P L D Baghdad-ul﷓Jadid 67 (PLP)

The learned Sessions judge recorded his conviction :‑-- (a) On the track evidence. (b) Extra judicial confession. (c) Recovery of the body of the deceased by the accused from a sand mound which was identified by Ali, P. W. 10 as that of his son Sharif. (d) The disposal of the goats of the deceased and their recovery by the accused. (e) The confession of the accused before the Magistrate under section 1:64 of the Criminal Procedure Code. As regards the track evidence, the learned counsel for the appellant has contended that this is an evidence of a flimsy character and in the present case it is of no value because the impressions identified by the tracker as those of the accused were not of bare feet but of shoes alleged to have been worn ' by the accused at that time. As many persons can wear shoes of the same type and size consequently it is difficult to hold that the impression which were ascribed by the tracker to the accused were of the appellant. In support of his contention he has relied on 73 I C 331 where it was held that the foot prints said to be those of the appellant are of shoes and not of bare feet. There may be many other shoes which are similar to those of the appellant and it is therefore difficult to rely implicitly on the evidence of a tracker so as to say that the tracks are undoubtedly those of the shoes worn by the accused persons. He further quoted 42 I C 129 where the Division Bench held that it is unsafe to place complete reliance on the evidence of trackers to the correspondence of' tracks. The same view was adopted in 27 Criminal Law Journal

946. We therefore agree with the view of the learned counsel of the appellant that the track evidence is of little value in this case. As regard the extra judicial confession, the learned counsel contended that the story of the extra Judicial confession by the accused is negatived by the First Information Report. It is true, that according to the store of the prosecution extra Judicial confession was made by the accused person before the First Information Report had been lodged But First Information Report is never a substantive piece of evidence It can be used only to corroborate or to contradict the maker thereof. The file does not show that the maker of the First Information Report was contradicted on this point during his examination before' the Court, in addition to this The confessional statement of the accused before the Magistrate under section 164, Criminal Procedure Code proves that the accused when lie was brought from his house to the scene of the occurrence had made a confession in the presence of the witness presence there. We cannot therefore hold that he made no extra Judicial confession and the witness had deposed that the accused had admitted the guilt in their presence. We are strongly of opinion that it is not safe to record the conviction of an accused person on extra Judicial confession. Extra Judicial confession must be very carefully looked at and cautiously and sparingly acted, upon. But in this case the responsibility of the Court is lightened to a considerable extent when the accused person himself admits in his confession before the Magistrate that he had made an extra judicial confession as well. It is for this reason that in this particular case we hold this extra Judicial confession as a piece of evidence against the appellant. As regards the third point that is of the recovery of the dead body of the accused, Mr. Mustafa Khan, contended that the mere pointing out of the body was no evidence against the accused and to support to his contention he had depended on the observations which have frequently been made by the High Courts relating to such recoveries of stolen properties. We do not go against the principle on ,which the learned counsel depends. Here the conduct of the accused that is his extra judicial confession lends support to the recovery of tile dead body at .the instance of the accused. In his extra Judicial confession which was maintained by him in his confession before the Magistrate, he had admitted that he had killed Sharif and had buried his body at the place from where it was recovered. In this case, therefore, the recovery the dead body at the instance of the accused proves that the dead body was buried by him and the presumption that he may have se3n somebody burying at that place stands excluded. Evidence of Mangla P. W. 6 and Farzand Ali P. W. 4 proves that the accused had sold 13 goats, 11 to the one and two to the other for Rs. 130 at Rs. 10 each. The receipt Ext. P U bears the thumb‑impression of the accused. Its scribe Ibrahim P W. 15 and Abdul Aziz, Lambardar P. W. 7 have proved that the thumb‑impression on the receipt was of the accused The evidence proves that the goats and skin of a slaughtered goat were recovered From those witnesses. The recovered goats were identified by the father of the deceased as his own. The evidence therefore clearly proves that the accused caught hold of the goats which belonged to Ali, the father of the deceased and which the deceased was grazing. The last question is of the confession made by the accused before the Magistrate. Mr. Mustafa Khan, has not challenged the validity of the confession. His contention however, is that the confession should be read as a whole and not in parts and that the confession shows that his cli6nt had not pre‑meditated the murder of the deceased. Accordingly to a part of the confession the trouble arose from the side of the deceased, because as stated by the accused he had left his two goats with the deceased one of which was lost by the latter. When the accused claimed his lost goat an altercation ensued between them as a result of which the deceased abused the accused and took up a lath, to give a blow to the accused: The latter caught hold of the lathi and injured Sharif with the result that he died on the spot. In support of his contention, he referred us to 41 Cr: L. J. 259 where the Division Bench of Allahabad High Court had ruled that it is not right for the Court to put reliance on a portion of the statement made by the accused person which would implicate him in the commission of a crime and to disregard another portion simply because it would go against the prosecution story'. The same view was adopted by the Madras High Court in 29 Cr. L. J. 589 where it was held that if an accused person is to be convicted on his confession, it must be taken as a whole and it would be unsafe to use the part against him and discredit the part in his. favour. In 1930 Lah. 269 the same view was held and it was ruled that when the only account of what happend on the night of murder is given by the accused himself and it is his admission contained in that statement that forms the basis of his conviction, the statement should be accepted in its entirety and if it establishes any mitigating circumstances the accused should be given the benefit of it. The learned Crown Counsel do the other hand contended that if a part of the confession is proved to be untrue and a part true, the untrue portion should be excluded from consideration He sought support from A I R 1940 Lah.

157. We have no quarrel with this portion. The question however, is whether the Crown in this case as in the ruling quoted by the learned Crown counsel has established that the part of the confession on which the learned counsel for the defence has relied is untrue. There is not a title of evidence to that effect in this case. In the Lahore Ruling it ‑was established as a fact that the part of the confession on which the accused's counsel wanted to depend was proved to be false and it was for this reason that that portion was excluded and the portion of the statement that was treated to be correct was accepted. In this case the prosecution has not proved any evidence to prove that the part of the confession on which the learned counsel for the defence depended is untrue. Here is only the story given by the accused person in his confession and consequently in the face of the Rulings quoted by the learned counsel for the appellant, his contention should be accepted and the confession should be accepted in its entirety. 1930 Lah. 469 to which reference has already been made by me is on all fours the facts of the present case. Our conclusion therefore, is that the conviction of, the accused based on his confession and supported by circumstantial evidence was rightly recorded. The question of sentence needs our consideration. As we have accepted the confession in its entirety, consequently we are bound to hold that the trouble which resulted in this unfortunate murder was started by the deceased as he abused the accused and tried to strike him by the weapon which eventually was used by the accused to cause the death of the deceased. In the presence of these circumstances and following the view adopted in 1930 L. 269, we are of opinion that this is a case in which extreme penalty of Law for the purposes of punishment is not called for. We therefore maintaining, the conviction of the appellant accept his appeal and setting aside the sentence of death, sentence him to transportation for life. Tile appellant to be informed through Jail. K.M.A. Appeal rejected.