Khuda Bkhsh Marri, J.--This appeal was originally heard and dismissed by a learned Single Judge of this Court by his judgment dated 31st January, 1968 as regards to the present appellant Muhammad Tufail. Subsequently, however, this appeal was placed before us for rehearing it.
During the course of arguments it was brought to our notice that there might be judicial pronouncement by this Court with regards to re-hearing of criminal appeals which have been disposed of previously by a Single Judge of this Court. After calling for the records of the case we find Criminal Appeals Nos. 103 of 1966, 394 of 1966 and J-18S of 1967 were disposed by a Division Bench of this Court by its judgment dated 21st January 1970. The question before that Bench as before us is precisely the same, that is whether we are competent to re-hear the appeal which has already been disposed by a learned Single Judge? This question has been exhaustively discussed by the Division Bench in its judgment referred above and it was pointed out by their Lordships that the same question was considered by another Division Bench in the case of Muhammad Ashfaq v.
The State (Criminal Appeal No. 154 of 1966, decided on 26th August 1969), wherein it was observed as under: "The objection to the jurisdiction of the Single Benches which have decided these live appeals, is founded on the rule mention ed above which relates the jurisdiction of the Judges of the High Court, and cannot be taken to go further than that. In this respect, a distinction between the jurisdiction of a Judge of this Court by reason of his appointment as such, is distinguish able from the jurisdiction which he is to exercise in accordance with regulation made for this purpose. The observations of a Full Bench of this Court in Muhammad Nagin v. Haji Nawab Khan PLD 1962 Lah. 722 at 726 and those of the Supreme Court in Shamsuddin v. Capt. Gauhar Ayub PLD 1965 SC 496 at 501, appear to support this distinction.
Our attention was drawn by the Additional Advocate-General to section 410, Cr. P C. in support of his argument that in such appeals jurisdiction is exercised by Judges of this Court as members constituting the Court. The jurisdiction is conferred by this section on the High Court and not on individual Judges or Benches. He contended that the members of this Court exercise jurisdiction as Judges of the High Court; therefore, the basic jurisdiction which they exercise cannot be said to be detracted by reason of the regulations which are made for their proper exercise."
2. Following the above judgment, their Lordships were pleased to told in their judgment, dated 21st January, 1970 "in the result, we hold that the appeals stand disposed of in so far as this Court is concerned and no further action is necessary to be taken."
3. In view of the above judgments of two Division Benches of this Court we have no other alternative but to follow them and hold that the appeal under consideration stands disposed of so far as this Court is concerned and no further action seems to be necessary.
Dorab Patel, J.--I respectfully agree with the conclusion of ray learned brother Khuda Bux Marri, J., but I consider it my duty to refer to the merits of the case of the appellant Muhammad Tufail.
2. The appellant and his brother Abdul Aziz were tried and convicted by an Additional Sessions Judge, Nawabshah for the murder of Rohilo deceased and sentenced to transportation for life. At all stages of the proceeding in the lower Courts, the case of the prosecution was that on the day of the occurrence there was a sudden quarrel between Rohilo deceased, on the one hand, and the appellant and his brother on the other, on account of differences about the tethering of cattle, that the appellant's brother had gone to his house, come back with a spear and attacked and killed Rohilo with the spear, whilst the appellant had held Rohilo in his arms or grappled with him. This case was based on the evidence of four eye-witnesses, Muhammad Iqbal who lodged the F. I. R., Hashmat, the brother-in-law of the deceased, Abdul Ghafoor and Abdullah, and according to all the eye-witnesses, it was the appellant's brother who had killed the deceased with a spear whilst the appellant had only grappled with the deceased; therefore for the corroboration of its case against the appellant the prosecution had relied on minor injuries to his finger and shoulder, and when the appellant was questioned about them in the Sessions Court under section 342, Cr. P. C. he stated that he had been injured because Rohilo had attacked him. He further said : "Iqbal asked Roliilo to attack me. Rohilo had hatchet. He struck me and it fell on my finger. Then he struck me second time, it fell on my shoulder. I picked up lathi. Again says that 1 picked up spear and struck at Rohilo who fell down. Iqbal, Ghafoor, Shall and Abdullah were there."
The learned Additional Sessions Judge not believe the appellant's plea of self-defence and observed in para. 30 of his judgment: "I am of the firm opinion that it is accused Abdul Aziz and not Muhammad Tufail who had stabbed Rohilo at the time when tire latter was in the grips of accused Muhammad Tufail. Both the accused had made the common cause and intended to kill Rohilo "
The learned Additional Sessions Judge, therefore, convicted the appellant and his brother under section 302, P. P. C. But as he held that the death of Rohilo had been caused on account of a sudden quarrel, he sentenced both of them to transportation for life.
