Habib Khan appellant had been convicted under section 304, Part I, and section 308, P. P. C. By Mr. Muhammad Sharif, Sessions Judge, Sialkot, for causing the death of Muhammad Yusaf deceased and making a murderous assault on Usman Khan (P. W. 14) a brother of the deceased. He was sentenced to transportation for life and a fine of Rs. 2,000 on the first count and to four years' R. I.
On the second. In default of payment of fine he was ordered to undergo a further period of six months' R. I. The sentences were to run concurrently. The appellant's brother Zain Khan was tried along with him and was acquitted by the Sessions Judge. The complainant has filed a revision petition for enhancement of sentence passed on the appellant. This judgment shall dispose of the appeal as well as the revision petition.
2. The occurrence took place on 20th of November 1964, at 7.30 a.m. The first information report Exh.
P. A. Was lodged at 9-30 a.m. At Police Station Narowal by Usman Khan, the injured witness. The distance of Police Station and the place of occurrence is six miles, according to the first informa-- petition report and the evidence led at the trial, the firearm injuries caused to the deceased and Usman Khan P. W. Were the result of shots fired by Zain Khan, the acquitted accused. The appellant was attributed only a lalkara and the charge against him was actually of abetment. The learned Sessions Judge acquitted Zain Khan after considering his plea of alibi and other factors arising out of the case. The appellant has been convicted solely on the basis of his own statement in which he owned that he had fired at the deceased and Usman Khan in exercise of the right of private defence of person and property.
3. The dispute between the parties arose because Habib Khan appellant was trying to bring under cultivation a path-way two karams in width which had been demarcated by the Consolidation Authorities about a year before the occurrence. The prosecution evidence is to the effect that the appellant started bringing this path under the plough one day before the occurrence. Next morning the appellant again started ploughing the same path. Muhammad Yusaf deceased, his brother Usman Khan, Jumma Khan, Rozadar Khan and Maley Khan P. Ws. And two others told Habib Khan not to block the public path. Consequently, there was an altercation between the deceased and his brother Usman on one side and the appellant on the other. Zain Khan, the brother of the appellant who had his house at a distance of about thirty karants from the spot came there and Habib Khan asked him to bring out his gun. Zain Khan ran into his house, brought his double- barreled gun and on the exhortation of the appellant fired a shot which hit the bullock belonging to the complainant party. Zain Khan fired another shot which hit Muhammad Yusaf deceased on the chest. When Usman Khan P. W. Wanted to lift his brother from the ground, Zain Khan fired another shot which hit the witness on his buttocks. Muhammad Yusaf died at the spot and Usman Khan went in a tonga to the Police Station to lodge the first information report. A gun was recovered in a broken condition at the instance of Zain Khan from his house. The crime empty P. 4 recovered from the spot was found wedded to this gun.
4. At the trial, apart from Usman Khan, the injured witness (P. W. 14), Ilam Din (P. W. 15), Jummay Khan (P. W. 16), Maley Khan (P. W. 17) and Rozadar Khan (P. W. 18) appeared to give the eye-witness account. The learned trial Court found that all the eye-witnesses were interested and un--worthy of credence. It appears from the record that Jalal Din son of Zain Khan, the cc-accused of the appellant, had got a case registered under sections 148 and 324, P. P. C. Against the deceased and the eye-witnesses in the year 1968. Usman Khan also admitted that a case under section 324/34, P.
P. C. Was registered in 1968 against Jalal Din, Zain Khan and one Chanda their relative. Usman in order to escape an admission of relationship with Maley Khan conveniently forgot the name of his grandfather and that of the sister of his grandfather who happened to be the mother of Maley Khan, Ilam Din admitted that he and Habib Khan had been bound down for keeping peace on each side. Ilam Din otherwise appears to be a chance witness, Jummay Khan was not named as an eye- witness before the com--mitting Magistrate. Maley Khan was so brazen faced as to say that he was smoking huqqa in public in the month of Ramazan. Rozedar Khan P. W. Admitted that he was a postal clerk and that the accused had sent application against him to the higher authorities. He further said that he had come to an agreement regarding watering of his fields with Zain Khan but the latter went back on this statement. The learned trial Judge found that the story of the empty cartridge was introduced by the prosecution at a later stage. He did not believe the recovery of the gun because the witnesses of the recovery came from two other villages and did not appear to be independent.
5. Zain Khan pleaded alibi at the trial. He said that he was a Road Inspector employed in the P. W. D.
And at the time of the incident he was attending to his duty. He produced defence evidence to that effect. The learned Additional Sessions Judge was most impressed by the evidence of Muhammad Abdullah Qureshi (P. W. 7) and found that the prosecution story that Zain Khan had fired at the deceased and his brother had not been proved. He on this account acquitted Zain Khan. There is no State appeal against the acquittal of Zain Khan and nothing has been urged before me against the conclusions arrived at by the trial Court in respect of Zain Khan.
