2021 PLP 729 (MLD)

ABDUL HAMEED BALOCH, J.

This criminal appeal has been directed against the .judgment dated 07th September, 2019 (impugned judgment), passed by learned Sessions Judge/ Model Criminal Trial Court, Killa Abdullah at Chaman (trial court), whereby the appellant was convicted under Section 302(b) Pakistan Penal Code and sentenced to death and liable to pay an amount of Rs.300,000/- (Rupees three hundred thousand) as compensation to the legal heirs of deceased and in default thereof to further suffer six months simple imprisonment under Section 544-A Criminal Procedure Code (Cr.P.C).

2. Succinct facts of the case are that on 27th September, 2017, FIR No. 125 of 2017, was lodged with Levies Station Chaman, under Sections 302, 34, P.P.C., on the written report (Ex: P/1-A) of complainant Haji Syed Ali (PW-1), alleging therein that on the said date at about 12: 30 p.m., his son Azizullah was sitting in a shop adjacent to his house, where accused Zaqoom and Abdul Ali came on CD-70 motorcycle and called his son. As soon as he went there the accused persons who were armed with dagger and knife attacked upon him. It was further alleged that accused Zaqoom attacked on head and neck of his son while accused Abdul Ali caused knife injuries on his neck and stomach due to which his son succumbed to the injuries at the spot.

3. After registration of FIR the investigation of the case was entrusted to PW-8 Abdul Jabbar Rasaldar Levies, who along with levies employees and complainant went to the place of occurrence, prepared site map Ex: P/8-B on 28th September, 2017, prepared memo Ex: P/4-A of blood stained chaddar of accused, sealed into parcel, recorded statements of prosecution witnesses. After registration of FIR Ex: P/8-A the nominated accused Zaqoom was arrested on the same day. During investigation on 10th October, 2017 the accused voluntarily got recorded his confessional statement (Ex: P/7-A) under Section 164, Cr.P.C. before Judicial Magistrate-III, Pishin. Thereafter, the Investigating Officer submitted challan No. 103/2017 (Ex: P/8-C) add the appellant was sent up to face trial.

4. The trial court took cognizance of the case. Co-accused Abdul Ali was declared absconder. Whereafter, charge was framed to which the appellant pleaded not guilty and claimed trial. At the trial the prosecution in order to substantiate the charge produced as many as eight (08) witnesses. PW-1 Haji Syed Ali is complainant of the case, who exhibited Fard-e-Biyan as Ex: P/1-A. PW-2 Noor Ali, PW-3 Asmatullah, PW-4 Janan and PW-5 Hayatullah are ocular witnesses. While PW-4 produced memo of blood stained chaddar of deceased as Ex: P/4-A. PW-6 Dr. Asmatullah Medico Legal Officer examined the deceased on 27th September, 2017 at District Headquarter Hospital Pishin and produced death certificate as Ex: P/6-A. PW-7 Faisal Hameed Judicial Magistrate-III, Pishin recorded confessional statement of accused (Ex: P/7-A) under Section 164, Cr.P.C. on 10th October, 2017. In the last the prosecution examined Abdul Jaffar Rasaldar Levies/Investigating Officer and thereafter closed its side.

5. After close of prosecution side the appellant was examined under Section 342, Cr.P.C, wherein he denied the allegation of prosecution. The appellant neither recorded his statement on oath as envisaged under Section 340(2), Cr.P.C, nor produced any witness in his defence.

6. At the conclusion of the trial the learned trial court heard arguments and thereafter, convicted the appellant in the terms as mentioned in para-1 supra vide impugned judgment, hence this appeal.

7. Suffice to add here that since the appellant was awarded death sentence, as such the State filed Murder Reference for confirmation of death sentence awarded to the convict Zaqoom.

