2001 PLP 2826 (YLR)

9. Mr. Muhammad Riaz Abbasi, counsel for the complainant argued that there was strong circumstantial evidence in the case, the recoveries were made from the appellant in presence of Mashir who had no motive to falsely implicate the appellant. Besides the judicial confession was voluntarily made. He further argued that the delay in lodging the F.I.R. depicted bona fide and natural human conduct. Mr. Habib Ahmed learned A.A.G. appearing for the State while supporting the submission of the complainant's counsel, supported the impugned judgment and contended that the appellant's judicial confession alone can be formed the basis of his conviction.

10. No other point was raised or argued by the learned counsel representating the parties.

11. We have gone through the evidence and minutely assessed the judicial confession of the appellant. The, appellant was produced first on 28-6-1999 before the P.W. Judicial Magistrate for recording of confession, who by his order had postponed the same to 1-7-1999.

12. The judicial confession, however, discloses the following facts:

"The deceased having remained alone in the house sat to work and examine old household articles. I joined her. The driver returned who also joined with us in our work. After some time Begum Sahiba informed me that she was not feeling well saying so she went inside her room. Finding her sleeping, it came to my mind to commit theft, while I was taking away the stolen property, I got struck with wail so Begum Shaiba got up and started crying. She came before me so I holding her by her neck threw her on the bed and closed the door of the room and went to servant quarter. Taking my luggage and the stolen property I went away. I was arrested at 6-00 a.m. on the next morning. I was beaten by police and asked that I had escaped after committing murder. On the way I informed the police that I did commit theft but I am surprised to hear about Qatl. I informed the Police that I am prepared to return the stolen property. Police thereafter returned from there and after getting back the property police brought me to the Bungalow. There also I was beaten and thrashed and questioned so I had, due to fear, upon their asking said yes. I had informed the police that Begum Sahiba was suffering from heart disease and was about 70 years old. Even thereafter I was beaten at different places and pressed to confess the commission of Qatl. Today also the same thing is being repeated and I am being pressed by police to tell the Magistrate that I had killed Begum Sahiba by pressing her neck. I had only pushed her back to the bed by holding her from her neck. I had seen her alive while leaving, she was raising calls. I had not checked the property. I had an idea that it may be worth thirty or forty thousand. That is all. This is my statement and I am giving it out of any free will and consent. "

13. Judicial confession of an accused person has to be believed or disbelieved in its entirety in absence of any other evidence. This well-settled principle of criminal administration of justice is continuously and rightly being followed. Though there is strong circumstantial evidence in the case relating to the implication of the appellant but there is no other evidence on the actual occurrence leading to the death of deceased. We, therefore, following the relevant case- law would consider the appellant's statement/judicial confession in its entirety. Reference is made to the following cases:

PLD 1958 (W.P.) Lahore 142 (Fazal Hussain v. The State); PLD 1961 (W.P.) Karachi 240 (Baboo v. The State); 1972 PCr.LJ 76 (Karachi) (Arbab v. The State); PLD 1975 Kar. 84 (Pahlwan, etc. v. The State); PLD 1978 Supreme Court 200 (Najib Raza Rehmani v. The State) and PLD 1978 Supreme Court 292 (Subha Sadiq etc. v. Mistry Taj Din etc.).

14. In this case the convict's confession is quite in detail and appears as a clear, confident expression of his mind. It leads to the belief that what is stated by the appellant before the learned Judicial Magistrate is correct. The allegation of maltreatment by the appellant against the police and complainant party also appear to be forming a truthful statement. Such maltreatment in our part of the country is a part of the investigation process of heinous criminal offences like the present but for this fact alone the judicial confession of the appellant which is otherwise supported by strong circumstantial evidence, cannot be discarded and thrown out of consideration. We, therefore, believe the judicial confession to be true and voluntarily made by the appellant.

15. Besides the judicial confession there is circumstantial evidence produced by the prosecution which consists of the complainant and his son Asim. They have deposed that the appellant was serving in their house is a cook. This fact has been admitted by the appellant in his 342, Cr.P.C. statement. The. appellant's disappearance from the house with all his luggage, deposed to by the complainant, has also not been controverted. The recovery of the property from the appellant in presence of Mashir Nadeem Sattar Exh. 22 and Ahmed Jahanzeb is another strong circumstantial piece of evidence against the appellant. The Mashirs are not shown to be either interested in the complainant or hostile to the appellant. Their evidence has remained unshattered. P.W. Fahim Exh. 21 supports the version of the F.I.R.

16. The prosecution evidence examined in the light of the judicial confession needs now the determination of the offences committed by the appellant. The F.I.R. was drawn initially under sections 302 and 380, P.P.C. While the appellant has been convicted under sections 302 (b)/392, P.P.C. read with section 7 (ii) of the Anti-Terrorism Act. Sections 380 and 392 may, therefore, be reproduced below:-- "

380. Theft in dwelling house, etc.-- Whoever commits theft in any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or used for the custody of property, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine." "

392. Punishment for robbery.

Whoever commits robbery shall be punished with rigorous imprisonment for a term which (shall not be less than three years nor more than) ten years, and shall also be liable to fine; and, if the robbery be committed on the Highway 3(***) the imprisonment may be extended to fourteen years." It will be pertinent to reproduce section 390, P.P.C. also, which defines robbery and draws a line of distinction between an offence of theft and an offence of robbery. Same is as under:

"

390. Robbery.

In all robbery there is either theft or extortion. When theft is robbery.

Theft is robbery' if in order to the committing of the theft, or in committing the theft, or in carrying away or attempting to carrying away property obtained by the theft the offender for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery

Explanation.

The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt or of instant wrongful restraint." Upon scrutiny of the above sections the alleged offence must fall under section 392, P.P.C. and not under section 380, P.P.C. Section 392 would be attracted if the offender voluntarily causes or attempts to cause to any person, death or hurt or wrongful restraint or fear of instant death or of instant hurt or of instant wrongful restraint.

17. Admittedly there is no direct evidence in the case, the best evidence available on record is the judicial confession of the appellant coupled with strong circumstantial evidence. From the facts and circumstances disclosed therein, we are not convinced that the appellant can be burdened with the responsibility of killing the deceased and committing the offence of Qatl-e-Amd. But the evidence on record does establish an offence of section 316, P.P.C., which in our view stands proved. We would, therefore, dismiss the appeal of the appellant-convict and sentence him under section 316, P.P.C. to 14 years' R.I. and Diyat to be determined in accordance with provisions contained in section 323, P.P.C. The sentence under section 392, P.P.C. is maintained. Award of compensation of Rs. two lacs under section 544-A, Cr.P.C. to the legal representatives of the deceased is also set aside. The benefit of section 382, Cr.P.C. allowed to the appellant shall remain intact. The sentences passed against the appellant to run concurrently.

18. In view of the above, the reference for confirmation of death sentence is answered in negative. N.H.Q./N-72/K Order accordingly.