' Abdul Shakoor (aged 32 years) was tried for the murder of his paternal uncle, Arshad Khan. Mr. Ch. Muhammad Saeed Akhtar, Additional Sessions Judge, Kasur, District Lahore, convicted him under section 302, P. P. C. And sentenced him to life imprisonment and to pay a fine of Rs, 2,000 in default of payment of which he was to suffer further one year R. I., vide his judgment passed on 21-3-1973.
2. The prosecution case as disclosed in the F. I. R. Briefly is that on 13-2-1970 Arshad Khan deceased, his son Vakil Khan P. W. His wife Mst. Ruqqaya and Muhammad haul Khan (not examined) were busy levelling the ground and collecting bricks in order to construct a drain to connect with the main drainage system of the village, at Nandka Takla in the area of village Hardusehri, Tehsil Kasur, District Lahore, at about 11 a.m. Of the day of the appellant appeared and objected to the deceased party constructing the drain and abused the deceased but the deceased told the appellant that he was determined to construct the drain on the next day. Appellant was enraged on this reply, went home and brought a toka with which he delivered a forceful blow on the deceased which hit him on the left side of the neck. The deceased fell on the ground and died. The appellant escaped with toka. No motive other than the dispute of construction of drain was alleged in the F. I. R. Vakil Khan P. W. Went to the Police Station, Sadar, Kasur, after covering six miles where on his statement F. I. R. Was registered on the same day at 12-30 (noon).
' After registering the case at the police station Iqbal Baig, Sub-Inspector (P. W. 12) who was then S. H. O., P. S. Sadar, Kasur, visited the spot in village Nandka Takia on the same day. He prepared injury statement (Exh. P. H. 1) and inquest report (Exh. P. H.) of the deceased and despatched the dead body for autopsy. He secured blood-stained earth from the spot vide memo. Exh. P. D. He arrested the appellant from his house on the same day at 10 p.m. He got removed blood-stained shirt (Exh.
P. 1) and blood-stained chadder (Exh. P. 2) from the person of the appellant and secured it vide memo. Lab. P. A. On 14-2-1970, the appellant led him to ' Dhani Bux: ' One contusion 2' x 1' over the dorsem of right hand.
' The injury was simple in nature and appeared to have been caused by some blunt substance such as lathi. Age of injury was about 12 hours which tallies with the time of the incident alleged in this case."
4. Appellant Gullan was produced before the mukhtiarkar and F. C. M., Naushahro Feroze on the same day at 9-10 a.m., where his judicial confession was recorded. Ali the blood-stained articles secured by the S. H.
0. Were sent to the Chemical Analyser who found them to be stained with human blood. After completing the investigation the appellant Gullan, Ibrahim and Dhani Bux and the acquitted accused Hussain, were sent up to stand their trial in the Court of the Additional Sessions Judge, Nawabshah.
5. At the trial, against appellant Gullan, the prosecution relied on the statement made by him at the police station incorporated in the F. I. R. (Exh. 18), the judicial confession recorded by the Magistrate on the same day, and the circumstantial evidence furnished by the presence of human blood on his clothes and his conduct in that he took the Investigation Officer to the precise place where the dead body was lying and from where the weapons of offence mentioned in the report were recovered. As against appellant Gullan, Muhammad Ibrahim and Dhani Box the prosecution relied upon the retracted judicial confession of their father, appellant Gullan, and the circumstantial evidence furnished by the presence of human blood on their clothes and the presence of injuries on their persons. The prosecution also relied upon the evidence of motive against all the appellants which was to the effect that deceased Hafiz was on terms of illicit intimacy with the wife of appellant Gullan about which appellant Gullan had complained to P. W. Tahir a month before the incident and hence this murder.
6. The defence of the appellant at the trial was one of denial and false implication. In his statement under section 342, Cr. P. C. Appellant Gullan when questioned as to his statement incorporated in the F. I. R. (Exh. 18) stated as under :- "I had reported to the S. H.
0. That thieves bad entered my house and on our awaking up we pursued them, whereupon one of the thieves grappled with me, he fell down and his companions thinking the third thief to be me caused him several injuries and ran away. The S. H.
0. Came at the vardat in the morning and he being under the influence of Tahir P. W. And other relations of deceased wrote the report of his own and forced me to sign it, on the next day at morning time."