8. The learned counsel for the appellant/convict while arguing the case contended that the confessional statement of the appellant was neither true nor voluntary. The same has been recorded with coercion. Further, the confessional statement of the appellant/convict was recorded with the delay of thirteen (13) days and no examination has been put forth for such delay. Since the appellant/convict has retracted from his confessional statement therefore, the same has no value in the eyes of law and the appellant could not be convicted on the basis of retracted confession. There is no incriminating material available on the record to connect the appellant with the crime. Nothing has been recovered from the possession of appellant/ convict. The statements of the witnesses under Section 161, Cr.P.C. were recoded on next day occurrence. The motive set up by the prosecution is improbable and remained shrouded in mystery. Despite that the occurrence had taken place in the populated area, where so many persons were present and shops were opened, but the prosecution has not recorded statement of any independent witness. All the prosecution witnesses are inter related with the deceased and complainant. The learned counsel further stated that the appellant has also sustained injuries, but the same were suppressed by the prosecution witnesses. The appellant made out a case for his acquittal. The learned counsel contended that in the circumstances of the case the punishment under Section 302(b), P.P.C. could not be awarded rather punishment under Section 302(c), P.P.C. can be awarded.

9. Mr. Muhammad Ayub Achakzai, Advocate appearing on behalf of the complainant argued that the trial court has rightly convicted the appellant. The presence of eye witnesses was established. The evidence on the record connects the appellant with the commission of offence. The appellant/ convict voluntarily got recorded his confessional statement before Judicial Magistrate. PW-7 narrated the entire facts. Since the appellant has given full account of incident. The ocular account has narrated the detail of occurrence. The occurrence was taken place in broad day light, thus the fabrication could be ruled out. The learned counsel for the complainant relied on: Muslim Shah v. The State PLD 2005 SC 168; Nabi Bakhsh v. The State 1999 SCMR 1972 and Syed Alam v. The State 2020 YLR GB 340.

10. The learned Additional Prosecutor General supported the contention of learned counsel for the complainant. Further stated that the evidence available on the record is sufficient for conviction of the appellant and no illegality or irregularity has been pointed out in the impugned judgment. The statements of ocular witnesses, medical evidence and confessional statement of appellant fully connected him with the commission of alleged offence and prayed for maintaining the conviction and sentence awarded by the trial court.

11. We have given considered thought to the arguments of learned counsel for the parties and perused the record with their assistance. In order to prove accusation the prosecution on the statements of ocular account furnished by PW-2 (Noor Ali), PW-3 (Asmatullah), PW-4 (Janan), PW-5 (Hayatullah), medical evidence of PW-6 Dr. Asmatullah and confessional statement of appellant/ convict recorded by PW-7 Faisal Hameed Judicial Magistrate-III, Pishin. The record depicts that the matter was reported on the same day at 1:50 p.m. (day) within one hour and twenty minutes of the occurrence. PW-6 Dr. Asmatullah immediately examined the deceased after the occurrence before registration of FIR. The occurrence had taken place in broad daylight. The parties were well known to each other before the occurrence. There was no chance for false implication. These circumstances are enough to believe that the FIR was registered without pre-concert, premeditation to Levies Station. Reliance is placed on the case of honorable august Court titled as Imtiaz alias Taji v. The State 2020 SCMR 287.

12. It appears from the perusal of record that the presence of witnesses had not been denied by the appellant. The presence of ocular witnesses at the scene of occurrence on relevant time has been established. The eye witnesses were natural witnesses. There was no chance for fabrication or substitution. The ocular witnesses have gone the test of lengthy cross-examination but their credibility and presence at the spot could not be shattered by the defence except their relationship with the deceased and complainant. There is no prohibition in the law that statement of related witnesses cannot be considered. The witnesses were natural. Their presence is justified at the relevant time at the place of occurrence. The ocular witnesses were natural witnesses and are as good as any other independent witnesses. The defence has failed to prove any mala fide or ill will regarding false involvement of the appellant. The statements of eye witnesses were in complete unison with detail of the salient aspect of the occurrence. The circumstances do not admit any hypothesis other than appellant's guilt. In this regard reliance is placed on the case of Mazhar Ellahi v. The State, 2020 SCMR 586.

