduced:-- {{URUD TEXT}}
8. The trial Court while deciding the case failed to appreciate that the convict categorically alleged the deceased for attempting to commit sodomy which was a heinous crime. As per record the convict-appellant resisted, they quarreled and the victim suffered injury resulting into his death. It was for the prosecution to rebut it by producing evidence but it was not done and the prosecution evidence was closed 15.09.2011 on the request of public prosecutor. This clearly shows that the defence plea was not denied, it was accepted by the prosecution and as an admitted fact was to be taken into consideration for deciding the matter.
9. It will not be out of place to mention here that where there is reasonable apprehension of an offence affecting on a human body, the law gives the right of self defence to the person apprehending to be a victim against the person who attempts to cause harm to him. As stated earlier that during proceedings under Section 242 Cr.P.C. the convict-appellant alleged the deceased for making attempt to commit sodomy upon which they quarreled which resulted into the occurrence. The plea was not negated by the prosecution by producing evidence which shows that it was correct. There was nothing on record indicating that the convict was intending to cause bodily harm to the deceased or commit his murder, it follows that he was facing serious threat and was apprehending that the deceased shall forcibly commit sodomy with him, thus, the right of self defence was available to him at the time of occurrence.
10. While passing the impugned judgment District Court of Criminal Jurisdiction, Kotli failed to scrutinize the material brought on record by the prosecution. According to the record the occurrence took place on the night falling between 29/30, April 2011 at about 1.30 a.m. The complainant after having information came at the spot and reported the matter to the Police.
Thereafter, the dead body was taken to hospital. A perusal of the post-mortem report shows that the doctor examined the deceased on 30.04.2011 at 9.40 a.m., in his opinion, "the deceased died of the injury caused by sharp edge weapon, it was a sudden death and the time elapsed between death and the post-mortem was approximately three hours" thus the report negates the claim of the prosecution the the incident took place at 1.30 a.m and indicates that the time of occurrence was about 6.40 a.m. This creates a serious doubt regarding the claimed time of occurrence, arrival of the complainant at the spot and lodging the report at 1.30 a.m.
11. A careful consideration of the record reveals that Rehmat Ali convict aged 16 years faced the agony of trial and detention for two years, it was not rebutted by the prosecution that the deceased opened his string and forcibly tried to commit sodomy, upon which they quarreled. The convict was carrying a knife in his hand, during fight the deceased received the injury which resulted into his death. There was no evidence to prove that the appellant had any intention to cause any bodily harm to the victim or was intending to commit his murder. This clearly shows that the right of self defense was available to him at the time of occurrence and he exercised the same, thus the life imprisonment awarded to the appellant under Section 302, A.P.0 was not justified in the circumstances while the punishment of compensation was also without any legal substance as it was not provided under the provisions of the aforesaid section.
In light of the facts discussed above and to meet the ends of justice, the impugned judgment is amended. The sentence of life imprisonment is altered into the punishment of undergone sentence of imprisonment. The appeal filed by Rehmat Ali is accepted in the terms indicated above.