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Petitioner: FAZAL HUSSAIN-CONVICT VS Respondent: THE STATE
P L D 1958 (W
P L D 1958 (W. P.) Lahore 142
Before Abdul Aziz Khan, J
FAZAL HUSSAIN‑Convict‑Appellant
Versus
THE STATE‑Respondent
Criminal Appeal No. 156 of 1957, decided on 6th December 1957, appeal from the order of Nazeer Ahmad Mahmood, Sessions Judge, Jhelum, dated the 20th October 1956.
(a) Confession‑-
Admission or confessional statement by accused‑Must be taken as a whole.
The only limitation which the law places on the use of an accused's admission or confessional statement is that it has to be taken as a whole.
(b) Conviction
Accused can be convicted on his own statement even if the prosecution evidence is rejected.
Bhola Nath v. Emperor A I R 1929 All. 1; Gul Muhammad v. The Emperor A I R 1945 Sind 42; Crown v. Surjya Mumar Sen 147 I C 32 and Safdar Ali v. The Crown P L D 1953 F C 93 ref.
Muhammad Ismail Bhatti for Appellant.
Rashid‑ud‑Din for A. G. for Respondent.
Dates of hearing: 8th and 11th November 1957.
JUDGMENT
ABDUL AZIZ KHAN, J.‑Fazal Hussain alias Fazlu, Mansabdar alias Munshi and Pehlwan alias Bhana were tried by the learned Sessions Judge, Jhelum, under section 302/34 of the P. P. C. for the murder of Fazal Ilahi on the 4th of June 1956, in the area of village Ghurki, District Jhelum. The learned Sessions judge acquitted Mansabdar and Pehlwan, but convicted Fazal Hussain under section 304 Part I of the P. P. C. and sentenced him to five years' rigorous imprison ment. Fazal Hussain has appealed to this Court against his conviction and sentence.
Briefly stated the prosecution case is that three or four years before the occurrence under consideration, the appellant committed an indecent assault on Mst. Eli Begum, wife of Abdur Rahman (P. W. 14), a brother of Fazal Ilahi deceased. On learning of this incident from his brother, Fazal Ilahi deceased, Abdur Rahman P. W., who was then posted as a Foot Constable at Rawalpindi, came to his village and made inquiries from Mst. Ali Begum. Suspecting that Mst. Ali Begum was a woman of easy virtue, Abdur Rahman P. W. turned her out of his house and later divorced her. Fazal Hussain appellant had, however, disappeared from the village before the arrival of Abdur Rahman P. W. As a result of the above incident, Abdur Rahman P. W. and his brothers, Karam Ilahi (P. W. 7) and Fazal Ilahi deceased, stopped being oil speaking terms with Fazal Hussain appellant and his maternal uncle, Mansabdar.
The marriage of Maryam Bibi, the stepsister of Sadiq son of Jawan (P. W. 11.) was to be solemnised on the 4th of June 1956. Fazal Ilahi deceased, Diwan Ali (P. W. 6), Karam Ilahi (P. W. 7), Mansabdar (who has been acquitted) and Fazal Hussain appellant reached the house of Sadiq P. W. on the evening of the 3rd of June 1956 to attend the wedding. Fazal Ilahi deceased told Sadiq P. W. that he would not participate in the marriage ceremony if Mansabdar (who has been acquitted) and Fazal Hussain appellant were also present. Thereupon, Sadiq (P. W. 11) asked Mansabdar (who has been acquitted) and his nephew, Fazal Hussain appellant, to leave his house. According to the prosecution, the above incidents had strained the relations between the parties and this is said to have resulted in Fazal Ilahi's murder.
