P L D 1992 Peshawar 147 (PLP)

"In fact I myself had surrendered before Police Post Sukari Gate officials as the relatives of the deceased were intending to kill me and were chasing me. I myself had presented the weapon of offence to the police:'

5. When asked about killing of the deceased, the accused answered as follows:‑‑ "Actually I was waylaid by deceased Farid Khan as he wanted to take revenge of his disgrace because my son Dost Ali was abused by him one day prior to this occurrence and on the morning of the day of occurrence I and my on Dost Ali had disgraced Farid khan deceased by exchange of hot words and also aiming the gun at him as the deceased Farid Khan had done wrong with my son to stop him from aerial firing on the evening/night prior to the day of occurrence. I myself had tried my level best to rescue/escape: from the clutches but he was not in mood to forgive me for this. I begged a lot but this was also all in vain. He tried to kill me and in this scuffling and grappling where the deceased Farid also wanted to snatch my D.B. shotgun my gun went off and as a result of which Farid Khan deceased was hit as he had caught the barrel of the gun, and fell down. I ran away from the‑spot. The relations of the deceased chased me in order to kill, me whereas I took shelter in P.P. Sukari Gate and narrated the story to the police officials. I did not want to hurt him but it was all due to the act of the deceased".

6. In reply to the question as to why the PWs had deposed against him the accused said that they are close relations of the deceased and that no disinterested witness had deposed against him. He professed innocence and neither produced any evidence in defence nor appeared as his own witness under section 340(2), Cr.P.C.

7. The learned Sessions Judge was much impressed by the statement of the accused and without discussing the prosecution evidence in the impugned judgment took up the two pleas one arising out of the suggestion put to the witnesses in the cross‑examination and, other about the self‑defence taken by the accused in his statement under section 342, Cr.P.C. and observed as under:‑‑ "I would like to take both the pleas taken by the accused one by one the burden of proof is lying on the accused as he raised the plea of self‑defence at the first instance that Farid deceased had waylaid him to take revenge of his disgrace and fired at the end in self‑defence the accused fired at the deceased; but no arm has been recovered from Farid deceased suggesting thereby that the deceased was empty handed at the relevant time. It has been held in 1973 PCr.LJ 656 Lahore citation `B' that it is impossible for any individual for the purpose of his defence to measure in golden scales the exact amount of force which he should use in such a situation but since no threat could be exhibited by the deceased to the accused who was duly armed with D.B. shotgun, therefore the plea of self‑defence taken by the accused is devoid of force. So far as the other plea that Farid wanted to snatch the D.B. shotgun and during the scuffle the said shotgun went off as a result of which the deceased was hit is concerned, the medical evidence totally belies this plea of the accused as Doctor Mohammad Bshir Khan (P.W.8) who conducted autopsy on the dead body of the deceased found firearm inlet wounds (5 in number) each 1/4" x 1/4" in size in an area of 5" diameter of the left Umblicus. By putting the defence plea in juxtaposition to the prosecution's case; I am of the firm view that the prosecution plea is more probabic and convincing and the accused failed to establish the plea of self‑defence, therefore, normal penalty of death is awarded to the accused in the facts and circumstances of the case. The accused is accordingly convicted and sentenced to death subject to confirmation by Honourable Peshawar High Court, Peshawar:' 8, Mr. Sanaullah Khan Gandanur Advocate for the convict /appellant, argued that the impugned judgment is violative of the mandatory provisions of section 367, Cr.P.C. providing that the judgment shall contain points for determination, the decision thereon and the reasons for the decision. He argued that the learned Sessions Judge has neither given points for determination nor decision thereon and he simply took into consideration the statement of the accused and has not discussed the prosecution evidence nor reproduced the arguments advanced before him. In. support of his contentions, reliance was placed on a D.B. judgment of‑Balochistan High Court in the case of Issa Khan v. The State reported in PLD 1987 Quetta

174. It was next argued that statement of the accused has to be accepted or rejected as a whole whereas the learned Sessions Judge has not done so. Reliance was placed on the following cases:‑‑ (1) Muhammad Hanif v. The State PLD 1977 Lah. 1253 and ' (2) Faiz and another v. The State 1983 SCMR

76. The learned defence counsel further contended that it is always for the prosecution to prove the case against the accused beyond doubt and the accused is entitled to acquittal if he succeeded in creating reasonable doubt. The Court has to take into consideration the whole of evidence and not merely the plea of the accused. In support of his contention, reliance was placed on Safdar Ali v. The State PLD (1953.FC 93) which was referred and relied in Re: Muhainmad Aslam alias Aslam v. The State (PLD 1953 FC 57) and Juma Khan v. The State (1990 PCr.LJ 56 Karachi).

