ABDUL QADEER CHAUDHRY, J.---This appeal by the leave of the Court is directed against the judgment dated 15-5-1984 passed by the Lahore High Court to consider whether the inculpatory part of the statement of an A accused under section 342, Cr.P.C. Could be used against him while excluding the exculpatory part th6reof.
2. The facts, in brief, are that on 4-8-1979, the complainant Sultan Khan and his son Abdul Khaliq were grazing cattle in their field. At the same time, Sher Muhammad P.W.9, Abdul Rehman deceased and Fateh Khan P.W.8 were also grazing their cattle in a nearby field. At that time, Sher Khan and others came there with hatchets. They caused hatchet blows to Abdur Rehman and Fateh Khan. Ahmed Khan, Sher Khan and Muhammad Amir inflicted injuries receptively on the right ear, back of the neck and right hip of Abdur Rehman. Khuda Yar caused a blow on the head of Fateh Khan. Fateh Khan tried to run away but he was overtaken by Amir Muhammad who injured his right hand. All these injuries were caused with the wrong side of the hatchet. Abdur Rehman expired at the spot while Fateh Khan was taken to the hospital in injured condition. The report was lodged by Sultan Khan. After usual investigation, the accused were sent up for trial before the Court of Sessions.
3. At the trial, the prosecution examined 12 witnesses including the three eye-witnesses. The Sessions Judge disbelieved the three eye-witnesses, namely, Sultan Khan, Sher Muhammad and Fateh Khan but relied on motive as furnished by Sultan Khan, P.W. It was observed that Sultan Khan and Sher Muhammad were not present He also disbelieved Fateh Khan injured with regard to the injuries suffered by the deceased. He relied upon his statement in regard to himself and that tqo in respect of the first injury received by him at the hands of Khuda Yar. According to the learned Sessions Judge, he became unconscious after receiving the first injury. He disbelieved the recovery of weapons of offence. He found Sher Khan guilty of the charge as his participation was proved by his own admission. He convicted Sher Khan under section 302 P.P.C. And sentenced him to death, fine of Rs,5,000 or in default to undergo two years' R.I., and Khuda Yar under section 326 P.P.C. To three years' R.I. And fine of Rs,3,000 or in default in the payment of fine, to suffer further R.I. For one year. Ahmed Khan, Muhammad Amir and Amir Muhammad were acquitted by means of judgment dated 19-10-1980. The High Court accepted the appeal of Sher Khan and he was acquitted of the charge. The appeal of Khuda Yar was dismissed as not pressed. The private revision filed against the acquittal of co-accused was dismissed.
4. Leave to appeal was granted by this Court against the acquittal of Sher Khan. The High Court disbelieved the motive. As regards the statement of the accused Sher Khan under section 342 Cr.P.C., it held that his statement should be taken into consideration in its entirety.
5. The evidence on record shows that P.W.8 Fateh Khan injured had not implicated the respondent Sher Khan in the First Information Report. There is no reference of revolver or its use by Ahmed Khan, the acquitted accused. It was held by the learned Sessions Judge that Sultan was not present at the Wardat. Fateh Khan had not stated that Sher Khan had caused any injury to the deceased. Sher Muhammad P.W. Was contradicted by Fateh Khan P.W. Who stated that it was Ahmed Khan, the acquitted accused who had given blow at the neck of the deceased. The motive has been discarded by the High Court for cogent reasons. The motive alleged in this case is that about 10/12 years before the incident, there were consolidation proceedings of holding. The complainant was allotted the land of accused who had a grudge and wanted to dispossess the complainant party.
Sultan Khan P.W.7 had stated about the actual occurrence. He was disbelieved by the High Court and the trial Court. There is no material on record to suggest that during this period of 10/12 years any untoward incident had occurred between the parties. The complainant had admitted that at the time of consolidation proceedings the land in which the occurrence took place was Banjar Qadeem. He also admitted that the entire land even at the time of the occurrence was Banjar Qadeem. After considering the statement of Sultan Khan, the High Court discarded the motive as a piece of evidence against the accused. There is no material to displace this finding. Even otherwise, it cannot be imagined that the accused party had waited for such a long time to take the revenge.
There remains only the statement of the accused made under section 342, Cr.P.C. The accused- respondent in his statement under section 342, Cr.P.C. Stated as follows:-- "Two days prior to the occurrence a goat belonging to Alam Sher, maternal-uncle of Abdur Rehman deceased, was stolen or lost. On the day of occurrence I was grazing my own goats in the land of Misri Khan situated near the place of occurrence where. Abdur Rehman deceased was grazing his own cattle. On the basis of some information, Abdur Rehman (deceased) blamed me for stealing the aforesaid goat belonging to his uncle. I denied the allegation and tried to assure him but he was not satisfied. During this controversy he abused me. When I asked him not to masbehave, he suddenly took out a revolver from his 'Dab' and wanted to fire at me. I hurriedly caught hold of his hand in which he was holding the revolver and twisted it. During the struggle the revolver went off from his hand and the bullet hit him. I receded back and apprehending danger to my life, gave him two Danda blows as a result of which he fell down. I stood nearby. After 10/15 minutes Fateh Khan P.W. Came and seeing Abdur Rehman lying injured, gave me abuse. He was armed with a hatchet and aimed blow on me. I receded back and it did not hit me. With the same Danda I gave two blows to him as well. He was still resting his body on the hatchet which he was holding like a stick, when I ran away. None else excepting myself, Abdur Rehman and Fateh Khan, who came there 10/15 minutes later, was present there nor any one else saw the occurrence. Fateh Khan P.W. Had not seen me giving blow to Abdur Rehman."
6. After excluding the entire prosecution evidence against the accused, the question calls for determination is whether the statement of the accused is to be accepted as a whole or exculpatory part of the statement could be excluded from consideration and his conviction can be based on the in collator statement. There is no doubt that the statement of an accused recorded under S.342, Cr.P.C. 18 may be taken into consideration but the Court cannot select out of the statement the passage which goes against the accused. Such statement must be accepted or rejected as a whole. The Federal Court in Rahim Bakhsh v. Crown PLD 1952 F.C. 1 has observed that "if the conviction of the petitioner is to be based solely on his statement in Court it is obvious that this statement should be taken into consideration in its entirety". The statement of an accused should be taken into consideration in its entirety and not merely the inculpatory part of it to the exclusion of the exculpatory part unless there is other reliable evidence which supplements the prosecution case. In such a condition, the exculpatory part if proved to be false may be excluded.
See Balmakund v. Emperor AIR 1931 All. 1; Sher Gul v. Emperor AIR 1935 Lah. 671, Muzaffar Khan v.
The State PLD 1956 (W.P.) Lah. 1045, Mohan Lal v. Ajeet Singh AIR 1978 SC 1183 and Ghulam Muhammad v. The State PLD 1961 (W.P.) Lah.
146.
7. In the present case, the accused in his statement under section 342, Cr.P.C. Has given his version of the incident and stated that he had caused injury by means of blunt weapon in exercise of his right of private defence. There is no other circumstance direct or indirect connecting the accused with the commission of the offence. As such, the exculpatory part of the statement of the accused cannot be excluded. The statement has to be taken into consideration as a whole and the plea advanced by the accused has to be accepted.
8. The acquittal of the accused-respondent is based on correct appreciation of facts and law. It does not require any interference by this Court. The appeal is accordingly dismissed. The bail bonds of respondent No,1 shall stand discharged.
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