On the 4th of June 1956, Fazal Ilahi deceased took his buffalo towards kansi kassi for watering it. His wife Mst. Mehtab Nishan (P. W. 8) followed him with a pitcher. When Fazal Ilahi deceased was passing in front of the house of Mansabdar (who has been acquitted), the appellant and his companions (Mansabdar and Pehlwan who have been acquitted) attacked him with the blunt side of their kulharis. Fazal Ilahi fell down on receiving injuries and instantaneously died on the spot. Thereafter, the appellant and Pehlwan (who has been acquitted) dragged Fazal Ilhahi's dead body into the courtyard of the appellant's house. The occurrence is alleged to have been seen by Mst. Mehtab Nishan, widow of Fazal Ilahi, (P. W. 8). Kale Khan (P. W. 9) and Sadiq son of Ahmi (P. W. 10). Kale Khan P. W. went to deceased's brother, Karam Ilahi (P. W. 7), and informed him of what he had seen. Karam Ilahi then went to the Police Station Sohawah and lodged the first information report Eah. P. A. on the same day at about 4 p. m.
Sub‑Inspector Rab Nawaz Khan (P. W. 16) reached the spot at 10 p.m. He saw the dead body in the courtyard of the appellant and prepared the injury statement and the inquest report and then sent the dead body to the mortuary for post‑mortem examination. The Sub‑Inspector collected blood‑stained earth from two different places, i.e., the court yard of the appellant and a place in the lane in front of the house. The Sub‑Inspector made two different parcels of the blood‑stained earth vide memo. Exhs. P. C and P. D.
Dr. Amanullah (P. W. 1), who conducted the post- mortem examination on the 6th of June 1956, at 7 p.m., observed the following injuries on Fazal Ilahi's dead body:‑
(1) Contused wound on the, right side of the forehead directed onwards and outwards, 2" x " x bone deep. The frontal bone underneath was fractured and depressed along its whole length.
(2) Contused wound, on the right side of head, 2 " above the right ear, 2 " x ", bone deep in front to back directions.
(3) Contused wound, " below injury No. 2, 1" x 1", bone deep.
(4) Pinna of the right ear was crushed and covered over by clotted blood.
(5) Bluish contusion mark across the left thigh directed downwards and inwards, 4" x ".
(6) Vertical scratch on the left knee, 1" x ".
(7) Two scratches on the outer side of the right leg, each " x ".
(8) Bluish contusion mark on the right side of the abdomen above the groin, 3" x 1".
(9) Bluish contusion mark on the breast bone, 1" x 1". The bone was fractured.
(10) Bluish contusion mark above the right nipple directed downwards and outwards, 3" X 1". Second, third and fourth right ribs were fractured underneath.
(11) Bluish contusion mark on the back of right shoulder, 1" x 1".
(12) Transverse abrasion on the back in the middle line below the chest, 1" x ". Edges of all the bones were blood‑stained.
In the opinion of the doctor, death was due to depressed fractures of the skull. The doctor was also of the opinion that injuries Nos. 1 and 2 were individually sufficient in the ordinary course of nature to cause death:
The appellant made 'the following statement before the committing Magistrate:‑
"I was coming to my house after taking a bath at the well. On reaching my house, I heard the cries of Mst. Farzand Begum, wife of my brother Lal Hussain. On entering the house, I found Fazal Ilahi deceased criminally assaulting her. I tried to rescue her, at which Fazal Ilahi assaulted me. Thereupon, I took up a stick lying in the courtyard and gave him injuries. No occurrence took place outside my courtyard on the pathway and none of the other accused was with me".
The appellant stated before the Sessions Judge:‑
"I did not state before the committing Magistrate that when I entered my house I had found Fazal Ilahi beating Mst. Farzand Begum. I had stated there that I found Fazal Ilahi deceased making an indecent assault on Mst. Farzand Begum".
The learned Sessions judge has appended the following note to this statement:‑
"The statement of the accused was read out to him from the Urdu record where the word "mar" is used, but in the English record, the word "criminal assault" is used".
It appears that the Reader translated the word "criminal assault" into "mar".
The learned Sessions judge held that the eyewitnesses had not seen the occurrence and that the prosecution version that Fazal Ilahi's dead body was dragged from the lane into the appellant's courtyard was not supported by the medical evidence. The learned Sessions judge accepted the appellant's version as would appear from the following passage occurring in his judgment:‑
"In the circumstances of the case Fazal Hussain accused's version has to be accepted as correct. According to this version Munshi and Pehlwan accused had nothing to do with the crime and Fazal Hussain accused alone was res ponsible for the death of Fazal Ilahi deceased. According to this confessional statement his assault was in the exercise of right of private defence, and on grave and sudden pro vocation, but it appears to me that he exceeded the right of private defence, for such a serious assault on the deceased .was not necessary to prevent him from proceeding with the indecent assault. Whether his assault be regarded in the exercise of right of private defence or excited by grave and sudden provocation, the accused appears to me, in the circumstances of the case, 'to be guilty of an offence of culpable homicide not amounting to murder".