' As to securing of the blood-stained shirts and shalwar from his person at the police station, he explained as under "That the shirt and shalwar were secured from my person at morning time at the vardat and not at the police station. My clothes might have been stained with blood as I had grappled with the deceased who had bled from his injuries caused to him by his companion."
' As regards his making the judicial confession before the Magistrate, he explained that female members of his house were taken out from his house and were insulted and maltreated and his sons Dhani Bux and Ibrahim were beaten by the police and due to above coercion and harassment he had made the judicial confession which was neither voluntary nor true. With regard to his pointing out the dead body of the deceased lying in front of his house and securing of blood- stained hatchet and pieces of hockey and lath! He explained that "whole mohalla had seen the deceased lying dead. Police also saw deceased lying dead". He further stated that he had been implicated by P. W. Tahir, uncle of the deceased, as he had complained against him for selling charras and indulging in prostitution at his (P. W. Tahir's hotel). Appellant Ibrahim when asked about the presence of injuries on his person and the blood-stained clothes at the time of his arrest by the police on the same morning, stated that the police had caused him injuries as they had beaten him up. When asked about the confession of his father appellant Gullan, he explained that it had been obtained under coercion and was neither voluntary nor true. The statement of appellant Dhani Bux was also to the same effect,
7. The trial Court relying on the aforesaid evidence convicted the appellant but acquitted Hussain giving him benefit of doubt,
8. The question for consideration in this appeal is whether on the basis of the evidence, the prosecution had succeeded in proving beyond all reasonable doubt the guilt of the appellants for the offence of committing murder of Haft in furtherance of their common intention. It may be stated at the outset that there is no ocular evidence in this case. The case for the prosecution therefore rests entirely on the circumstantial evidence and retracted judicial confession of one of the appellants namely, Gullan.
9. First piece of evidence relied upon against appellant Gillian is his statement incorporated in the F. I. R. (Exh. 18) which has already been reproduced in para. 2 above.
10. The leaned counsel for the appellants contended that the statement made by the appellant and incorporated in F. I. R. (Exh, 18) was inadmissible in evidence against him on account of its exculpatory nature. The trial Court while dealing with the statement held it to be admissible in evidence and relied on it against the appellant on the ground that it was self-exculpatory inasmuch as the appellant had set up a plea of defence of property and had not admitted therein to have intentionally committed the murder of the deceased. Careful reading of the above statement would. However, show that no such plea has been raised by the appellant nor could it be available to him in the circumstances of the case. The relevant portion of the statement of appellant Gullan is as under :- "There we saw three thieves, standing at the hack of the house, inside the protection hedge. We challenged them as who were they. Out of them two thieves escaped, jumping over the hedge to the north of the house, and one thief tried to escape eastwards, and we tried to catch hold of him.
The thief, trying to get himself released, started running eastwards to an open ground and a street leading to town. I inflicted him hatchet blows and my sons namely Hussain Bux, Ibrahim and Dhani Bux, gave him hockey, danda and lathi blows, and fell him down in the street. Thereafter upon our cries of "thief-thief" namely Abdul Rahman Memon, Muno Memon, Mangar son of Safar Gopang and other neighbourers came there, and saw the facts. Due to receiving injuries by us, the thief expired. We identified the thief as Hafeez son of Peero caste Memon resident of Kot Bahadur who was previously known to me and has expired."
' The above statement would clearly show that the deceased had succeeded in coming out of the protection hedge of the house, and was given injuries outside the hedge in the open ground while the deceased was running away towards the street leading to the town. He is also not alleged to be taking away any property. What is still more important is the fact that the dead body of the deceased was found lying on a heap of rubbish in the open ground at a distance of 12 paces from the house of the appellants. Consequently, the plea of defence of property was neither available to the appellant nor such plea could be said to have been raised by him. The statement made by appellant Gullan incorporated in the F. I. R. (Exh. 18) was clearly of an inculpatory nature and was, therefore, inadmissible in evidence.
11. Their Lordships of the Supreme Court, while dealing with the F. I. R. Lodged by the appellant wherein he admitted the killing but had pleaded right of self-defence, held in the case reported as Muhammad Bux v. State (1), the F. I. R. To be inadmissible in evidence. The relevant observations appearing at page 422 may be reproduced as under :- "At the trial, apart from the circumstantial evidence furnished by the presence of human blood on the clothes and hatchet of the appellant and the fact that he took the Investigating Officer to the precise place where the dead body lay, the prosecution relied on the report that the appellant had made to the police, the judicial confession recorded by the Magistrate and the oral confession made by the appellant to Muhammad Hayat. In appeal the learned Judges of the High Court excluded both the confession and the report and have maintained the conviction on the remaining evidence.
