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Criminal Appeal No. K‑4 of 1979 in Criminal Petition for Special Leave to Appeal No. K‑42 of 1979, decided on 21st August, 1979.

‑‑‑S. 497‑‑Penal Code (XLV of 1860), S. 302‑‑Petitioner repudiating intention of killing and pleading right of self‑defence in his judicial confession‑‑Recovery of crime weapon, held, of little corroborative value in circumstances‑‑Bail allowed.

Najib Raza Rehmani v. The State P L D 1978 S C 200 rel.

M. Hayat Junejo, Senior Advocate and Noor Ahmad Noori, Advocate‑on‑Record for Petitioner.

M.I. Memon, Additional Advocate‑General with S.M. Abbas, Advocate‑on‑Record for the State.

Date of hearing: 21st August, 1979:

‑The petitioner is being tried in the Sessions Court, Larkana, for murder and pending his trial, he applied for bail in the Sessions Court. As his application was dismissed, he applied for bail in the Sino High Court, but as a learned Judge of the High Court dismissed his application for bail, by his order, dated 23‑7‑1979, the petitioner has filed this petition for leave, on which we had ordered notice to the State.

The only evidence against the petitioner, according to the impugned order, was the petitioner's judicial confession which, according to the learned Judge, was corroborated by the recovery of a blood‑stained Lathi from him. We have, therefore, examined what the learned Judge described as the petitioner's judicial confession with the assistance of the learned Advocate‑General. The petitioner said in his statement:

"I am a peon in the Information Office. On account of the theft of newspapers of the Information Office we had a quarrel with deceased Abdul Sattar who was a Chowkidar of that Office. He tried to involve me and I told him not to make unfounded allegations against me. On this he filthily abused me and started fighting. He gave me kicks with his hands. I tried to save myself but ultimately on his abusing me I gave him blows with a Lathi lying nearby. He fell down and I went away. I had no intention of killing him. He has died accidentally on account of blows which I have struck in my self‑defence. He had also previously accused me of being a bad character but I told him not to make false allegations with a view to have me dismissed from service."

Mr. Junejo submitted on the basis of this Court's judgment in Najib Raza Rehmani v. The State P L D 1978 S C 200 that this statement by the petitioner was not a confession because the petitioner had expressly repudiated any intention of killing the deceased and had on the contrary pleaded the right of self‑defence.

Our judgment in Najib Raza Rehmani's case prima facie, supports Mr. Junejo's submission, therefore, the recovery of the blood‑stained Lathi is of very little corroborative value, because the question in the case is not whether the petitioner had killed the deceased. There is no doubt that he did. But the question is whether the petitioner hit the deceased with the intention of killing him or whether he had hit the deceased in the exercise of his right of self‑defence. And, on that A question the recovery does not throw any light, therefore, the learned Advocate‑General very rightly conceded that it was a fit case for bail. Accordingly, we convert the petition into an appeal, set aside the impugned order and allow bail. Bail in the sum of Rs.20,000 with one surety of the like amount to the satisfaction of the Sessions Court, Larkana.

M. I. Bail allowed.

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