3. Both the appellants then filed an appeal against their conviction and sentence, and this appeal had come up before a learned Single Judge of the West Pakistan High Court on 28lh November 1967. Although all the prosecution witnesses had implicated the appellant's brother the learned Single Judge held that he had been falsely implicated and was not even present at the occurrence.
However he held that the prosecution had proved its case against the appellant and observed with regard to the appellant's statement under section 342, Cr. P. C. as follows: 'The plea of self defence raised by Muhammad Tufail accused is not supported by any evidence on record. No hatchet was recovered from the scene of offence........ " lie therefore allowed the appeal of the appellant's brother aud dismissed the appellant's appeal.
4. After this judgment had been pronounced, it was dis covered that on account of an alteration in the rules of the West Pakistan High Court, Single Judges were not competent to hear transportation appeals, therefore, whilst the acquittal of the appellant's brother was treated as final, the appellant's case was put up for hearing before us, and we had heard the appeal on the assumption that we were competent to hear it.
5. The appellant appeared in person and pleaded his innocence, and the learned Assistant Advocate-General took us through the record of the case. As the acquittal of the main accused, namely, the appellant's brother, had become final, the learned Assistant Advocate-General very fairly conceded that he could not support the appellant's conviction. However, as the learned Single Judge had convicted him on the basis of a part of his statement under section 342, Cr. P. C., we had to examine whether the conviction could be maintained on that basis.
A
1. However, the learned Single Judge lias convicted the appellant on the basis of this statement, because the hatchet with which Rohilo was alleged to have attacked him, was neither discovered nor mentioned in the mashirnama. Now, although the learned Single Judge has not explained his reasons for the view taken by him it would appear that he has treated a statement under section 342, Cr. P. C. as a confession, and because the exculpatory part of a confession can be rejected when there is evidence to warrant its rejection, he has rejected the exculpatory part of the appellant's statement because of the missing hatchet. With very great respect, I have to repeat here that there is difference between a confession and a statement under section 342, Cr. P. C. but even if the rules about rejecting the exculpatory part of a confession applicable to statement under section 342, the exculpatory part of such statements should be rejected only if the prosecution produces cogent evidence to warrant such rejec tion. But in the present case, the prosecution did not produce any evidence about the hatchet because its case against the appellant was totally different from that on which he has been convicted, and the mere fact that the mashirnama did not mention the hatchet would not, in my humble opinion, amount to evidence sufficient to warrant the rejection of the exculpatory part of the appellant's statement.
8. Additionally, as the learned Single Judge had convicted the appellant on account of the absence of a hatchet at the vardat, the learned Assistant Advocate-General submitted that if the absence of the hatchet from the vardat was a circumstance material to the appellant's conviction he should have questioned about it under section 342, Cr. P. C., and in support of this
(1) AIR 1944 Sind 137 submission he referred us to the leading case of Muhammad Bux v. The Crown (I). There an appellant had been convieteJ on the basis of an admission in a statement with regard to which no question had been put to him in his examina tion under section 342, Cr. P. C., and in allowing his appeal, Abdur Rashid, C.J. observed at page 4: "It must be most unfair to the accused and it would amount to a violation of a fundamental principle of natural justice if he is convicted solely on basis of an admission alleged to have been made by him without calling his attention to an admission and asking for his explanation when he was examined in Court."
T am respectful agreement with these observations which are fully applicable to the present case.
Therefore, as the appellant was not questioned about the hatchet, I agree with the learned Advocate-General that on this ground also the prosecution has failed to prove its case against the appellant.
9. In the circumstances discussed, the prosecution has failed to prove the guilt of the appellant, and if we had been competent to hear this appeal, speaking for myself, I would have allowed it.
However, in view of the judgment of the West Pakistan High Court in Maltammod Ashfaq v. The state (Criminal Appeal No. 154 of 1966), to which my learned brother has referred in detail, it is clear that we were not competent to hear the appeal. Accordingly, this Court cannot give any relief to the appellant on account of the judgment of the learned Single Judge. But the powers of the Provincial Government under section 401, Cr. P. C. are not in any way affected by the said judgment, and in my humble opinion, this is a fit case for the grant of relief by the Provincial Government under section 401, Cr. P. C. I am aware that a plea of self-defence necessarily raises the question whether the right of self-defence was exceeded. But I do not think even that is material in the present case, because the appellant was convicted five years ago and has remained in jail ever since. I therefore direct the learned Advocate-General of Sind to refer this case to the Provincial Government for taking such action as it deems proper under section 401, Cr. P. C. .
(1) PLD 1952 FC 1