' Mr. Mahmud who has opposed the appeal admits that the report made by the appellant at the Police Station was rightly excluded by the High Court."
12. Again in the case reported as Muhammad Saleh v. State (2) their Lordships of the Supreme Court while dealing with the question of admissibility of F. I. R. Lodged by the accused implicating himself therein held it to be inadmissible in evidence. The relevant observations appearing at page 368 may be reproduced as under :- "Muhammad Saleh himself went to the police station to report the matter which he said was recorded at 11-30 a.m. On the 26th February. The statement was inadmissible in evidence on account of its incuplatory nature."
In view of the above observations of their Lordships of the Supreme Court, the report (Exh. 18) was inadmissible and could not be used as evidence against the appellant.
13. The trial Court has also relied upon the evidence of motive. The witness who has deposed to this evidence is P. W. Tahir. He is uncle of the deceased. He stated in his evidence that about a month back appellant Gullan had come to him and had complained that the deceased was carrying on intrigue with his wife and he would, therefore, kill him. In cross-examination it was suggested to him that the appellant Gullan had one wife and all his three sons namely appellants Ibrahim, Dhani Bux and acquitted accused Hussain were married and were living with him in the same house. On the basis of the admissions, the learned counsel contends that the alleged motive was false as the wife of appellant Gullan, who was himself {{FOOT NOTE}}
(1) PLD 1956 SC (Pak.) 420 (2) PLD 1965 SC 386 {{FOOT NOTE}} 60 years old, must be 60 to 65 years old and it was inconceivable that she should be having an affair at that age.
14. This contention is, however, based on a conjecture as there is no evidence as to the age of the wife of appellant Gullan. P. W. Tahir could have no doubt thrown some light on this aspect of the case but no such question was even put to him in his elaborate cross-examination. Reliance was, however, placed on his evidence that Gullan had one wife and that all his three sons were married and have children. This, however, does not mean that Gullan married once only or that all the three sons are from his present wife. Besides, it is well known that in villages marriages take place at a young age so that it is by no means unusual for a woman of 35 or 40 years to be a grand-mother.
Moreover if a false allegation of this kind had to be introduced by P. W. Talk, he could have easily made the same against a young lady of the same family as for example one of Gullan's daughters-in-law. He could not have brought a false allegation against the wife of Gullan if she was really very old.
1. Accordingly find no ground to reject the evidence of P. W. Tahir on this ground. No doubt he is uncle of the deceased, but there is absolutely no evidence that he had any animus against any one of the appellants nor any reason to give false evidence against them on a capital charge. In his statement under section 342, Cr. P. C. Appellant Gullan alleged that P. W. Tahir was annoyed with him as he had made reports against him on charges of selling charas and running a prostitution den. The allegations were put to P. W. Tahir in his cross-examination but he denied the same. S. H.
0. Faiz Muhammad likewise denied about any such complaint having been made by any of the appellants. If there was any substance in the allegation, the appellants could have easily produced a copy of such complaint or examined witnesses in defence to substantiate their allegations but they failed to do so. In spite of all that has been said above, the fact remains that this witness admitted that he had not stated in his statement before the Court of enquiry about appellant Gullan complaining to him about the illicit connection of the deceased with his wife. He also did not name any person to whom he had mentioned about it, although he claims he had told his neighbours about it. In view of the admissions made by this witness, we do not consider it safe to place reliance on his evidence.
15. The next piece of evidence relied against appellant Gullan is his judicial confession, relevant portion whereof is reproduced as under "1 and my three sons namely Ibrahim, Hussain Bux and Dhani Bux were sleeping in our house last night. At about mid-night I and my sons woke up on the barking of dog. We suspected the thieves ; therefore I took hatchet and my sons took lathis and hockeys. When we opened the door we saw three thieves standing inside the hedge. We challenged them. Two thieves escaped to north, jumping over the hedge, and the remaining third thief started moving towards us. When he came in front of us, I gave him hatchet blows and my sons gave him lathi and hockey blows. He fell down.
We identified him as Hafiz Memon later on. Upon our hakats and cries the neighbourers namely Nang Gopang, Muno Memon and Abdul Rehman Memon came there. Many other people also came there later on. I and my sons tried to chase the absconding thieves, but could not trace out the foot-prints and came back. Meantime injured Hafiz expired. I went to Naushahro Foroz Police Station and lodge report. When the document was read over to him, he declared the name of deceased as Hafiz."
