PLJ 2010 Cr.C. (
Present: Akhtar Zaman Malghani and Muhammad Maher Khan, JJ.
ABDUL QADEER and others--Appellants
STATE and others--Respondents
Crl. Appeal No. 112 of 2008 & Crl. R. No. 14 of 2008,
decided on 11.5.2009.
----S. 303(a)--Qatl committed under ikrah-i-tam--Conviction and sentence recorded against appellant by trial Court--Challenge to--Appeal against--Prosecution heavily relied upon confessional statement of appellant recorded by judicial Magistrate--Circumstantial evidence--Disclosure of appellant before police admitting has guilt is not admissible in evidence being an admission before police as in consequence to this disclosure no recovery of any incriminating article was affected--Appellant got recorded his confessional statement just after three days of his arrest, confessional statement was voluntarily though it was retracted--Confessional statement was exhaustive in nature and contains such facts which were in exclusive knowledge of appellant--Confessional statement is further corroborated by statement of P.W from whom he hired C.D film after commission of offence which fact was also narrated by him in his confessional statement, as well as by medical evidence--As such his retracted confession corroborated by circumstantial evidence could be safely relied--Held: In absence of any other evidence confession of accused is to be considered in toto--According to confessional statement during span of 7/3 years appellant was continuously subjected to sodomy by deceased by extending threats and black mailing him, as such, on fateful night when he again took him to school for committing sodomy he made firing upon him with his pistol and went away--At time of committing offence appellant was a grown young man who was subjected to sodomy when he was child but deceased continued his shameful act for about 7/8 years; even not stopped to commit sodomy through appellant had grown up--Therefore, appellant has committed offence punishable u/s 302 (c) PPC which also covers offences punishable u/s 304 (old) PPC--Trial Court found appellant guilty u/s 303 (a) PPC providing punished for committing Qatl under ikrah-I-tam which section was not applicable in this case--However, from the circumstances it is established that appellant who was forced by circumstances to cause death of deceased has exceeded his right of self defence available to him u/s 100 PPC, therefore, charge was altered from S. 303 (a) PPC to that of 302(c) PPC and sentence was altered--Appeal disposed of. [P. ] A, B, C, D, G & I
PLD 1996 S.C.274, rel.
----Principle--In absence of any other evidence confession of accused is to be cosnidered in tot. [P. ] E
----Ikrah-I-tam--Defined in sub clause (g) of S. 299, PPC--Meaning of--Putting any person, his spouse or any of his blood relations within prohibited degree of marriage in fear of instant death or instant permanent impairing of any organ of body or instant fear of being subjected to sodomy or zina-bil-jabr--S.303 (a) PPC provides punishment for a person who commits Qatle under Ikrah-I-tam as well as for person who causes such Ikrah-I-tam--It he commits murder of that person who had put him, his spouse or any of his blood relations within prohibited degree of marriage in fear of instant death or instant permanent impairing of any of organ of body or instant fear of being subjected to sodomy or Zina-bil-Jabar said clause would not be attracted otherwise second part would become redundant which provides punishment for person causing such ikrah-I-tam--In other words Qatl is in respect of another person and not person who has caused Ikrah-I-tam as otherwise person causing Ikrah-I-tam could not be punished under Second part at-all--Such interpretation would also negate provisions relating to right of private defence which extends to causing death in case where such assault causes apprehension of death or grievous hurt or is with intention of committing rap, unnatural lust or kidnapping or abduction. [P. ] H
Mr. Abdul Kareem Khan Yousafzai, Advocate for Appellant (in Crl. Appeal No. 112 of 2008).
Mr. Abdullah Kurd, Advocate for State (in Crl. Appeal No. 112 of 2008 and Crl. R.P. No. 14 of 2008) and for Respondent No. 1 in Crl. Revision No. 1 of 2008.
Mr. Muhammad Qahir Shah, Advocate for Petitioners in Crl. R. No. 14 of 2008.
Date of hearing: 27.04.2009.
Akhtar Zaman Malghani, J.--By this judgment we intend to dispose of Criminal Appeal No. 112 of 2008 and Criminal Revision No. 14 of 2008 arising out of the same and common judgment dated 30.04.2008 whereby appellant was found guilty under Section 303 (a) P.P.C. and sentenced to 14 years R.I.
2. Briefly seated, facts of case are that on 22.02.2004 a case under Section 302 P.P.C was registered in Police Station Sadar, Quetta on the report of Nazir Ahmed wherein it was alleged that on the said date he received information about murder of his brother Abdul Razaq in Killi Ismail High School whereupon he went to school where dead body of his brother was lying in pool of blood. He further stated that on previous evening his brother went out of the home and did not return in the night.
