2010 PLP 1684 (MLD)

MANZOOR AHMAD MALIK, J.

This judgment shall dispose of Criminal Appeal No.381-J of 2003 (Nazir Ahmad v. The State) and Murder Reference No.456 of 2003 sent by the learned trial Court for confirmation or otherwise of the sentence of death awarded to the appellant, as they arise out of the same judgment dated 27-5-2003 passed by the learned Additional Sessions Judge-II, Chunian, District Kasur, whereby, appellant was convicted for the murder of his real brother Muhammad Ali under section 302(a), P.P.C. and sentenced to death with a further direction to pay diyat amount to the legal heirs of the deceased. Appellant was also convicted under section 201, P.P.C. and sentenced to five years' R.I. with a fine of Rs.5,000 in default whereof to further undergo' S.I. for six months. However, benefit of doubt was extended to Mst.Rasulan Bibi co-accused by way of acquittal from the charge.

2. Brief facts of the case, as given by P.W.6 Muhammad Bashir complainant in the F.I.R. (Exh.Pl) are that Muhammad Ali (deceased) was his elder brother whereas Nazir Ahmad (appellant) was his younger brother. According to the complainant, the deceased was married while the appellant was un-married and both were living together in the house of the deceased. It was alleged by the complainant that Nazir (appellant) developed illicit liaison with the wife of the deceased and the deceased had reprimanded both of them. The complainant stated in the F.I.R. that his deceased brother Muhammad Ali was missing for the last about 13/14 days, upon which, he inquired from his brother Nazir (appellant) and "Bhabhi" Mst. Rasoolan Bibi acquitted co-accused but they deferred the matter on one pretext or the other. It was further stated in the F.I.R. that on 7-10-2002, the complainant, his brother Muhammad Ashiq and one Muhammad Aslam P.W. inquired from Nazir Ahmad (appellant) and Mst. Rasoolan Bibi, upon which, they confessed their guilt by stating that 13/14 days prior to the said day, they administered intoxicant in the "salmi" and served the same to Muhammad Ali deceased who went to sleep, so, during the night hours at about 3/4 a.m., Mst. Rasoolan Bibi caught hold of legs of Muhammad Ali deceased whereas Nazir Ahmad appellant chopped his neck with a "Toka", burried his dead body in the courtyard of his house and begged pardon.

3. After completion of investigation, challan was prepared and submitted before the learned trial Court, copies were distributed to the accused and charge was framed on 11-4-2003. In response to a question "Do you plead guilty to the charge or not?" the appellant stated as under:-- "Ans. I plead guilty and want to give my detail statement, in this respect...". Record of the learned trial Court reveals that after framing of the charge, the appellant made the following confession:-- "A scuffle took place in between me and my real brother Muhammad Ali deceased on the matter of irrigation of our fields on the turn of water through Tubewell at about 10/11 p.m. night of occurrence about 10/12 days prior to the registration of this case and I was holding a Kassi in my hand and I gave him a Kassi blow on his head towards right side, upper the right ear and after receiving Kassi blow 'Muhammad Ali fell down and died there and then. I did not give Kassi blow to my deceased brother Muhammad Ali intentionally. However, due to fear I myself buried the dead body of my deceased brother Muhammad Ali in the courtyard of my own house. The co-accused, namely, Mst. Rasulan Bibi my Bhabhi is innocent in this case. She has been falsely involved in this case by my brother Bashir Ahmad. I beg for pardon." However, acquitted co-accused of the appellant Mst. Rasoolan Bibi did not plead guilty and claimed trial. In order to prove its case, prosecution produced as many as 8 P.Ws. during the trial. After the close of the prosecution case, the statement of the appellant was recorded on Oath, wherein, the appellant stated as under: "A scuffle took place in between me and my real brother Muhammad Ali deceased on the matter of irrigation of our fields on the turn of water through Tubewell at about 10/11 p.m. night of occurrence about 10/12 days prior to the registration of this case and I was holding a "Toka" in my hand and I gave him a "Toka" blow on his head towards right side, upper the right ear and after receiving "Toka" blow Muhammad Ali fell down and died there and then. I did not give "Toka" blow to my deceased brother Muhammad Ali intentionally. However, due to fear I myself buried the dead body of my deceased brother Muhammad Ali in the courtyard of my house. The co-accused, namely, Mst. Rasulan Bibi my Bhabhi is innocent in this case. She has been falsely involved in this case by my brother Bashir Ahmad. I beg for pardon". Thereafter, the learned trial Court convicted and sentenced the appellant as stated above on the basis of confessional statements made by him before the learned trial Court on and without Oath.