16. The learned counsel for the appellants contended that the confession made by appellant Gullan was involuntary and therefore inadmissible in evidence as the police had brought out the womenfolk of the confessing appellant from the house and had insulted and maltreated them as result whereof the appellant was coerced to make the confession. To substantiate the allegation, the learned counsel relied upon the evidence of P. W. Manoo who had admitted in his evidence that womenfolk of the appellant had been insulted and his sons were beaten up by the police.
17. It will be noticed that appellant Gullan was arrested at the police station on 21-7-1971 at 2-15 a.m.
In the morning and soon thereafter at 9-15 a.m. On the same morning, was produced before the Magistrate where his confession was recorded. The evidence of the Magistrate shows that he took all the necessary precautions and recorded the confession after he had satisfied himself that he accused was making the confession of his free will. Indeed, it was not even suggested by the learned counsel for the appellants that there had been any lapse on the part of the Magistrate in recording the confession. It could not, therefore, be said that appellant was compelled to make the confession as the Magistrate made it clear to the appellant that he was not bound to make a confession and that if he made one, it might be used against him. The fact that the confession of appellant Gullan was recorded on the same day within about 9 hours of the incident, goes a long way to show that the confession was made voluntarily. P. W. Manoo in his evidence has no doubt made the admissions in cross-examination that womenfolk of the confessing appellant had been brought out and were insulted and also the sons of the appellant had been beaten where after appellant Gulian agreed to confess. The trial Court, however came to be of the view that the witness had made these admissions to "oblige" the appellant. The trial Court had the advantage of having seen the witness, heard the testimony and marked his demeanour and the manner in which he made the admissions in his cross-examination by the defence counsel. The estimate made by the trial Court of the evidence of P. W. Manoo is therefore, entitled to due consideration and weight. Besides the reasons for making the alleged "obliging" statement, though not given by the trial Court, are not far to seek. P. W. Manoo is a neighbour of the appellant and admits to be on visiting terms with him. Of course, being a friendly neighbour is a virtue rather than a sin ; but this vitality stands exposed by his making false admissions. In his cross-examination he made an admission saying "when.' came out from the house and reached the vardat, I found accused Gullan armed with a hatchet, but I did not notice any blood stains on the hatchet or on his clothes".
It may be pointed out that even in his statement before the trial Court appellant Gullan admitted that he was armed with a hatchet and had grappled with the deceased and therefore his clothes might have been stained with blood. Yet P. W. Manoo went on to assert that the hatchet and the clothes of the appellant Gullan had no blood stains.
Besides the very conduct of appellant Gullan in reporting the incident to police and making a confession very shortly thereafter in the same terms shows that it was, made voluntarily without any pressure from the police. C A bare reading of the confession itself shows that it could not have been tutored. We accordingly find no reason to discard the confession which we hold to be voluntary and true.
18. The learned counsel for the appellants also contended that the confession of appellant Gullan was really an exculpatory statement and not a confession as he had pleaded right of private defence therein. This contention has no force for the reasons we have already given. Besides, reading of this confession shows that it is to the same effect as the F. I. R. (Exh. 18) lodged by appellant Gullan ; which we have not taken into consideration on the ground that it amounted to a confession. Indeed this argument of the learned counsel goes against his earlier contention that the F. I. R. Is inadmissible ; inasmuch as; if the F. I. R. Was not inculpatory in nature it could have been used as substantive evidence against appellant Gullan as held by their Lordships of the Supreme Court in the authority reported as Sulleman Shah v. Ayub and others (1).
19. The confession of appellant Gullan is also corroborated by the fact that indistinct foot-prints were seen inside the hedge of the house which was found by P. Ws. Dhani Bux and Faiz Muhammad to have been damaged, and the deceased was found to have received number of injuries with different weapons, which were recovered from the vardat as stated in the confession and the clothes of the deceased were found to be stained with blood.
20. There is ample corroboration of this confession by other evidence implicating the appellant. The appellant appeared at Police Station Naushahro Feroze immediately after the occurrence. He was wearing a blood-stained shirt and shalwar which were secured from his person in presence of mashir P. W. Dhani Bux. Nothing has been elicited in the cross-examination of P. W. Dhani Bux to throw any doubt on his evidence. Ali that was suggested to him was that sometime back he had been in the employment of one S. H.
