1. DORAB PATEL, J.-Fariduddin was a medical student in the Peshawar University in 1972. He lived in one of the University Hostels and on the morning of 16-5-1972, he was found lying unconscious in Room No. 91 of one of the University Hostels. On learning of this mishap the Administrative Officer of the University informed the police that he had received a telephonic call that a boy in the University Hostel had been electrocuted. The Administrative Officer then went to Room No. 91 and as Fariduddin was unconscious he had taken him immediately to the Lady Reading Hospital, Peshawar. Fariduddin died the same day, and a case was registered for murder, but the name of the assailant was not given in the report as the murder was an unseen crime. The police, however claimed to have recovered a letter Exh. 18 written by the appellant to the deceased, therefore, they arrested the appellant the next day from his village in Malakand Agency. Next according to the police, the petitioner wanted to record his judicial confession, therefore, he was taken twice to a Magistrate, and on the second of these two occasions, the appellant's confession Exh. P. Z. Was recorded on 22-5-1972 by P. W. Lal Badshah, a Magistrate of Peshawar. As the murder was an unseen crime, the prosecution relied for its case against the appellant solely on this confession Exh.
2. P. Z. And on the letter Exb. 18.
3. The appellant denied the allegations made against him and stated that the confession Exh. P. Z. As well as the letter Exh. 18 had been obtained from him by the police under torture. He however did not produce any evidence.
4. The learned Additional Sessions Judge, who tried the appellant was of the view that the document Exh. P. Z. Was a confession in which the appellant had admitted having fired the fatal shots at Fariduddin. But as the appellant bad retracted his confession, the learned Additional Sessions Judge appears to have been of the view that some corroboration of the retracted confession was necessary, and as the learned Additional Sessions Judge held that the letter Exh. 18 furnished corroboration of the retracted judicial confession, he convicted the appellant under section 302, P. P. C. But as the appellant was a minor at the date of the offence; the sentence passed was imprisonment for life.
5. The appellant challenged his conviction in an appeal in the Peshawar High Court and one of the pleas advanced by him was that even though the statement obtained from him Exh. P. Z. Had been obtained by torture, it was not a confessional statement, but the learned Judges of the High Court rejected this plea and held that the confession was genuine and voluntary. They further observed that it was corroborated by circumstantial evidence and by the letter Exh. 18, therefore, they held that the prosecution had proved the appellant's guilt and dismissed his appeal.
6. The appellant said in the statement Exh. P. Z. That he was awaiting the results of the matriculation examination in May 1972, and as he had nothing to do, he went to Peshawar on 30th April 1972 to see his brother, Zahir Rabbani, who was staying in Room No. 77 of the hostel of the Peshawar University. Fariduddin deceased, was the room-mate of his brother, and on 3rd May 1972 four persons slept in Room No. 77. These persons were the appellant, his brother Zahir Rabbani, his friend Aminul Haq and Fariduddin. I will presently explain why I am referring to this document Exh. P.
7. Z. As a statement and not as a confession. But, reverting to this statement, the appellant then said in it :- "On 4-5-1972 at about 3 a.m., I felt that some one is sleeping in my charpoy and was trying to open my trousers string. At this I woke up - and saw that it was Fariduddin deceased who alighted from my charpoy and went outside. Moreover I felt some wetness on the rear portion of my Shalwar near my buttocks which appeared to me `semen'."
8. The appellant further said that due to shame and embarrassment he did not tell his brother or his friend, Aminul Haq, about what had happened at night and he took a bus with a friend to return home. He broke journey on the way home, and after spending a couple of days with his brother--- in-law, he reached his village on 7th May 1972. A few days later, a friend delivered to him a letter which had been posted to him. Next, according to the statement Exh. P. Z.: "I opened the letter and it was written by Fariduddin deceased from Peshawar. The contents of the letter which showed urge for homo-sexuality with Fariduddin deceased greatly shocked me.
9. Fariduddin deceased had displayed urge that I should yield to his lust for homo--sexuality. In the said letter Fariduddin deceased had written that I should fulfil his desire for homo-sexuality before 12th May 1972 and I was given warning that if I failed to meet his desire the matter would be publicly publishedI thought that I should go to Peshawar and meet Fariduddin deceased again, if he begged for apology I will give him apology. Before assuming journey I armed myself with a pistol25 bore carrying four cartridges in its magzine, mainly with this intention that I should defend myself from the evil desire of Fariduddinin case he attacked me again for homo-sexuality."
10. The appellant then went on to say that he reached Peshawar on the 13th of May 1972 and stayed a couple of nights with another friend Lal Muhammad. Then, on the 15th; he went to the University Campus with a letter for Fariduddin and left it in Room No. 77 of the University Hostel. Further according to his statement Exh. P. Z.: "I had written in the letter addressed to Fariduddin that he (Fariduddin) should not go to College on 16-5-1972, but instead should stay in the hostel where I intend to meet him. On 16-5-1972, when I went to. Hostel No. 1,1 saw Fariduddin deceased in the Verandah of Hostel No. 1. He made some gestures and `chic-chic'."