6. The case of Habib Khan appellant was that he was ploughing his own land and no proper path- way had been demarcated by the consolidation authorities. He further said that Muhammad Yusaf deceased, his brothers Usman Khan and Abdul Karim and one Rahim Bakhsh came variously armed and wanted to forcibly demarcate a path. The appellant protested and his wife Mst. Bodi who appeared as a defence witness came from her house which is nearby. She protested and tried to prevent the members of the complainant party from taking possession of the strip of land in dispute. On the lalkara raised by the deceased Usman Khan strangulated her and it was in order to save her and his property that he took out the licensed gun of his brother Zain Khan from his house.
The deceased on seeing the appellant again raised a lalkara that the appellant should be killed.
The members of the complainant party attacked him and he fired in order to save himself, his wife and his property. He denied that his brother was present at the spot. He also denied the presence of Jummey Khan, Ilam Din. Maley Khan and Rozedar Khan P. Ws. At the spot.
7. The learned trial Judge found that the path-way had been properly marked. He repelled the story of Habib Khan for the reasons that he had not received any injury and had failed to bring any evidence on the record to show that his wife was attacked in the manner as alleged by him and held that the offence against Habib Khan had been proved on his own admission.
8. Ch. Amjad Khan, the learned counsel for the appellant, submitted that the prosecution evidence has been completely disbelieved by the Court below, and if Habib Khan had not offered any explanation of the incident, he would have been entitled to an acquittal because the prosecution had only attributed to him an exhortation to the principal accused who was found to be absent from the spot at the time of the occurrence. The learned counsel further submitted that when a conviction is based on the confession or ad--mission of an accused person the whole of it is to be taken into consideration and only that part is to be rejected which is proved to be false from the record of the case. The conviction in this case, he points out, was based on the absence of any injury on the person of the accused and his failure to get his wife examined by a doctor.
The learned counsel further contended that it had not been categorically proved that a path-way was demarcated according to law and was being used by the public. The prosecution had produced two Patwaris to show the existence of a path-way. Both of them, Munshi Muhammad Latif (P W. 3) and Muhammad Munir (P. W. 4) stated that there was a path-way between Khasra Nos. 575 and 577 and that they had demarcated the same. They, however, admitted that the fact of the demarcation of the path had not been noted in the records of the consolidation proceedings. They further admitted that there was no record to show that Habib Khan had notice of this demarcation or had agreed to such demarcation. According to the F. I. R. Consolidation of holdings in this village took place a year before the occurrence. Habib Khan claimed that he had all along been tilling this soil but no documentary evidence was produced to rebut his assertion. The F.
I. R. Shows that a path was only proposed. The learned counsel made reference to rule 15 framed under the Consolidation of Holdings Ordinance, 1960, and said that according to this rule the consent of Habib Khan was necessary for making this special path-way. To my mind, therefore, it is not proved that the path had been formally demarcated and was being used by the public. It appears from the evidence of Ilam Din and the judgment of the learned trial Court that the deceased and his companions bad taken strings and baskets in order to demarcate the path and in order to put back the earth which had been dug out from it. This would show that they had gone with the determination to dispossess Habib Khan of the land which is not proved to have been properly demarcated as a path-way. There is of course no evidence that the wife of the appellant was being strangulated by the deceased but the learned counsel submits that there was no onus on Habib Khan to prove this and it was not open to the learned Sessions Judge to throw out this plea of Habib Khan on the basis of improbability or his failure to produce any evidence to Oat effect. He in this connection made a reference to the case of Balmakund v. Emperor (AIR 1931 All.
1which was decided by a Full Bench. The case was referred to a Full Bench by a Division Bench in the following terms:---- "The appellant in this case made a confession. As regards the fact of the murder, we have no doubt that he killed his wife, but in the con--fession be alleges certain reasons which, if true, would have an im--portant bearing upon the nature of our decision. The matters alleged by him in justification appear to us so unworthy of brief that no Court could act upon them."
The Full Bench observed that in the cases cited before them the possibility of any distinction based upon whether the exculpatory element in the con--fession was or was not in itself inherently incredible, does not seem to have been present to the mind of the Judges who decided those cases. The Bench further observed that the rule that confession of an accused person has to be considered as a whole and only that part is to be rejected which is proved to be false from the record, has been in practice for about a hundred years, and they would not like to engraft a new rule thereon. The answer given by the Full Bench was that:----- "Where there is no other evidence to show affirmatively that any portion of the exculpatory element in the confession is false, the Court must accept or reject the confession as a whole and cannot accept only the inculpatory element while rejecting the exculpatory element as in--herently incredible."