9. Mr: Ejaz Muhammad Khan, the learned Assistant Advocate‑General for the State, accepted the proposition of law that the judgment must conform to the requirements of section 367, Cr.P.C. and that the impugned judgment suffers from legal infirmities.

10. The cases cited at the Bar and the arguments advanced by the learned defence, counsel have led us to hold the view that the impugned judgment is violative of the provisions of section 367 Cr.P.C. The judgment does not contain the points for determination, nor any decision on the points with reasons; thereon. The evidence produced by the prosecution has not all been discussed. The arguments addressed before the trial Court are not known although it is mentioned in the judgment that arguments were heard. In the case of Eisa Khan v. The State PLD 1987 Quetta 174 his Lordship observed as follows:‑‑ "We have carefully considered the operative portion of impugned judgment and relevant provisions of law. There is no doubt that normally minor omissions and commissions are curable and could be ignored by filling the deficiency by appellate Court. But in the instant case on account of failure to specify points for determination, absence of decision about contentions raised in the matter and total lack of reasons clearly constitute a material defect of impugned judgment which cannot be conveniently overlooked."

11. In the aforesaid case, the trial Court was directed to re‑write the judgment.

12. The learned Sessions Judge was impressed by the statement of the accused forgetting at the same time that the statement of the accused was to be rejected or accepted in toto. In this respect, we may cite the case of Faiz v. The State 1983 SCMR 76 wherein it is held that:‑‑ "The judgment of the High Court makes it abundantly clear that the ocular evidence was totally discarded and the only material utilized by the Court for determining the guilt of the appellants was the defence version. There were no proved or established facts to test the defence version. This distinguishes the decision in Imamudin's case which had proved or established facts. In Balmakund's case a reference to Full Bench of the High Court became necessary because the Judges hearing the case found the exculpatory part of the statement of the accused to be so unworthy of. belief that no Court could act upon them. The Full Bench noted that during the last one hundred years the following two rules of criminal jurisdiction have been consistently observed without any attempt to engraft as exception:‑‑. (a) where there is other evidence a portion of the confession may, in the light of that evidence, be rejected while acting upon the remainder with the other evidence. . (b) where there is no other evidence, the Court cannot accept the inculpatory element and reject the exculpatory element as inherently incredible. In the case of Rahim Bux also it was held that where the conviction is based entirely on the statement of the accused, then that statement should be taken into consideration in its entirety.

9. The above view is based on the sound reason. The accused is questioned only on matters found incriminating against him in the evidence. His reply or narration is not tested or completed either by cross‑examining him or by putting him further questions. The state of his mind is not probed. His bare statement about it exists on record, for whatever its worth. In the absence of any other evidence it has to be accepted as a fact, though apparently not fully established."

13. In the instant case, the statement of the accused was not taken in its entirety and has thus caused miscarriage of justice. Question No.3 put to the accused besides being a composite question was not framed in accordance with the circumstances appearing in the evidence. The object of section 342, Cr.P.C. le cannot be achieved by putting such a question to the accused.

14. We fully agree with contention of the learned defence counsel that it is always the prosecution who has to prove the charge against the accused beyond doubt. It is an accepted principle of administration of criminal justice that whole of the evidence is to be looked into and not merely the statement of the C accused irrespective of the prosecution evidence. The case‑law cited at the Bar and referred to above can be of much help to the trial Court. Since the impugned judgment does not fulfil the requirements of law and the learned Sessions Judge while arriving at the conclusion about guilt of the accused has not appraised the entire evidence and the statement of the accused has also not been considered in its entirety, we have, therefore, decided to set aside the conviction and sentence of the accused and direct the learned Sessions Judge (Abdul Sattar Khan) now posted at D.I. Khan to re‑write the judgment after examining the accused by putting to him the incriminating materials arising out of the evidence. The accused/appellant shall be afforded an opportunity to engage a counsel to defend him. Accordingly, we accept Cr. Appeal No.20/90, set aside the conviction and sentence of the accused/appellant and direct that he shall be kept as an undertrial prisoner till re‑writing of the judgment by the learned Sessions Judge. The death sentence is not confirmed and Murder Reference No.2/91 is answered accordingly. Criminal Revision No.3/91 stands dismissed. N.H.Q./1364/P Case remanded.