0. Of Paddidan Police Station. The witness was frank enough to admit this, but that by itself is no reason to discard his evidence. Indeed the appellant himself admitted in his statement under section 342 at the trial that his clothes might have become stained with blood as he had grappled with the deceased, although he stated therein that the blows were given to the deceased by his own companions, which part, however, has been disbelieved by the trial Court, and rightly so, for very cogent reasons given in the judgment. Appellant has then stated in his statement under section 342 that the blood-stained clothes were secured from him at the vardat and not at the police station. This is an afterthought as no such suggestion was even made to this witness. The evidence of this witness is reliable and no ground has been made out as to why it should not be believed. The presence of human blood on the clothes of the appellant, is strong corroboration of the confession when considered with yet another circumstance of the appellant going to the police station at 2-15 a.m. And filing his F. I. R. (Exh. 18).
21. The question for consideration, however, is whether the appellant should have been convicted of murder or only of culpable homicide not amounting to murder. It is well settled that when confession of the accused is the sole basis of conviction, it has to be read as a whole and if it establishes circumstances favourable to the accused, benefit thereof has to be given to him.
22. In the instant case, the only account of what happened on the night of the incident resulting in the death of Hafiz is given by appellant Gullan himself and we have for the reasons given earlier accepted it as correct. Indeed, the S. H.
0. Faiz Muhammad and mashir Dhani Bua have stated in their evidence that they found the hedge of the house damaged {{FOOT NOTE}}
(1) PLD 1971 SC 751 {{FOOT NOTE}} ' and also saw indistinct foot-prints inside the hedge at the place of incident. Accepting the confessional statement as a whole, therefore, it now remains to be seen if there are any mitigating circumstances entitling the confessing appellant to any benefit thereof.
23. In the confession the appellant has stated that on being awakened at night, he came out of the house and found three persons inside the hedge of his house out of whom two ran away and the third started moving towards them and when he came in front of them, the appellant (Alian gave hatchet blows to the deceased while the remaining appellants gave him hockey and lathi blows as a result whereof he fell down and died. The above statement would show that the appellant admits that he caused the hatchet blows resulting in the death of the accused, but at the same time suggests that he caused the blows in self-defence as he apprehended danger by the deceased approaching him. This brings us to the question of exercise of right of private defence and restrictions on it exercise as provided by law.
24. In dealing with this very question in the case reported as Sultan Mahmood v. Crown (1), Shabbir Ahmed, .1. After making exhaustive survey of the provisions of law relating to right of self-defence and the restriction imposed on its exercise observed as under :-- ' The P. P. C. Allows the use of force in the exercise of light of private defence within defined limits and it is clear that if those limits are transgressed the transgression cannot be said to be the exercise of the right of private defence. However, when trying to determine if the force alleged to have been used in exercise of the right of private defence did or did not transgress the limits prescribed by law the Court has to keep in view the fact that when a person is using force to avert harm he cannot be expected to be meticulous about the limits which the law imposes on a person given the right to use force against a wrong-doer. Lf, however, it is held that the force used was excessive the case may he one of exceeding the right of private defence or even one in which no question of the accused having merely exceeded the right of private defence arises. If for example, the right of private defence is made a pretext to cause to a person in commission offence excessive harm and in the right of private defence causes more harm than could be caused in the exercise of that right, the person who causes the excessive harm cannot say that he had exceeded the right of private defence, and therefore, should not be treated as if he was responsible for his act to the fullest extent. To take a concrete case, if a person whose flowers are plucked by the boys in the neighbourhood were one day to shoot those boys I for one would not be prepared to accept the contention that it was not a case of murder but one of culpable homicide not amounting to murder because the owner of the flowers had a right of private defence which he bad exceeded. In the example I have taken the exercise of right of private defence would be nothing but a pretence to kill the boys and it could never have been the intention of the law that cases of this type be treated as ones of exceeding the right of private defence contemplated by it. In the same manner if a person uses force when the right of private defence has come to an end he cannot claim to be treated as if he had acted in the exercise of right of private defence or had merely exceeded.