11. Finally, it is sufficient to state here that according to the statement, Fariduddin invited him to come to Room No. 91 which was vacant, therefore, he went to that room. The statement then goes on as follows "Only Fariduddin was present in the room. Fariduddin deceased showed his desire for homo- sexuality. I refused, At this Fariduddin deceased caught hold of me and laid me on the charpoy.
12. With one hand he held my two hands and neck and on the other he opened my string of trousers. It was about (9 or 9-15 a.m.). At this time I had my pistol loaded and it was lying in the pocket of my cotton vest. I told deceased Fariduddin to set the pedestal fan on as I was feeling heat.
13. When he turned about in order to set the fan in question on, I drew my pistol out of my pocket and fired at him three rounds, which hit him and as a result he fell down on the floor of the room."
14. The rest of the statement is not relevant. The appellant merely stated that he had run away from Room No. 91, returned home, informed his father of the occurrence, and as his father asked him for the letter by which Fariduddin had invited him to Peshawar, he handed over the letter to his father, which his father immediately destroyed.
15. On the assumption that this statement Exh. P. Z. Is a confession, as it was retracted and as the appellant was a minor at the relevant time, the obvious point for determination is whether the appellant could be convicted on the basis of this confession, and in The State v. Minhun alias Gul Hassan (PLD 1964 SC 813 ) this Court observed "Unless a retracted confession is corroborated in material particulars it is not prudent to base a conviction in a criminal case on its strength alone. It is the duty of the Court that is called upon to act upon a retracted confession to enquire into all the material points and surrounding circumstances and satisfy itself fully that the confession cannot but be true."
16. These observations state the settled law and the learned Judges of the High Court, who were referred to them, have stated in their judgment that the confession had been corroborated "in all material particulars".. The learned Judges did not care to state what those "material particulars" were, but on the whole, it would appear that the "material particulars" on which they relied were the particulars contained in the appellant's confession, that for example- "The appellant had come to Peshawar from Thana predetermined to vindicate his honour and had armed himself with a pistol. He kept his movements at Peshawar secret from his brother also and had approached the deceased in seclusion."
17. Now, no pistol was recovered from the appellant, nor was any evidence produced to show that the appellant had come to Peshawar armed with a pistol, or that he had kept his movements secret from his brother. Therefore, with respect, I am constrained to observe that the finding of the learned Judges that the appellant's retracted confession was corroborated by circumstantial evidence is contrary to the evidence on the record.
18. However, both the Courts were of the view that the retracted confession was corroborated by the letter Exh. 18, and in reaching this conclusion, they relied on the fact that the appellant admitted having written !He letter. Unfortunately, both the Courts omitted to examine the appellant's plea that the letter had been written under duress whilst he was in police custody, and as rightly submitted by Mr. Ismail, -here were circumstances which cast doubt upon the authenticity of this letter. Thus, for example, according to the recovery memo. Exh. C/1. This letter was secured from the clothes of 8 the deceased by Dr. Sarfaraz Khan, who carried out the post-mortem. Bu this witness did not say so, and, on the contrary, P. W. Ataullah, A. S. 1. Said that he secured it from "a personal search of the deceased". However, it would be necessary to examine these discrepancies only if this letter was a piece of corroboratory evidence, therefore, I will first examine the question whether this letter furnishes any corroboration of the retracted judicial confession.
19. The letter (Exh. 18) purports to be a reply to the request of the deceased to see him in order to enable him "to fulfil his desire for homo-sexuality". And as the appellant had made a date with the deceased by this letter, the Additional Sessions Judge observed that it betrayed "some amount of mens rea for the crime on the part of the accused, because it directs the deceased to be alone and fixes the time of the accused's visit to him". The mensrea for the offence for which the appellant was tried was the intention to kill "with malice afore-thought". Now there is not a word in the letter toy convey even a threat to the deceased, but the trial Court has read the letter to mean that the appellant had reciprocated the desire of the deceased for an affair, and it has held that this admission by the appellant of a desire for a homo-sexual attachment was a piece of evidence which corroborated the confession in material particulars. But a piece of evidence can furnish corroboration of a confession only if it renders more probable the inculpatory part of that confession, therefore, even if the letter Exh. 18 contained an admission, as held by the trial Court, at the highest, that admission affects the probability of the statement in the confession that the appellant has met the deceased on the day of the occurrence. But this admission does not throw any light whatever on, much less affect in any way the probability of the statement of the appellant in his confession that he had fired at the deceased, and as this was the only possible inculpatory statement in hi confession, the letter is of no corroborative value whatsoever. Hence m observation that the prosecution case against the appellant rests solely on his retracted confession.
