2013 PLP 383 (SCMR)

ASIF SAEED KHAN KHOSA, J.

Azhar Iqbal appellant was tried in case F.I.R. No. 289 registered at Police Station Saddar Kharian, District Gujrat on 30-5-2005 in respect of an offence under section 302, P.P.C. read with section 34, P.P.C. and vide judgment dated 8-5-2006 delivered by the learned Additional Sessions Judge, Kharian he was convicted on two counts of an offence under section 302(b), P.P.C. and was sentenced to rigorous imprisonment for life on each count and to pay a sum of Rs.50,000 to the heirs of each deceased by way of compensation under section 544-A, Cr.P.C. or in default of payment thereof to undergo simple imprisonment for six months on each count. The sentences of imprisonment passed against him were ordered to run concurrently. The appellant challenged his convictions and sentences before the Lahore High Court, Lahore through Criminal Appeal No.828 of 2006 which was heard and dismissed by the then Hon'ble Chief Justice of the said Court vide judgment dated 16-12-2009. Hence, the present appeal by leave of this Court granted on 28-5-2012.

2. After hearing the learned counsel for the appellant and the learned Additional Prosecutor-General, Punjab appearing for the State and having gone through the record of the case with their assistance it has straightaway been observed by us that both the learned courts below had rejected the version of the prosecution in its entirety and had then proceeded to convict and sentence the appellant on the sole basis of his statement recorded under section 342, Cr.P.C. wherein he had advanced a plea of grave and sudden provocation. It had not been appreciated by the learned courts below that the law is quite settled by now that if the prosecution fails to prove its case against an accused person then the accused person is to be acquitted even if he had taken a plea and had thereby admitted killing the deceased. A reference in this respect may be made to the case of Waqar Ahmed v. Shaukat Ali and others (2006 SCMR 1139). The law is equally settled that the statement of an accused person recorded under section 342, Cr.P.C. is to be accepted or rejected in its entirety and where the prosecution's evidence is found to be reliable and the exculpatory part of the accused person's statement is established to be false and is to be excluded from consideration then the inculpatory part of the accused person's statement may be read in support of the evidence of the prosecution. This legal position stands amply demonstrated in the cases of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520), Muhammad Tashfeen and others v. The State and others (2006 SCMR 577) and Faqir Muhammad and another v. The State (PLD 2011 SC 796). It is unfortunate that the Lahore High Court, Lahore had failed to apply the said settled law to the facts of the case in hand.

3. For what has been discussed above a conclusion is unavoidable and irresistible that the prosecution had failed to prove its case against the appellant beyond reasonable doubt. This appeal is, therefore, allowed, the convictions and sentences of the appellant recorded and upheld by the learned courts below are set aside and the appellant is acquitted of the charge. He shall be released from the jail forthwith if not required to be detained in connection with any other case. Criminal Miscellaneous Application No. 384-L of 2012 As the main appeal has been allowed and disposed of by this Court today, therefore, this miscellaneous application seeking interim relief has lost its relevance and the same is, therefore, disposed of as having become infructuous. MWA/A-34/SC Appeal allowed.