' Section 97 of the P. P. C. Gives every person a right to defend his own {{FOOT NOTE}}
(I) P L. D 1955 bah, 575 {{FOOT NOTE}} ' body and the body of any other person against any offence affecting the human body as well as to defend his own property, whether movable or immovable, or property of any other person against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit any of these offences. The section mentions that the exercise of the right is subject to restrictions contained in section 99 of the P. P. C. Which section lays down, inter alia, that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Sections 103 to 105 deal with the right of private defence in cases of offences against property. The first of those sections enacts that a person may voluntary cause the death of the wrong-doer if the offence of the wrong-doer which is the occasion for the exercise of the right of private defence is robbery, house-breaking by night, mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as a place for the custody of property or is theft, mischief or house trespass under such circumstance as may reasonably cause apprehension that death or grievous hurt will be the consequence if such right of private defence is not exercised. Here again it is said in the body of the section that the exercise of the right of private defence is subject to the restrictions contained in section 99 of which the one relevant for the purpose of the present case, I have already mentioned. Section 104 of the P. P. C. Enacts that if the offence against property which gives rise to the exercise of the right of private defence is not any of the kinds mentioned in section 103 of the P. P. C. The right of private defence extends to the voluntary causing to the wrong-doer of any harm other than death subject again to the restrictions contained in section 99 of the P. P. C.
Section 105 of the Code which defines when the right of self-defence commences and when it terminates says with regard to the offences of criminal trespass and mischief that the right of private defence of property against property against criminal trespass or mischief commences when a reasonable apprehension of danger to the property commences and continues as long as the offender continues in the commission of criminal trespass or mischief."
25. In a later case from the same Court namely, Muhammad Ishaque v. The State (1), a Division Bench consisting of Shabbir Ahmed and Sajjad Ahmed, JJ. Observed as follows "Section 99 of the Pakistan Penal Code lays down that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence and section 104 of the Pakistan Penal Code makes it clear that the exercise of right of private defence against offences mentioned in that section is circumscribed by the limits mentioned in section 99 of the Code. If, therefore, a person intentionally does an act which he knows will result in much more serious harm than the harm which the law allows him to cause in the exercise of the right of private defence, it could not be said that he was acting in the exercise of the right of private defence but happened to exceed that right: This may be explained by an illustration. A boy, aged about 13, is seen plucking fruit from a maxi's garden. That the plucking of the fruit would amount to {{FOOT NOTE}}
(1) PLD 1960 Lab. 880 {{FOOT NOTE}} ' theft can hardly be doubted and the law gives the owner of the fruit a right of private defence. But if in order to prevent the boy from plucking fruit the owner were to shoot at the boy, it cannot be reasonably claimed for him that he was acting in the exercise of a right of private defence of property and had merely-happened to exceed it. What he did was far beyond what the law permitted him to do and as from the beginning his intention was to do what the law did not allow him to do, he could not be said to have acted in the exercise of the right of private defence and to have happened to merely exceed it. Examples of this type could be multiplied manifold that I am clear in my mind that if the Court comes to the conclusion that what an accused person intended to do, could not be considered to be an act done for the prevention of harm, it cannot hold it to be case of exceeding the right of private defence and should hold it to be case of committing the offence which was committed by reason of the act done."
26. These observations were cited with approval by the Supreme Court in the authority reported as Sardaran v. State (I).
27. Applying the above statement of law on the question of right of self-defence and restrictions on its exercise to the facts of the case before us, it is not unlikely that the appellant may well have entertained the belief that the deceased who was advancing towards them at such odd hour of the night might be armed with a deadly weapon which he might use and was, therefore, entitled to use force as he could not be expected to wait to find out whether or not the advancing deceased had any weapon in his hand. It would, therefore, appear that appellant Gullan could have justifiably apprehended danger from the deceased and therefore, was entitled to use force in self-defence.
Indeed, the learned counsel for the State conceded that appellant Gullan had the right of self- defence initially ; but he contended that the right stood negatived by the sustained attack on the deceased by causing him extensive injuries which went to show that the exercise of right of self- defence was not rooted in good faith. The contention is not without force.
28. The deceased was caused as many as 22 injuries out of which 15 were incised caused by hatchet and the rest by blunt weapons, mostly on the head. The extent and nature of the injuries caused to the deceased, which have been reproduced earlier in the judgment, clearly show that after receiving the first few injuries the deceased could not have possibly been in a position to stand up but must have fallen down prostrate on the ground. Thereafter, there was no possibility of apprehending any danger from the deceased. Yet the deceased was caused further extensive injuries on nearly all parts of the body. Further, it will also be noticed that while appellant Gullan had suffered no injury, appellant Muhammad Ibrahim had two simple injuries, an abrasion over the dorsem of right index finger and a contusion over the left fore-arm and appellant Dhani Bux had one simple injury, a contusion over the dorsem of right hand which according to the doctor could be caused by a fall on the ground. It is also not stated in the confession that the deceased was armed.