The learned counsel argued that the onus of proving the guilt of an accused always lies on the prosecution. He further argued that once the prosecution evidence is rejected, the accused is entitled to acquittal in spite (if a qualified admission of guilt, as in the present case. He was, however, unable, to cite any direct authority on the point and relied on Safdar Ali v. The Crown (P L D 1953 F C 93). I have carefully gone through this judgment. In my opinion; the above case does not support the proposition put forward by the learned counsel.
On the contrary, the following authorities, which were not cited at the bar, lay down that an accused can be convicted on his own statement, even if the prosecution evidence is rejected.
In Bhola Nath v. Emperor (A I R 1929 All. 1), Mookerji, J. made the following observation:‑
"If, on the whole of the statement of the accused person, taken together, his guilt is established, and his plea, say, of acting in self‑defence or of the case falling within any of the general or special exceptions are not made out on the facts admitted, there cannot be any bar to a conviction, simply because the prosecution evidence, by itself, would not have secured a conviction. Let us take this example:
A is charged with murder. The prosecution evidence is vague and not conclusive. A on being questioned makes the following statement
"The deceased, two days before the murder, insulted me, in open market, by abusing me and by beating me with a shoe. .On the day of occurrence, I found him returning to his house alone and I struck him with a lathi, he fell from the high ground on which he stood and thereby broke his head".
The medical evidence, let us suppose, points to only one lathi blow on the back of the deceased and is consistent with the accused's statement. Can the accused person be convicted of murder? Let us assume, there is no eye witness worthy of belief and the Court is bound to disbelieve the witnesses, I suppose it would be impossible to convict A of murder. But A may surely be held guilty of causing simple hurt, on his own statement. He has nothing to complain of, if his whole statement be accepted and he is convicted on it. He need not have made a statement, but having made one, he may be held guilty, on it".
Similarly, a Bench of the Sind Chief Court held in Gul Muhammad v. The Emperor (A I R 1945 Sind 42) as follows:‑
"The statement of an accused recorded under section 342 can be treated as evidence. It has no less probative value than any other "matter", including sworn testimony, which may be taken into consideration against him within the contemplation of the definition of 'proved' in section 3, Evidence Act".
A full Bench of the Calcutta High Court held in Crown v. Surjya Mumar Sen (147 I C 32):‑
"If a person voluntarily, elects to put on record a state ment of his criminal activities, and thereafter neither repudiates that statement nor offers a reasonable explana tion of it, he has no grievance whatever if the Court regards that statement as conclusive against him. In such circumstances there is no burden placed on the Crown of establishing the truth of the admissions of guilt aliunde".
It will be seen from the above authorities that there is no l force in the argument of the learned counsel. The only limitation which the law places on the use of an accused's A admission or confessional statement is that it has to be taken as a whole.
I have carefully considered the statement of the appellant before the learned Sessions judge in the light of this principle. The appellant stated that when he entered the house, he found the deceased making an indecent assault on Mst. Farzand Begum. This statement does not bring the case within "Thirdly" of section 100 of the P. P. C. In order to attract the provisions of section 100, "Thirdly", the assault must be with the intention of committing rape. It cannot, however, be denied that .the appellant must have received grave and sudden provocation on seeing the deceased com mitting indecent assault. on Mst. Farzand Begum. His case is, therefore, covered by Exception 1 to section 300 P. P. C. The learned counsel urged for the reduction of the sentence, In all the circumstances of the case, a sentence of three years' rigorous imprisonment will meet the ends of justice Accordingly I reduce the sentence imposed on him from five years to three years, Except for this modification of the sentence, the appeal is rejected.
K. B. A. Appeal rejected. Sentence reduced.