3. After registration of case investigation was carried out by P.W.12 Tariq Manzoor IP who prepared inquest report and dispatched dead body for post mortem whereafter he prepared site plan and secured blood stained earth from the place of occurrence. He also secured six empties of T.T and two lead bullets and recorded statements of witnesses. He arrested appellant in the instant case and it is stated that he admitted his guilt by recording his confessional statement under Section 164 Cr.P.C. After completion of investigation he submitted challan.
4. On commencement of trial charge was read over to appellant, to which he pleaded not guilty whereafter prosecution produced following witnesses:--
(i) P.W. 1 Nazir Ahmed lodged report on receiving information about murder of his brother. He has stated nothing about involvement of appellant.
(ii) P.W.2 Abdullah Jan also went to the High School after receiving information about murder of his brother and found his body lying there.
(iii) P.W.3 Meera Jan is father of deceased who also deposed about receiving information about murder of his son Abdul Razaq.
(iv) P.W.4 Muhammad Hayat deposed that at about 11:30 p.m. he went on his duty in school where he was employed as Chowkidar and at about 7 a.m. when he went to fetch water from tap he saw a dead body lying in front of latreen whereupon he informed Muhammad Asim and Illaqa Nazim.
(v) P.W.5 Rafiq Ahmed is witness to site plan.
(vi) P.W.6 Dr. Fareeda examined dead body of the deceased and found following injuries.
(i) Fire-arm wound of entrance on right Temporal 2x2.
Exit: on left side of temporal region 3 cm.
(ii) Fire-arm on right eye 2x2 cm.
Exit on left side of Nose.
(iii) Fire-arm on tip of Nose. Exit on occipital region.
(iv) Five arm on humerus & exit left humerus.
(vii) P.W.7 Raz Muhammad is witness to seizure of blood stained clothes, six teeth, one blood stained Chadar, six empties of pistol, Knife alongwith Knuckle duster Article P/2 which was recovered from personal search of dead body.
(viii) P.W.8 is witness to disclosure allegedly made by appellant during investigation admitting his guilt.
(ix) P.W.9 Answar Iqbal deposed that he was owner of "Hamam" where on 21.02.2004 two persons came for shave but he could not identify them.
(x) P.W.10 Inayat
Ullah, the then Judicial Magistrate,
(xi) P.W. 11 Ali Ahmed deposed that on 21.02.2004 appellant hired a C.D of Commando Picture and in this regard he made entries in his Register.
(xii) P.W.12 Tariq Manzoor is Investigating Officer.
5. At the end of prosecution evidence appellant was examined under Section 342 Cr.P.C wherein he denied all the allegations and claimed innocence. He neither opted to give statement on oath nor produced any witness in his defence. On conclusion of trial learned Additional Sessions Judge-Ill, Quetta found the appellant guilty under Section 303 (a) P.P.C and sentenced him as mentioned above. The complainant has filed revision for enhancement of sentence which is being disposed of alongwith appeal.
6. We have heard learned counsel for appellant as well as learned counsel for complainant and learned State Counsel. Learned counsel for appellant vehemently contended that there was no evidence on record except confessional statement of appellant which was retracted, as such; conviction could not be based upon said retracted confessional statement without any independent corroboration. He further contended that even otherwise confessional statement has to be taken into consideration in toto, as such; even if prosecution version is accepted appellant was entitled to acquittal having committed murder of deceased in order to avert sodomy. He next argued that the provisions of Section 303 (a) P.P.C were not attracted in the instant case.
On the other hand learned State counsel supported the judgment and contended that the appellant was rightly found guilty under Section 303 (a) P.P.C.
Learned counsel for complainant vehemently argued that the murder of deceased was committed by appellant intentionally after having armed himself with pistol, as such; he was liable to be punished under Section 302 P.P.C and the learned trial Court erred in law by convicting him under Section 303 (a) P.P.C.
7. We have carefully considered the contentions put forth by parties' learned counsel and have also gone through the impugned judgment as well as evidence on record. Homicidal death of deceased has not been disputed by defence which is even otherwise proved through the evidence of Dr. Fareeda who opined that the deceased met to unnatural death occurred due to bullet injuries.