13. The learned counsel for the appellant contended that the prosecution has failed to justify non-association of independent witnesses and the prosecution has also failed to record the statement of shopkeeper where the altercation took place. All the witnesses are near related. The contention has no force. There is no prohibition in law that near related person does not to be competent witnesses. Mere relationship is no ground to discard/ disbelieve the statement of natural witnesses. The prosecution has fully established the presence of ocular witnesses on the scene of occurrence. Even defence has admitted the presence of eye witnesses at the relevant time on the place of occurrence. Mere relationship with deceased is not enough to disbelieve the testimony of related witnesses. An interested witness is a person who by motive to falsely implicate a person. The defence has failed to point out and ill will, grudge or motive on the part of the witnesses to falsely implicate the appellant. Reliance is placed on the case of Sharafat Ali v. The State, 1999 SCMR

329. It was held: "8.

The appellant himself admitted presence of the first informant and his wife, sister of the deceased at the spot soon after the occurrence. This circumstance goes a long way to falsify the defence version.

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14. Certainly no plausible reason has been established by the defence to indicate why the complainant and eye witnesses would substitute the appellant. Reliance is placed on the reported case of Peshawar High Court titled as Rehmat Zeb v. The State, 2013 PCr.LJ 864 wherein it was held: "Certainly no plausible reason has been established by the defence to indicate why the complainant and eye-witness would substitute the appellant by leaving real culprits. The testimony of eye-witnesses is natural and convincing one and their statements find ample corroboration from other evidence, hence, in our view, they were rightly believed by the trial Court."

15. So far as the contention of learned counsel for the appellant with regard to delay in recording of confessional statement under section 164 Cr.P.C., by PW-7 is concerned, the same has no force. The defence has failed to prove that the confessional statement was recorded by duress. It appears from the record that the appellant/ convict had made confessional statement voluntarily and had given motive to commit the offence. The appellant/ convict furnished the graphic detail of occurrence in the confessional statement. It would be appropriate to examine the intrinsic value of confessional statement. The same cannot be rejected merely on the ground that it was recorded with delay. It is well settled that retracted confession would be sufficient piece of evidence for conviction if it found voluntarily and not obtained by coercion or' inducement. The judicial confession of appellant/convict aspires confidence and supported by the statements of prosecution witnesses and corroborated by medical evidence. Reliance is placed on the case of Muhammad Ismail v. The State, 1995 SCMR 1615. It was held by the Honorable Supreme Court: "

18. Then comes the confession of appellant Muhammad Ismail. Delay for recording confession per se is no ground to discard it unless it is proved or emerges from the circumstances that it was obtained by coercion, threat, pressure etc. Indeed, the learned Magistrate after observing formalities recorded his confession and certified that it was true and voluntarily. In his confession the appellant has advanced different motive for committing murders. But undisputedly he has admitted that he along with Ghous Muhammad had committed the triple murders. The details given by the appellant in confession establishes that it is not only true but voluntary one also. The learned trial Court thus has Tightly treated as evidence against the appellants.

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16. The record transpires that the appellant/ convict had made confession of his crime before PW-7, which appears to be voluntarily. From the perusal of confessional statement of appellant/ convict it appears that the fight took place all of sudden without premeditation. It would be appropriate to reproduce the relevant part of confessional statement of appellant/convict: Though the appellant/ convict had not taken plea of self defence. The perusal of referred part of confessional statement of appellant/convict and statement of Investigating Officer (PW-8) depicts that the deceased and the appellant had inflicted Churri blows to each other due to which the appellant had also sustained injuries. The prosecution record is silent with regard to background of previous enmity between the deceased and appellant. It is well settled proposition of law that the confession is either to be accepted in toto or rejected as a whole. The law cannot permit to pick and choose inculpatery part of statement and reject the other exculpatory part. It appears from the record that the appellant acted in his defence but exceeded his right of self defence. Reliance is placed on the case of Allah Nawaz's v. The State, 2009 SCMR 736, wherein it was held by their lordship: "

