SHAFI-UR-REHMAN. J.-Leave to appeal vas granted to the two convicts under section 302/34, P. P. C. To examine whether their conviction could follow from their statements recorded under section 342, Cr. P. C. Which alone was held to form the basis of their conviction. In the alternative, whether it was not a case of their exceeding the right of self-defence and hence punish--able under section 304, Part 1, P. P. C. And not under section 302, P. P.
C.
2. The two appellants alongwith seven others were charged for the murder of Nazar Muhammad on the 4th of June, 1972 at 5 p.m. In the limits of Police Station Haveli, District Sahiwal. The report of the crime was lodged by Muhammad Hanif (P. W. 13), a brother of the deceased. He alleged that he alongwith the deceased had caused injuries to the appellant Faiz about three years before the murder of Nazar Muha mmad for which both were tried and acquitted. This was followed about eight days before the occurrence by a dispute between the deceased and the appellant Faiz over the silt clearance from a watercourse. At about 5 p.m. On the day of occurrence he alongwith the deceased was returning to the well of Nur Samandwala and they were on the path and had reached near the house of Ahmed when the two appellants armed with Sotas and seven others, one of whom had a gun and two others hatchets came out, intercepted and attacked them. Faiz appellant followed by Sarwar have lathi blows to the deceased and when he had fallen on the ground others also inflicted numerous blows. It was also alleged that the injured Nazar Muhammad was removed by the appellant and their companions from the scene and taken to their own premises. It was through the intercession of Muhammad Yar that the complainant party was able to obtain the return of the injured Nazar Muhammad. He expired at about mid-nigh t and a report of the matter was made at the Police Station at 7 a.m., the Police Station being 10 miles from the spot. At the autopsy were found in all 14 injuries comprising contused wounds and swellings a few abrasions, some of them multiple, and that at least six of the injuries were grievous and two of them suf ficient in the ordinary course of nature to cause death.
3. The two appellants denied the prosecution case as contained in the first informat ion report and brought out in the evidence, Faiz appellant made a detailed statement about the occurrence with which the other appellant concurred.
It was as follows :- "about 8/10 days before the occurrence, Nazar deceased approached me that whenever it was his turn of water , he should be permitted to use the Khal, which I was already using for my tubewell water . I told him in the presence of Ahmad Yar that he could use the Khal and I would on that day not try to work my tube-well, but that would be only on the day when it was his personal turn. There was no quarrel or fight on that day and this decision was amicably arrived at.
On the night of 4-6-1972 Nazar Muhammad who resides opposite to our house came to our house and demanded of me that as he had borrowed water from Ghulam Nabi and Sardar A.I etc. I should not work my tubewell on the following day. I told him that this was the agreement arrived at earlier which provided that Nazar could only take the water of his personal turn when I should stop my tubewell and that he could not compel me to desist from working my tubewell, when be wanted to use the Khal for the borrowed water from other persons. Nazar lost his temper and abused me while in my house. I too abused him in return and turned him out from my house. He was then carrying a sota with him. Ahman Mueen who lives next door came there as well as Sarwar accuses The two asked him not to abuse but he con--tinued hurling abuses When we 'too exchanged abuses, he assaulted us and wanted to give further blows when in self-defence I, Ahman and Sarwar accused also gave him some blows. The other accused were not present at that time. The occurrence took place during the night. The F.1. R. Was recorded at the spot after great delay . I have been falsely implicated. Said Ahman had died after the occurrence. The P. Ws. Are closely related to each other and were not present at the time of occurrence."
4. The trial Court believed the motive for the occurrence as given out by the prosecution witnesses, disbelieved the recoveries of the weapons as they were found not connected with the crime, and believing the ocular evidence convicted five of the accused persons facing trial including the two appellants while acquitting four others.
