1979 P Cr (PLP)

Appellant examined five witnesses in his defence. D. W. 1 Mst. Kanizan Mai deposed about the incident responsible to provoke the appel lant to cause this murder. D. W. 2 Rana Sajjad Hussain Sub -Engineer Irrigation Department stated that he went to the spot where Sultan Bakhsh deceased was killed. Appellant Allah Wasaya narrated to him the story alluded to by his wife Mst. Kanizan Mai. He also deposed that about 8/10 days after the occurrence all the villagers collected in a mosque. Rahim Bakhsh, Muhammad Nawaz, Muhammad Shafi and Bakhurdar P. Ws. were also present in the panchayat. The panchayat found that all the accused were innocent. Both the cases were thus compromised. A pronote was executed as a measure of safe guard in implementing the decision. D. W. 3 Muhammad Ishaq lambardar supported D. W. 1 Mst. Kanizan Mai and D. W. 2 Rana Sajjad Hussain in all necessary particulars, Muhammad Hussain D. W. 4 stated that on 20-7-1977 a pronote was executed by Rahim Bakhsh in favour of Ghulam Rasul for fifty thousand rupees: The pronote was exhibited as D. W. 4/A. It bears the signatures of Rahim Bakhsh. He stated that another pronote Ex. D. W. 4/B was also execu ted by Ghulam Sarwar in favour of Rahim Bakhsh for the same amount. D. W. 5 is the scribe of the pronotes. He declared that the pronotes bear the thumb impressions of Ghulam Sarwar and Rahim Bakhsh.

8. Prosecution at the trial relied on the ocular evidence given by Muhammad Nawaz P. W. 10, Muhammad Shafi P. W. 11, Rahim Bakhsh P. W. 12 ; incriminating recoveries ; the motive and finally the medical evidence.

9. Learned trial Judge accepted the motive set up by the prosecution. As to the ocular evidence, he found :- "In these circumstances I am fully agreed with the defence counsel that the statements of such witnesses should be considered care fully and cautiously." He after giving fairly detailed reasons that the F. I. R. in the case was prepared after preliminary investigation found:-- ....it goes without saying that the F. I. R. in the present case is of no value." He then concluded :- "The above discussion about the statements of the eye-witnesses makes it fairly clear that their statements cannot be believed safely to award the capital punishment," As regards medical evidence, he has taken the view :- "The medical evidence corroborates the ocular evidence to the extent that the deceased was injured by the chhuri and there was only one person who inflicted this injury and medical evidence does not give any support to involve the other person in this case besides the person who inflicted the injury." Dealing with the incriminating recoveries he proceeded to hold :- "The simple perusal of the statement of this witness shows that the testimony of such witness cannot be relied upon safely. He is admittedly a liar. He is also related to deceased. Much weight cannot be attached to the statements of the recovery witnesses." Rejecting the entire prosecution case, he went on to consider the plea of provocation set up by the present appellant :-- "D. W. 1 is the wife of Allah Wasaya accused. Certainly she is an interested witness. Secondly the sound and strong circum stances negate the defence story. This is an admitted fact that occurrence took place at noon time. This is also the case of both the parties that both the parties were daggers drawn, due to the previous murder of Haq Nawaz the father of accused Allah Wasaya by Sultan deceased and his brothers. So under these circumstances no body will believe that there was any transaction of ghee worth Rs. 5 between Mst. Kanizan wife of the accused Allah Wasaya and Mst. Begum the wife of the brother of Sultan deceased. Mst. Kanizan had admitted that she knew that wife of Sultan was not in the house. Due to these circumstances no person on this earth will believe that Mst. Kanizan the wife of Allah Wasaya had gone to the house of the murderer of the father of her husband, to fetch Rs. 5 from the wife of the brother of deceased. This is also an admitted fact that the place of occurrence is surrounded by the residential houses and at such place and at any time nobody will try to commit rape." He then convicted the appellant merely on his confessional state ment. He rejected the defence plea that the statement of an accused should either be accepted as a whole or rejected as a whole.

10. I have heard the learned counsel for the parties and have gone through the record of the case with their assistance.

11. Learned State counsel has very fairly conceded that he will not be able to support the judgment of the learned trial Judge. Learned trial Judge after rejecting the entire prosecution story could not convict the appellant relying on his own statement alone.

12. Learned trial Judge after rejecting the prosecution case in its entirety proceeded to consider the defence plea and bifurcated the statement of the appellant into parts. He rejected exculpatory part arid accepted the inculpatory part of it.