. The Judicial Magistrate appeared and testified that it was recorded after fulfilling all the formalities. The mere suggestion of the defence that it was involuntary is not enough to throw it away. The contention of the learned counsel for the appellant that the appellant was handed over to the police after the confession is also not correct. We have seen the judicial order available on the record which shows that the appellant was remanded to the judicial custody. There is nothing on record to disbelieve the confession. According to his confession, the appellant claimed that Muhammad Amir deceased, assaulted him with a Lathi on which he fired Muhammad Amir while Shahzad also struck him from the back on which he fired two shots at Shahzad. Now it is settled law that confession is to be rejected or accepted as a whole. We noticed that while Shahzad was unarmed, Muhammad Amir, deceased, was statedly carrying Lathi, as against that, the appellant/accused was equipped with fire-arm and inflicted injuries to both the deceased at the vital part of the body i.e. the chest. In the circumstances we are of the view that the appellant exceeded his right pf self-defence." The honorable august Court affirmed the view of supra in case Fayyaz Ahmed v. Muhammad Khan, 2020 SCMR 281: "

4. The facts and circumstances of the case clearly demonstrate that the encounter between the parties was a chance and sudden encounter and there was no premeditation involved in this case. In this sudden occurrence only one blow was given by Rozi Khan appellant to Safdar Ali deceased and despite an opportunity being available that regard he had not repeated that blow. In the hear of passion at the spot no undue advantage had been take by the appellants and they had not acted in any manner which could be termed as cruel or unusual. For all these reasons we have concluded that the actions attributed to the appellants attracted the provisions of section 302(c), P.P.C. With this conclusion we hold that the trial court was quite justified in convicting and sentencing Fayyaz Ahmed appellant for an offence under section 302(c), P.P.C. and the conviction and sentence of Rozi Khan appellant for an offence under section 302(i), P.P.C. were unjustified" Reliance is also placed on the case of Azmatullah v. The State, 2014 SCMR 1178: "

4. The case of the prosecution is that at the relevant date and time the appellant and his brother namely Imran suddenly developed a quarrel and on the basis thereof the appellant was enraged and he caused injuries to the said brother with a chhurri which injuries led to his death. The FIR in this case had been lodged by none other than the father of the appellant. In his statement recorded under section 342, Cr.P.C. the appellant had maintained that he had caused an injury to his brother namely Imran deceased in exercise of right of private defence but he had failed to lead any independent evidence to substantiate and establish the said plea taken by him. Leave to appeal had been granted in this case to consider as to whether the circumstances of this case attract the provisions of section 302(b), P.P.C or of section 302(c), P.P.C. A bare perusal of the F.I.R., the statements made by the eye-witnesses before the learned trial Court and the findings recorded by the learned courts below clearly shows that there was no background of any bitterness between the appellant and his deceased brother and that the incident in issue had erupted all of a sudden without any premeditation whatsoever. The medical evidence shows that the deceased had received one blow of a chhurri on his chest whereas another blow was received by him on the outer aspect of his left upper arm. The doctor conducting the post-mortem of the dead body had categorically observed that both the injuries found on the dead body of the deceased could be a result of one blow of chhurri. These factors of the case squarely attract Exception 4 contained in the erstwhile provisions of section 300, P.P.C. It has already been held by this Court in the case of Ali Muhammad v. Ali Muhammad and another (PLD 1996 SC 274) that the cases falling in the exceptions contained in the erstwhile provisions of section 300, P.P.C. now, attract the provisions of section 302(c), P.P.C. The case in hand was surely a case of lack of premeditation, the incident was one of a sudden fight which was result of heat of passion developed upon a sudden quarrel and no undue advantage had been taken by the appellant nor had he acted in a brutal or unusual manner. In these circumstances Exception 4 contained in the erstwhile section 300, P.P.C. squarely stood attracted to the case in hand and, thus, the case against the appellant fell within the purview of the provisions of section 302(c) P.P.C." In view of above, Criminal Appeal No. 323 of 2019 is partly allowed. The conviction of appellant under Section 302(b), P.P.C. is altered into Section 302(c), P.P.C. and appellant is sentenced to rigorous imprisonment for fourteen (14) years and to pay Rs.100,000/- (Rupees one hundred thousand) to the legal heirs of deceased as compensation as envisaged under section 544-A, Cr.P.C. and in default thereof to further undergo simple imprisonment for six (06) months. Benefit of section 382-B, Cr.P.C. is extended to the appellant. Resultantly the Murder Reference filed by the State for confirmation of death sentence is answered in negative. SA/159/Bal. Sentence reduced.