P L D 1961 (W (PLP)

4. Allah Dad went to Police Station Musa Khel, which is at a distance of 23 miles from the scene of occurrence, and lodged the first information report Exh. P. KK on the 29th of August 1959, at 1 a.m. A. S. I. Abdul Aziz (P. W. 17) happened to be in village Shadia in connection with the investigation of the theft case. On hearing about the occurrence, he went to the khola and saw the dead bodies of Sultan, Sarfraz and Muhammad Nawaz. He posted a Head Constable and a constable to guard the dead bodies during the night. Rustam P. W. too came to the khola on learning that the police had arrived. He made the statement Exh. P. A. which was correctly recorded by A. S. I. Abdul Aziz. The A. S. I. then sent Exh. P. A. to the police station for the formal registration of a case.

5. Doctor Muhammad Zakria, who conducted the post mortem examination on the bodies of the three persons killed, observed the injuries noted under the name of each (1) Sarfraz deceased (1) An almost circular wound with lacerated edges, " x ", on the scapula, 5" from the spine and 7" from shoulder line. The edges were inverted. The sides near the edges were blackish, the scapula fractured. (2) An abraised area, 1 " x " , on the left upper part of the forehead. Death, in the opinion of the doctor, was due to an injury to the heart which had been caused with a firearm. (2) Sultan deceased (1) An almost circular wound with lacerated and blackish edges almost on the left front and 1" from the middle line and 10" from the clavicle. The edges were inverted. (2) A cut wound, horizontal, 1 " x " gapping x bone deep, on the lower part of occiput. Death, in the opinion of the doctor, was due to injury to the heart which had been caused with a firearm. (3) Muhammad Azam deceased There were nine circular lacerated wounds edges inverted, on the right scapular in an area of 4" x ", in the middle. Death, in the opinion of the doctor, was due to shock and haemorrhage, resulting from an injury to the lung which had been caused with a firearm.

6. On the same day the same doctor examined the following appellants and observed the injuries noted against their names :‑ (1) Allah Dad appellant (1) Two abraded areas, 1" x 1/8", and 2/3" x ", 1 " apart on the right scapula upper part of the scapular prominence. (2) A contusion mark, 2" x 2", on the left flank, 2" above the ill ac crest, oblique. The injuries, which had been caused with a blunt weapon, were simple in nature. (2) Ghulam Muhammad appellant (1) Four small lacerated wounds, 1/8" x 1/8" of diameter some of which were still fresh situated on the frontal and mid‑pariatals. (2) A swelling of the right forearm, 2" above the wrist joint. Ulna was fractured. According to the doctor, injury No. 1 had been caused with a firearm, while injury No. 2 had been caused with a blunt weapon.

7. According to Allah Dad and Ghulam Muhammad appel lants, the complainants' party were the aggressors while the appellants had acted in self‑defence.

8. The prosecution examined Rustam (P. W. 14), Bahadur (P. W. 15) and. Alam Khan (P. W 16), the alleged eyewitnesses of the occurrence, in support of its case. The learned Sessions Judge did not rely on their evidence as he was not certain about their presence at the spot at the material time. After discussing the evidence of these witnesses, the learned Sessions Judge concluded:‑ "In the result, I have no hesitation in saying that the claim of all these three witnesses, namely, Rustam (P. W.14), Bahadur (P. W. 15) and Alam Khan (P. W. 16) as the eyewitnesses of this occurrence is highly doubtful and that as such their testimony cannot be made the basis of conviction." After disbelieving the evidence of the prosecution witnesses, the learned Sessions Judge held that Ghulam Muhammad and Allah Dad appellants had taken part in the occurrence and that they were the aggressors. We have not at all been able to understand the reasons given by the learned Sessions Judge for arriving at the conclusion that the appellants, were the aggressors. He has dis cussed this point in paragraphs 21 and 22 of his judgment and has by mere conjectures arrived at the conclusion that Ghulam Muhammad and Allah Dad were the aggressors. The participa tion of Ghulam Muhammad and Allah Dad appellants in the occurrence cannot be denied. Allah Dad and Ghulam Muhammad admitted their presence but pleaded self‑defence. It is an elemen tary principle of criminal law that a confession or an admission of an accused has to be read as a whole. See Rahim Bakhsh v The Crown (P L D 1952 F C 1). Where there is positive evidence to show that any portion of the exculpatory statement of the accused is false, the Court cannot accept the inculpatory element and reject the excul patory element. See Muzaffar Khan v. The State (P L D 1956 Lah, 1045). A Court can reject the exculpatory portion of an admission or confession of an accused person only when there is reliable evidence, direct or circumstantial, showing that the exculpatory portion is false. There is no such evidence on the record of this case.

9. In a criminal case, the burden of proof is always on the prosecution and it is only when a good prima facie case has been made out against the accused sufficient to justify his conviction of that offence, that the burden shifts on, the accused to prove that he is not guilty of any such offence. In Nannhun v. Emperor (165 I C 458) the facts of the case were that the accused lodged a first infor mation report to the effect that a dacoity had taken place in his house and that all the dacoits bad run away but one of them was caught and killed by him in the scuffle. The police registered a case under section 302, Penal Code against the informant (accused) himself. After investigation, the accused was committed to the Court of Session on a charge under section 302, Penal Code. It was urged by the prosecution that as the accused admitted having attacked the deceased, his act amounted to wilful murder unless he could prove the circumstances which would go to show that it was not a culpable homicide amounting to murder. Nanabutty and Zia‑ul‑Hassan, JJ. held that the learned Sessions Judge has misapplied section 105 of the Evidence Act and acquitted the appellants. The elementary principle of criminal law that in all, cases the burden of proof lies upon the prosecution to bring them guilt home to the accused does not admit of any exception, it is not right for a criminal Court to convict an accused person because the defence theory appears to it to be unreasonable or does not appear to it to have been established.

10. Before concluding we would like to say a few words regarding the admissibility of the first information report Exh. P. KK. As already stated, this F.

1. R. was made by Allah Dad appellant. The report is exculpatory as far as Allah Dad is concerned. It could not have been used against Ghulam Muhammad appellant. A first information report which amounts) to a confession is not admissible, being a confession made to a police officer, but an F. I. R. not amounting to a confession can be admitted in evidence. At the same time, a report of the latter kind cannot, since the maker is an accused person and not a witness, be treated in evidence against any co‑accused. In the present case, the report being exculpatory so far as Allah Dad is concerned is admissible in evidence but cannot be considered as piece of evidence against Ghulam Muhammad appellant. See Muhammada and others v. Emperor (A I R 1948 Lah. 19).

11. Allah Dad appellant filed a written statement Exh. D. C. wherein he stated that he himself and Ghulam Muhammad were empty‑handed at the material time. Ghulam Muhammad appel lant merely stated that his plea was the same as Allah Dad had taken, meaning thereby that he also pleaded self‑defence. The learned Sessions Judge has erroneously used Allah Dad's statement Exh. D. C. against Ghulam Muhammad. A statement of an accused person made under section 342, Cr. P. C. may be used for or against him but it cannot be used against any person other than the one who made it. See Tahsin‑ud‑Din v. Emperor (A I R 1940 Cal. 250) and Mt. Smitra v. Emperor (A I R 1940 Nag. 287)

12. For the reasons given above, we accept the appeal, set aside the convictions and sentences of the appellants, and acquit them. They shall be released forthwith if not required to be detain ed in connection with any other case. Appeal accepted.