29. To hold that when appellant who was armed with a hatchet had, at least, caused 15 injuries to an unarmed and prostrate man, was exercising E Fight of private defence of property or person or was merely exceeding it, {{FOOT NOTE}}
(1) PLD 1970.SC 212 {{FOOT NOTE}} would be to shut one's eyes to the provisions of law applicable to cases of exercise of right of private defence ; because, if a person intentionally causes more harm than is necessary for the purpose of defence and offends against section 99 of the P. P. C. He cannot be said to be exercising the right. Dealing with the question of right of self-defence and the restrictions on its exercise, their Lordships of the Supreme Court held in the case reported as Ahmed v. State (1) as under :- "The exercise of the right of self-defence of body or property is subject primarily to the restrictions contained in section 99 of the Penal Code. One basic restriction in this behalf is that no harm is to be caused other than what is absolutely necessary for the exercise of the right of self-defence. If the harm caused to the offending party is out of all proportion to the harm which may be received or which is threatened by the other party, and which gives occasion for the exercise of that right, the right of self-defence will stand completely negatived. This right is available only if it is rooted in good faith and no intention is manifested by the circumstances of doing more harm than is necessary for the purpose of self-defence."
30. In an earlier case reported as Ibrahim v. The State (2), also it was pointed out by their Lordships of the Supreme Court that plea of self-defence was negatived when it was proved that the attack was sustained and carried out with great determination and without regard to the consequences.
31. Keeping in view the principles laid down by their Lordships of the Supreme Court, plea of self- defence could not be said to be available to the appellant and the offence committed by appellant Gullan was clearly murder and not one of culpable homicide not amounting to murder.
He has, therefore, been rightly convicted by the trial Court of the offence under section 302, P. P. C.
32. I shall now consider the case of remaining two appellants namely, Ibrahim and Dhani Bux. Both the appellants have been implicated by their father Gullan in his judicial confession (Exh. 6) for having caused injuries to the deceased with their respective weapons e.g. a lathi and a hockey stick. It is no doubt true that this confession has, been retracted but since we have held this confession to be voluntary as well as true the retraction of the confession is wholly immaterial as pointed out in the well-known case of Joygun Bibi v. The State (3). In the words of Cornelius, C. J. :- "The retraction of a confession is a circumstance which has no bearing whatsoever upon the question whether in the first instance it was voluntarily made, and on the further question whether it is true. The fact that the maker of the confession later does not adhere to it cannot by itself have any effect upon the findings reached as to whether the confession was voluntary, and if so, whether it was true, for to withdraw from a self-accusing statement in direct face of the consequence of the accusation, is explicable fully by the proximity of those consequences, and need have no connection whatsoever with either its voluntary nature, or the truth of the facts stated. The learned Judges were perfectly right in first deciding these two questions, and the answers being in the affirmative in declaring that the confession by itself was sufficient, taken with the other facts and {{FOOT NOTE}}
(1) PLD 1971 SC 720 (2) PLD 1960 SC 21Y)
(3) PLD 1960 SC 313 {{FOOT NOTE}} ' circumstances, to support Abdul Majid's conviction. The retraction of the confession was wholly immaterial once it was found that it was voluntary as well as true. That being the case, no reason whatsoever can be found for the inability felt by the learned Judges in taking the confession into consideration against the co-accused. It is true that if there were no other evidence against Joygun Bibi except the confession of Abdul Majid, then, the confession by itself being merely a matter to be taken into consideration, and not having the quality of evidence against Joygun Bibi, it could rightly be held in law that her conviction could not be sustained on the confession alone. The grounds for this conclusion would undoubtedly gain weight if the confession were also retracted.
But in the present case, Abdul Majid's confession is by no means the only material in the case to be taken into consideration against Joygun Bibi. As will be seen presently, the 'evidence of the maid- servant Zahura furnishes a very complete and detailed account of the movements and behaviour of Joygun Bibi on the night in question, and particularly at and after the time of the murder, Joygun Bibi has not offered any explanation in answer to the questions put to her on the basis of Zahura's evidence and Abdul Majid's confession as to her behaviour that night. She has been content to repeat that she is innocent and to suggest that the case has been fabricated against her by her husband's younger brother, Sattar."