5. The learned Judge in the High Court considered the motive to be a factor as much against the prosecution witnesses for prompting a false charge as against the appellants and their companions for taking revenge. But considering the three eye-witnesses to be closely related a cautious scrutiny of the other evidence was considered necessary . On the basis of medical evidence it was concluded that there had been inordinate delay in lodging the report and the ocular evidence was altogether discarded. It was also con--sidered impermissible that corroboration of a part of the prosecution version be obtained from statement of accused and made the basis of conviction. The observation in the context was "it is well-settled that the prosecution must stand on its own legs and the statements of the accused cannot be used for supplementing the prosecution evidence". Thereafter the learned Judge proceeded to consider the liability of the appellants and others "on the assump--petition that the defence version as put forward by them is correct". Their version was then, scrutinized and the following conclusion drawn :- "The deceased sustained fourteen injuries out of which six were grievous in nature. After receiving the first one or two grievous injuries he could not have been able to stand on his legs and this leads to the irresistible conclusion that Faiz and Sarwar appellants continued giving blows when he was lying on the ground. The right of self-defence, if any, had terminated when the deceased was knocked down, therefore, the injuries which he received thereafter at the hands of these appel--lants cannot be considered to have been given in exercise of the right of private defence. Section 99, P.P.C. Lays down that the right of private defence in no case extends to the inflicting of more harm than is necessary to inflict for the purpose of defence. If a person ,while exercising the right of private defence causes more harm than is neces--sary , he exceeds the right of self-defence and in such a case Excep--petition 2 to section 300, P. P. C. Is available if there is no intention to cause more harm than is necessary for the purpose of defence. In the instant case the right of private defence stands completely negatived because the evidence on the record unmistakably shows that both Faiz and Sarwar appellants intentionally caused more harm than was necessary for the purposes of defence. They gave so severe beating to the deceas ed even after h; had fallen down that the only reasonably inference is that they assaulted him more out of revenge than for the sake of defending their persons, therefore, they cannot be heard to say that they had acted in the exercise of the right of private defence or had merely exceeded that right."
6. The two appellants on their own statements were convicted under section 302, P. P. C. And sentenced to life imprisonment. As regards the other convicts who had made no such statement and simply denied their participa-- petition, an order of acquittal was recorded. This factual background has given rise to the proposition of law for examining which leave to appeal was granted in this case.
7. The learned counsel for the appellant submitted that it is a settled law that where prosecution evidence is rejected as unworthy of credit and the only material forthcoming on the record is found in the statement of the accused then that statement must be accepted in its entirety and not in parts. According to him if this principle is kept in view the two appellants are entitled to acquittal because they explicitly stated that they had acted in self -- defence. There were no other proved fact to test their statement nor could the crime scene be constructed from such a statement to supply any intrinsic test of its. Correctness. For submitting so reliance was placed on the following cases:-
(1) Balmakund v . Emperor AIR 1931 All. 1.
(2) Sher Gul v . Emperor AIR 1935 Lah. 671.
(3) Rahim Bakhsh v . Crown PLD 1952 FC 1 .
(4) Zakaria v . State 1976 P Cr. L J 167.
The learned counsel for the State on the other hand contended that it was permiss ible to test the statement of the accuse3, to reject a part of it and to accept another . For this proposition reliance has been placed on the decision in Imamuddin v . States (1975 P Cr. L J 948).
8. The judgment of the High Court makes it abundantly clear that the ocular evidence was totally discarded and the only material utilized by the Court for determining the guilt of the appellants was the "defence version". There were no proved or established facts to test the defence version. This distinguishes the decision in Imamudain's case which had proved or established facts. In Balmakund case a reference to Full Bench of the High Court became necessary because the Judges hearing the case found the exculpatory part of the statement of the accused to be so unworthy of belief that no Court could act upon them. The Full Bench noted that during the last one hundred years the following two rules of criminal jurisdiction have been consistently observed without any attempt to engraft as exception :- (a)where there is other evidence a portion of the confession may, in the light of that evidence, be rejected while acting upon the remainder with the other evidence.
(b)where there is no other evidence, the Court cannot accept the inculpatory element and reject the exculpatory element as inherently incredible. <p.m> </p.m>
9. The above view is based or. Sound reason. The accused is ques--tioned only on matters found incriminating against him in the evidence. His reply or narration is not tested or completed ether by cross-examining him or by putting him further questions. The state of his mind is not proved. His bare statement about it exists on record, for whatever its worth. In the absence of any other evidence it has to be accepted as a fact, though apparently not fully established. Applying this principle consistently followed by Courts, the appellants, on their version of the occurrence, which was the only version left in the field to fall back upon, were entitled to acquittal. The appeal is, therefore, allowed. The conviction and sentence of the appellant is set aside. They are to be released forthwith from the prison unless their detention is required in some other case. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.