While the Full Bench dealt with the case where an accused had made a confession, the principle laid down therein has been stretched even to the :admissions of the accused and confessional statements made during the trial. The case of Rex v. Baqir (1948 LLR 256) is on all fours with the one before me. The learned Sessions Judge in the precedent case had not chosen to rely on the eye-witness account and had come to the conclusion that the version given by -the prosecution was on the face of it improbable. He, however, proceeded to convict the accused on the ground that the defence version was not true. The learned Single Judge deciding the case observed as under:--- "Here it seems to me that the learned Judge has lost sight of the principle that when the Court acts upon the statement of an accused alone, and there is no other evidence available which disproves any portion of that statement, of the accused, the whole of that statement, and not only a part of it which may go against the accused, should be taken into .Consideration. This principle was definitely laid down by a Full Bench of this Court while dealing with the case of a confession made by an accused person, but, to my mind, the principle is equally apple--cable to a case like the present where the Court has acted only on the statement of the accused person."
9. The legal plea taken by the learned counsel prevails. Where conviction is based on the admission or confession of an accused person, it has to be taken as a whole. The Court cannot select one part and leave the other unless the prosecution is in a situation to contradict any part of it or to prove that it is false. If the prosecution evidence has been totally rejected and there is nothing on record incompatible with the exculpatory part of the confession, admission or declaration of an accused person, it has to be accepted. To introduce a new rule to the effect that the Court may accept A that part of the confession which appeals to its reason and reject that which strikes it as untrue or absurd would not be in conformity with the established rules of administration of justice in criminal matters. It may result in cases being decided according to the individual assessm ent, inclination or whim of the Presiding Officers of Courts who no doubt are bound by law and rules laid thereunder, but as human beings differ from each other in their notions, .Attitude of mind, susceptibilities and power of perception.
10. I have found above that the deceased and his companions had gone to the spot to fill up the path which has not been proved to have been properly marked for public use. Habib Khan claimed that he had continued tilling this soil. This claim remains un-rebutted. He had, therefore, a right of private defence of property. There is nothing positive on the record to indicate the falsity of his plea that his wife was being strangulated by Usman and the deceased had raised a lalkara that he should be killed, whereafter the members of the complainant party assaulted him. His house is nearby. It, was natural for his wife to be attracted to the spot after hearing an alterca--petition.
True that he did not adduce any evidence to that effect but be was under no obligation to do so especially when the prosecution story gave him a lesser role of raising a lalkara and the shots which injured the deceased and the injured P. W. Were attributed to his brother.
11. The eye-witnesses said that the shots were fired from a distance of eve karams. There was scorching on the wounds caused to the deceased as well as to Usman Khan. It appears that the parties were in a very close range when the shots were fired. The gun of Zain Khan which was ad-- mittedly used in the commission of the offence was recovered in a broken condition. This lends support to the suggestion of the defence made to Rozedar Khan P. W. That the dang had been broken by the dang of the complainant party.
12. For the reasons given above, I give the benefit of doubt to Habib Khan and set aside his conviction and sentences on both the counts, and order that he shall be set at liberty if he is not required to be lawfully detained, in some other case. The fine it paid shall be refunded to him. The revision; petition for enhancement of sentence passed on the appellant is dismissed.
13. The matter is concluded by the above finding but before parting with this judgment, I would like to make some comment on the legality of the conviction of the appellant under sections 304, Part I and section 308, P. P. C. The learned Sessions Judge repelled the contention of the appellant that her had fired at the deceased and his brother Usman Khan in exercise of the right of private defence of person and property and yet proceeded to convict the appellant under the aforesaid sections, without giving any reason therefor. Section 300, P. P. C. Defines what is murder and every act that falls within one or more of the four clauses of section 300 is murder. The conviction in this case, therefore, on the facts found by the learned Sessions Judge should have been under section 302, P. P. C. Section 304 is headed as "punishment for culpable homicide not amounting to murder".
On a plain reading of sections 300 and 304, P. P. C. It is apparent that a conviction can be based under section 304, P. P. C. Only when the case of an accused person is covered by one or more of the sets of circumstances described in the five Exception to section 300, P. P. C. When there is no excuse for committing one of the acts described in the four clauses mentioned in section 300, the offence squarely falls within the purview of section 302, P. P. C. Where an act, defined m clause (4) is committed with an exclusive the provisions of Part II of section 304, P. P. C. Will be applicable. See Barkatullah v. Emperor ((1887) P R 32:(Cr.)), Ahmad v. State (PLD 1971 SC 720) and Abdul Qadeer v.
Abdullah and others (Cr. Appeal No. 47 of 1970, decided by the Supreme Court on 30th of May 1973).