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Criminal Appeal No. 21 of 1973, decided 5th December 1975.

(On appeal from the judgment and order of the Lahore High Court, Bahawalpur Circuit. Baghdadul Jadid, dated 26‑1‑1971 in Criminal Appeal No. 31 of 1969 (BWP)).

‑‑‑‑ S. 304, Part II‑Culpable homicide neat amounting to murder‑Ac cused admitting to have caused injuries to deceased, placed hint on a she‑camel and, taken to police station‑Possibility of any third person causing injuries to deceased excluded‑Number of injuries and their locale clearly showing that after delivering large number of blows with a stick to deceased accused eventually strangulated him to death‑‑ Accused admitting throughout to have caused death though attempting to minimise offence by advancing theory of private defence of property and person‑Admissions, even taken as whole making lout case of exceeding right of private defence and bringing home to amused in light of medical evidence, offence of culpable homicide not amounting to murder‑Accused held., rightly convicted under S. 304(II).

Maqbool Ahmad,

Advocate‑on‑Record for Appellant.

Riaz Ahmad, Assistant A.‑G., Punjab for the State.

Date of hearing: 5th December 1975.

MUHAMMAD YAQUB ALI, C. J.

‑‑The appellant, was tried, alongwith two others, for the offence under section 302 read with section 34. P. P. C. by Ch. Ghulam Hussain, Sessions Judge, Bahawalpur. While (he other two were acquitted, the appellant was convicted, and sentenced to transportation. for life for committing the murder of one Mukhtar.

On appeal, the learned Judges of the High Court altered the conviction to section 304, Part II, and reduced the sentence to 7 years' R.I.

There were two eye‑witnesses in the case who were not relied upon either by the Sessions Judge or by the learned Judges of the High Court.

However, the petitioner had, in his statement before the committing Magistrate and the statement made by him under section 342 of the Code, before the Sessions Judge admitted that he had caused injuries to Mukhtar as a result of which he bad died. The appellant's conviction by the Sessions Judge as well as by the High Court is, based on these admissions.

Leave to appeal was granted to consider whether conviction in the case was justified on the mere admissions made by the convict.

With the help of Rana Maqbool Ahmad Qadri, Advocate-on‑record for the appellant and Mr. Riaz Ahmad, Assistant Advocate‑General: we have examined the evidence and agree with the learned Judges of the High Court that the admissions made by the appellant before the committing Magistrate and the Sessions Judge, were, in the circumstances of tine cage, sufficient to convict him under section 304, Part II, P. P. C'..

After causing injuries to Mukhtar on 15‑11‑1967. in the

area of Chak No. 190/Murad. the appellant and his relations placed him on the back of a she‑camel and took him to the Police Station Hasilpur. A report was lodged there by the appellant that Mukhtar had stolen his she‑camel and when he challenged him, Mukhtar threatened to assault him with a hatchet. However, the appellant succeeded in snatching away the hatchet and caused injuries with it to Mukhtar who had died on the way to the police station. On the basis of the F. I. R., a case, under section, 382. P. P. C. was registered at the police station against Mukhtar deceased but two days later, a counter F. I. R. was lodged by Ghulam Nabi, P. W. 14, brother of the deceased, on which a case under section 302, P. P. C. was registered against the appellant. Besides himself, he cited two eye‑witnesses namely. Muhammad Akram, P. W. 15, and Shah Muhammad, P. W. 16. he is stated in the F. I. R. that after Ghulam Nabi had seen the occurrence, he proceeded to Sadiqabad to fetch his father and on his return he come to the police station to lodge the report.

The Sessions Judge and the learned Judges in the High Court did' not rely on the witnesses as the explanation given by them for lodging the F. I. R. two days after Mukhtar was done to death, was not at all convincing. Excluding the account given by the eye‑witnesses, the only evidence of guilt brought on the record was the admission made by the appellant before the committing Magistrate and before the Sessions Judge that he had caused injuries to Mukhtar as a result of which he died. During the trial, he made a departure from the account given by him in the F. I.R. It. and deposed that he was armed with a driving stick and had caused injuries with it to the deceased.

The post‑mortem examination conducted by Dr. Muhammad Azim, Medical Officer, Civil Hospital, Hasilpur, revealed that the deceased had been caused as many as 18 injuries including a ligature mark on the left side of the neck. The scalp was injured and the brain was contused but death was mainly caused 'by asphyxia. .

Since the appellant admitted that after causing injuries to Mukhtar he bad placed hint on the back of a she‑camel and taken him straight to the police station, the possibility of any third person causing injuries to Mukhtar deceased was excluded. The number of injuries and their local made it clear that after delivering a large number of blows with a stick to Mukhtar, the appellant eventually strangulated him to death. In the account given by him in the' F. I. R. lodged at Police Station, Hasilpur of 15‑11‑1967, ‑and the statements made before the committing Magistrate and the Sessions Judge, the responsibility for causing the death of Mukhtar was admitted though an attempt was made to minimise the offence by advancing the theory of private defence of property and person. These admissions even taken as a whole made out a case of exceeding the right of private defence and in: the light of the medical evidence mentioned above, brought home to the appellant the offence of culpable homicide aw amounting to murder. The conviction recorded by the High Court arid the sentence awarded to the appellant under section 304 (11), P. P. C. thus not open to any exception.

The appeal is accordingly dismissed.

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