13. Two main questions may arise for consideration. Firstly if the appellant was to establish his plea like the prosecution beyond reasonable doubt ; or if he was to be given benefit even if the plea set up was reason ably plausible so as to cast doubt on the prosecution case ; and secondly, which is purely a legal question, if the confessional statement of an accused, can be accepted partly to record conviction against him.

14. Taking up t e first point first, Federal Court of Pakistan in Muhammad Siddiq v. Crown (1) has laid down the, rule that where; for instance, there is a plea of accident in a murder case, the two rival cases for the prosecution and the defence should not be dealt with as if they lay in two separate compartments. The duty of a Court in cases of this kind is to review the entire evidence and circumstances at the close before arriving at a conclusion regarding the truth or falsity of the defence plea. All the factors favouring belief in the accusation must be placed in juxtaposition to the corresponding factors favouring the plea in defence, and the total effect should be estimated in relation to two questions, viz. :- (1) Is the explanation of the accused satisfactorily established by the evidence and circumstances appearing in the case ? (2) If the answer to question (P L D 1954 F C 112) be in the negative, is there yet a reasonable possibility that his explanation might be true, so as to cast a reasonable doubt upon the prosecution case. I am not inclined to agree with the learned trial Judge that only because of the previous murder of the father of the appellant or it being a day time, there was no possibility of the appellant's wife's going to the house of the deceased to realise a sum of Rs. 5 price of the ghee from the wife of the brother of the deceased. In rural society people are not prepared to forego even a small sum of money. It might well be that notwithstanding the murder of the father of her husband, appellant's wife was on visiting terms with the women-folk of the deceased's family. For such hypothetical considerations, it would be difficult to hold that the plea set up by the appellant is not reasonably plausible. Courts are always to bear in mind that the accused unlike the prosecution is not to establish his plea beyond reasonable doubt. Statements B of the D. Ws. other than Mst. Kanizan Mai (D. W. 1) at least go to show that the appellant had come out with this plea immediately after the occurrence. Statement of Mst. Kanizan Mai also cannot be rejected because of her being wife of the deceased. Fact cannot be lost sight of that she had risked her own honour while making such a statement. For all this I am constrained to hold that plea set up by the appellant even though not fully established, is reasonably, plausible.

15. Adverting to the second question, it may be observed at the outset that there is a cleavage in the views of the Courts in this regard. In Madan Lal Agar Lal v. The State (P L D 1960 Dacca 813) the view taken is that the con fessions and admissions must either be accepted as a whole or rejected as a whole and that it is not competent for a Court to accept only the inculpatory part while rejecting the exculpatory as inherently incredible. This Court in Khan Muhammad v. State (P L D 1960 Lah. 359) took the view :-- "Where the circumstances of a case compel he Tribunal to reject all the other evidence and act only upon the confession, the con fession must be used literatum et verbatim but when there is other evidence, direct or circumstantial, the Court is at liberty to reject it and act upon the inculpatory part. The Court may accept one part and reject another art." A similar view was taken to Wazir v. State (P L D 1960 Kar. 266). Majority of the Indian Courts in the pre-independence days has also taken a similar view as in the Lahore case (supra). Reference can be made to Ghulam Muhammad v. Emperor (A I R 1942 Lah. 271), Abdul Subhan v. Emperor (A I R 1940 All. 46), In re : Srinivassa Rao (A I R 1928 Mad. 493) and Wafadar Khan v. Q. E. (21 Cal. 955) I am inclined to hold that a confession is evidence against, as well as evidence for the prisoner, and therefore, the whole statement including inculpatory, as well as exculpatory parts must be taken together. The Court is not however, bound to believe or disbelieve the confessional statement as a whole ; it is open to it to believe one part of it and reject the other, where there is other credible evidence in the case. In the instant case therefore the learned trial Judge having rejected the entire prosecution story could not make use of only inculpatory part of the statement of the appellant. 15-A. The appellant's confessional statement if accepted as a whole, no difficulty is felt to holding that he acted under a grave and sudden pro vocation. The case, therefore, is covered by Exception 1 to section 300, P. P. C. 15.B. The result is that I accept this appeal partly. The conviction and sentences awarded to the appellant under section 302, P. P. C. are set aside. He is convicted under section 304, Part I, P. P. C. and sentenced to three years' R. I. and a fine of Rs 2,000 or in default further one year's R. I. Appeal partly accepted.