8. The prosecution alleged that deceased was murdered by appellant and in this regard it heavily relies upon confessional statement of appellant recorded by P.W. 10 Inayat Ullah the then Judicial Magistrate. Besides, prosecution also place heavy reliance on other circumstantial evidence such as disclosure of appellant and pointation of place from where he had hired C.D film and "Hamam" where he had gone alongwith the deceased. So far disclosure of appellant before police admitting his guilt is concerned, same is not admissible in evidence being an admission before police as in consequence to said disclosure no recovery of any incriminating article was affected.
9. Adverting to confessional statement of appellant; it may be noted that the appellant was arrested by police on 05.03.2004 who got recorded his confessional statement just after three days on 08.03.2004, as such; it can be safely concluded that confessional statement was voluntarily. Though the said confessional statement was retracted and it has been pleaded that the same was result of torture but we are not inclined to accept such plea in view of statement of P.W.10 Inayat Ullah who stated that apparently there was no sign of torture on the person of appellant. Similarly we could not doubt truthness of facts narrated in the confessional statement as the said confessional statement is exhaustive in nature and contains such facts which were in exclusive knowledge of appellant. The said confessional statement is further corroborated by statement of P.W. Ali Ahmed from whom he hired CD Film after commission of offence which fact was also narrated by him in his confessional statement as well as by medical evidence, as such; his retracted confession corroborated by above discussed circumstantial evidence could be safely relied. However; question arises as to whether in absence of any other evidence proving that appellant committed Qatl-I-Amd he could be found guilty for offence punishable under Section 302 (b) P.P.C or for that matter under Section 303 (a) P.P.C as concluded by the learned trial Court. It is well settled that in absence of any other evidence confession of accused is to be considered in toto. In his confessional statement appellant had narrated circumstances forcing him to commit murder of deceased Abdul Razaq. According to him about 7-8 years back during a marriage ceremony deceased forcibly took him to a room where he committed sodomy with him whereafter he repeatedly not only committed sodomy with him but also black mailed him by taking his necked photo graphs on account of which he had to leave his school. According to confessional statement during span of 7/8 years he was continuously subjected to sodomy by deceased Abdul Razaq by extending threats and black mailing him, as such; on the fateful night when he again took him to Killi Ismail High School for committing sodomy he made firing upon him with his pistol and went away. It may be observed that appellant was referred to medical officer for determining his age in March, 2005 and according to medical opinion he was about 20 years old which means at the time of committing offence he was 18-19 years old a grown young man who was subjected to sodomy when he was child but the deceased continued his shameful act for about 7/8 years; even not stopped to commit sodomy though the appellant had grown up, therefore, in our considered view, appellant has committed offence punishable under Section 302 (c) P.P.C which also covers offences punishable under Section 304 (old) P.P.C as held in the judgment reported in PLD 1996 S.C 274 but the learned trial Court found the appellant guilty under Section 303 (a) P.P.C. providing punishment for committing Qatl under Ikrah-e-Tam which section was not applicable in the instant case because Ikrah-e-Tam has been defined in sub clause (g) of Section 299 which reads as under:--
"ikrah-e-tam" ( ) means putting any person, his spouse or any of his blood relations within the prohibited degree of marriage in fear of instant death or instant permanent impairing of any organ of the body or instant fear of being subjected to sodomy or zina-bil-jabr.
Section 303 (a) P.P.C provides punishment for a person who commits Qatl under Ikrah-e-tam as well as for the person who causes such Ikrah-e-tam, therefore, if he commits murder of that person who had put him, his spouse or any of his blood relations within the prohibited degree of marriage in fear of instant death or instant permanent impairing of any of the organ of body or instant fear of being subjected to sodomy or Zina Bil Jabar, the said clause would not be attracted otherwise the second part would become redundant which provides punishment for the person causing such Ikrah-e-tam, in other words Qatl is in respect of another person and not the person who has caused Ikrah-e-Tam as otherwise person causing Ikrah-e-Tam could not be punished under the second part at-all. Furthermore; such interpretation would also negate the provisions relating to right of private defence which extends to causing death in cases where such assault causes apprehension of death or grievous hurt or is with the intention of committing rap, unnatural lust or kidnapping or abduction, however; from the circumstances of case it is established that appellant who was forced by the circumstances to cause death of the deceased has exceeded his right of self defence available to him under Section 100 P.P.C., therefore, we alter the charge from Section 303 (a) P.P.C to that of 302 (c) P.P.C and sentence him to seven years R.I. Benefit of Section 382-B Cr.P.C is also extended in his favour. Consequently revision petition is dismissed.
(Sh.A.S.) Appeal disposed of.