20. Mr. Ismail also submitted that this confession was neither genuine nor voluntary, and the plea that it was not voluntary is supported by an admission which the Investigating Officer made very reluctantly in his cross-exami--nation. The witness said, but only under the compulsion of the cross---examination, that- "the accused was arrested on 18-5-1972 late in the afternoon and was produced to the Ilaqa Magistrate next morning. The accused remained in the P. S. On the night between 18-5-1972 and 19- 5-1972. He was interrogated by me that night. He was prepared to make a confession on the first night. The accused was prepared to make a confession and was produced on 19-5-1972 before a Magistrate for obtaining a police custody but his confessional statement was not recorded that day because I wanted to recover pistol, used in the occurrence first."
21. The explanation given by the witness for the delay in recording the appellant's confession does not inspire confidence, the more so, as the appellant was a minor. However, it is not necessary to go into this aspect of the case, because I am satisfied that the confession, if it can be so described, does not make out the ingredients of section 302, P. P. C. I had, therefore, deliberately referred to it earlier as a statement. As the statement was very lengthy, 1 have only referred to the relevant passages on which the prosecution case could possibly be based. Now what precisely were the admissions made by the appellant, young as he was, in these passages? The appellant said that when he was first staying in the hostel with his brother, the deceased, taking advantage of his being fast asleep, had tried to commit sodomy on him, and he was so disgusted by the conduct of the deceased that he had immediately returned home, without speaking to any one about the incident which made him feel ashamed. The deceased had then tried to blackmail him into succumbing to his urges, therefore he had returned to Peshawar to vindicate his honour. Then he gave the details of the manner in which he had met the deceased on the day of the occurrence, and at the highest, these details can mean that the appellant was hovering on the brink of the abuse and toying with the idea of succumbing to the temptation thrown by the deceased in his path. But when the deceased tried to commit sodomy on him, his conscience got the better of him, and he fired at the deceased in order to prevent the deceased from committing sodomy on him.
22. The only possible inculpatory statement in this so-called confession is the statement that the appellant had gone to see the deceased alone in a room in the hostel, despite the background of the events that had happened. But as I indicated earlier, if a man is tempted to succumb to the unnatural advances of another, the fact that he was so tempted cannot by any stretch of imagination be equated with a desire to kill the object of his affection, and as the appellant was being tried for murder, his description of the manner in which he met the deceased on the fateful morning was not in any way inculpatory. All that he then said was, that he had fired at the deceased, as the deceased commenced his physical assault on him. Now although the judgment is not clear on this crucial aspect of the case, on the whole, the learned Judges of the High Court appear to have treated this statement as an admission of guilt, although their attention was drawn to the judgments of the Privy Council in Pakala Narayana Swami v. Emperor (AIR 1939 PC 47). In this authority, Lord Atkin, who pronounced the judgment of the Board, observed at page 52 "As the point was argued however and as there seems to have been some discussion in the Indian Courts on the matter it may be useful to state that in their Lordships' view no statement that contains self-exculpatory matter can amount to a confession, if the exculpatory statement is of some fact which if true would negative the offence alleged to be confessed. Moreover, a confession must either .Admit in terms the -offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession, e.g., an admission that the accused is the owner of and was in recent possession of the knife or revolver which caused a death with no expla--nation or any other man's possession." if the appellant had merely said in his so-called confession that he had fired at the deceased, it would have been an inculpatory statement. But what he said was that he had fired at the deceased after the deceased had opened the string of his trousers. In other words; he had fired at the deceased after the deceased had attempted to commit sodomy on him, and under section 100 of the Penal Code, the right of private defence of the body extends even to the voluntary causing of death; "if the offence which occasions the exercise of this right isan assault with the intention of gratifying unnatural lust".
23. The appellant's statement read as a whole was, therefore, sufficient by itself and without any arguments to bring his case under section 100, P. P. C. And far from being an admission of guilt, it was a repudiation of guilt on the basis of section 100, P. P. C. It was thus a statement of a fact which in the words of Lord Atkin "if true would negative the offence alleged to confessed". Therefore, the learned Judges erred in law in 'holding that this statement Exh. P. Z. Was a confession, and that is why I had earlier referred; to it as a statement.
24. Another illegality in the judgments under appeal is that the conviction of the appellant by both the Courts is really based, as I explained, on this so-called confession only. But as this so-called confession was a repudiation of liability, what the Courts did was that they accepted those passages in the statement Exh. P. Z.
25. Which appeared in their opinion to support the case of the prosecution case, and they rejected the exculpatory part of the statement. Mr. Ismail submitted that it was open to a Court to base a conviction solely on the confession or on the statement of an accused, but in that event the Court, could not reject that part of the statement or confession which went against the prosecution case.
26. The submission is correct. Mahajan, J., observed in Hanumant Govind Nargundi and another v.
27. State of Madhya Pradesh (AIR 1952 SC 343) at page 350: "It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him."
28. I agree with these observations, and on this ground also it is clear that the appellant's conviction was illegal, and that it was a case of no evidence. Accordingly, after hearing both the learned counsel, we have allowed the appeal and set aside the appellant's conviction. 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.