33. In this case their Lordships held that the conduct of Joygun Bibi s deposed to by P. W. Zahura coupled with the retracted judicial confession f her co-accused Abdul Majid was sufficient to sustain the conviction of oygun Bibi on the charge of murder of her husband, although there was no other direct evidence against her, at the same time pointing out that a conviction could not be sustained on such a confession alone as it was merely a matter to be taken into consideration and did not have the quality of evidence against the co-accused. To the same effect are the observations on two later authorities of the Supreme Court namely Maqbool Hussain v. He State (1) and Sideman Shah v. Ayoob (2). One has therefore, to consider as to what is the nature and evidentiary value of other evidence against these two appellants.
34. It has to be noticed in this connection that the offence has taken lace "inside the hedge" of the courtyard of the house of the appellants or in any case few paces just outside the entrance. It does not, therefore, stand to reason that while their father would be confronting the thieves, or at least one of them, by himself, his young and grown up sons would be leaping soundly inside the house.
The presence of the two appellants and their participation in this incident alongwith their father as stated in the titer's judicial confession is further established beyond any reasonable doubt by the presence of injuries on their person. As pointed out by the armed trial Judge these injuries on hand and arm could be sustained while faulting the deceased or by fall as deposed to by doctor Nameeruddin med. The version of these appellants was that these injuries were caused hem by the police in order to extort a confession from their father but s explanation was obviously false and was rightly not accepted by the nod Additional Sessions Judge. The medical evidence further shows that bout 1 p.m. On 21-7-1971 when the doctor examined these two appellants, injuries were about 12 hours old. This fits in with the time of incident {{FOOT NOTE}}
(1) PLD 1960 SC 382 (2) PLD 1971 SC 751 {{FOOT NOTE}} ' alleged in the case and is incompatible with the version of a police beating as alleged by the appellants. I have also given detailed reasons earlier for holding that there was no such pressure from the police in this case, while holding that the confession of appellant Gullan was both voluntary and true.
34-A. This is however by no means the only evidence against these appellants. Immediately after reaching the vardat in the morning, it was found by the police that the appellants were wearing blood-stained clothes and they secured a blood-stained shirt and shalwar from the person of appellant Muhammad Ibrahim and a blood-stained shalwar from the person of appellant Dhani Bux vide memo. Of recovery Exh.
16. There is absolutely no reason to doubt the evidence of mashir Dhani 13ux (P. W. 6) and Investigating Officer Faiz Muhammad, S. H.
0. Naushahro Feroze Police Station in this respect. According to the report of the chemical analyser (Exh. 2f) all the clothes were found to be stained with human blood. Neither of the two appellants have offered any explanation for this incriminating evidence but have simply denied the recovery by alleging that "it is false".
35. Still more important is the undisputed fact that immediately after recording the F. I. R. At 2-15 a.m. The police reached the scene of offence in the morning they found a hatchet, two pieces of nockey and one lathi lying at the vardat and these were secured vide mashirnama Exh. 15 the contents whereof have been fully supported by mashir Dhani Bux. This part of the prosecution case has not been disputed by the defence at any stage during the trial or even before us by the learned counsel appearing in support of the appeal. Besides, the scene of offence being right front of the house of the appellants, it is inconceivable that these articles could have been planted by any one at that odd hour of the night. Since it is no body's case that any of the alleged thieves was even armed or had left any weapons at the vardat, it follows that all the weapons namely the hatchet, hockey stick and lathi were used by the assailants of deceased Hafiz and they were at least three in number. The medical evidence also shows both incised as well as blunt weapon injuries on the person of the deceased thereby showing that more than one person participated in this incident. The presence of 3 assailants is also consistent with the large number of 22 injuries on the person of the deceased. Ali this evidence leaves no rooms for doubt that all the three appellants had participated in killing the deceased. Added to it, when the confession of appellant Gullan is also taken into consideration such an inference is inescapable, as the proved facts are absolutely incompatible with the innocence of these appellants and incapable of explanation on any other reasonable hypothesis except that of their guilt. It is inconceivable that a father would unnecessarily involve his sons in his confession unless the allegations levelled against them by him were really true.
36. For the reasons given above, we have absolutely no doubts in my mind that the guilt of all the three appellants has been clearly established beyond any reasonable doubt by evidence of an unimpeachable character an they have been rightly convicted. The learned trial Judge has awarded them the lesser punishment of imprisonment for life and has thereby give the maximum benefit to the appellants. This appeal is according' dismissed