5. Learned counsel for the appellant contends that the prosecution has relied on extra judicial confession allegedly made by the appellant, the recovery of "toka" and the confessions made by him during the trial. Further contends that as far as extra-judicial confession allegedly made by the appellant is concerned, admittedly, it is a weak type of evidence which was made before P.W. Muhammad Ashiq and P.W.5 Muhammad Aslam. Adds that P.W. has stated in Court that no confession was made by the appellant or the acquitted co-accused Mst. Rasoolan Bibi before him, so, he was declared hostile. While discussing the evidence of P.W.5, learned counsel submits that the said witness has himself admitted that he gave certain slaps and also put pressure upon the appellant who, thereafter confessed his guilt of having killed the deceased. According to the learned counsel for the appellant, this P.W. stated that the appellant confessed before him that he had administered intoxicant tablets in the "Salan" to make the deceased unconscious but the same is belied by the report of the Chemical Examiner (Exh.PO) whereby no poison was detected coupled with fact that the confession was procured under pressure and coercion after giving slaps to the appellant, therefore, the same cannot be relied upon.

6. Learned counsel, while advancing his arguments, contends that so far as recovery of "Toka" is concerned, report of the Serologist is missing and even otherwise in the absence of any other evidence, the recovery of "Toka" (P1) allegedly recovered at the instance of the appellant which was taken into possession through memo Exh.PA is of no avail to the prosecution.

7. While concluding his submissions, learned counsel contends that as far as confession of the appellant is concerned, it has to be accepted or rejected as a whole.

8. The learned Additional Prosecutor-General for the State, frankly concedes that the only piece of evidence which can be considered against the appellant is his own confession before the Court.

9. We have heard learned counsel for the parties at length, have given anxious consideration to their arguments and have also scanned the evidence on record with the able assistance of learned Advocates for the parties.

10. The prosecution, in order to prove its case against the appellant, produced the following pieces of evidence:--. (i) Extra-judicial confession; (ii) Recovery of "toka ; (iii) Confessions before the Court; and (iv) Recovery of dead body.

11. As far as first piece of evidence i.e. the extra-judicial confession, is concerned, the same was allegedly made by the appellant before P.W.S. Muhammad Aslam and P.W.1 Muhammad Ashiq before whom the complainant P.W.6 Muhammad Bashir brought the appellant. According to P.W.5, he put pressure on the appellant and even gave 3/4 slaps to him whereafter the appellant allegedly confessed to have killed the deceased with the help of acquitted co-accused Mst. Rasoolan Bibi, therefore, such type of extra-judicial confession which was obtained through pressure or coercion, which even otherwise is always considered to be a very weak type of evidence and the Courts feel reluctance to accept the same without independent corroboration, cannot be relied upon to maintain conviction of the appellant on a capital charge coupled with the fact that the other witness of this extra-judicial confession, namely, P.W.1 Muhammad Ashiq stated that the appellant did not make any confession before him. Moreover, it was further allegedly confessed by the appellant that before killing the deceased, they administered intoxicant tablets to the deceased through "Salan" whereafter he became unconscious but the said factor is belied by the report of the Chemical Examiner(Exh.PO), according to which, no poison was detected from the viscera of the deceased, therefore, this piece of evidence is excluded from the prosecution evidence and the learned trial Court has rightly observed at page 9 of the impugned judgment that the extra-judicial confession made by the appellant before the P.Ws was not voluntary and it was result of some pressure.

12. The next piece of evidence furnished by the prosecution is the recovery of "Toka" at the instance of the appellant. We may mention here that there is no report of the Serologist on the record in this regard, so, its recovery is of no avail to the prosecution.

13. Now the most important piece of evidence against the appellant, which has been relied upon by the learned trial Court for the conviction and sentence of the appellant, is that after framing of charge against the appellant, on a question put to him i.e. "What do you want to say", as quoted above, he confessed to the effect that a scuffle took place between him and his real brother Muhammad Ali deceased on the matter of irrigation of their fields on the turn of water through tubewell at about 10/11 p.m. night of occurrence about 10/12 days prior to the registration of the case. According to the said confession, at that time, he was holding a Kassi in his hand and gave the deceased a Kassi blow on his head towards right side, upper the right ear and after receiving Kassi blow the deceased Muhammad Ali fell down and died there and then. He further stated that he did not give Kassi blow to his deceased brother Muhammad Ali intentionally, however, due to fear he himself burried the dead body of his said deceased brother Muhammad Ali in the courtyard of his house. The appellant further confessed that his co-accused, namely, Mst.Rasulan Bibi, his Bhabhi was innocent as she had been falsely involved in the case by his brother Bashir Ahmad. At the end of the confessional statement, the appellant begged for pardon from the Court.

14. Thereafter, at the end of the prosecution evidence, statement of the appellant was recorded under section 342, Cr.P.C. on Oath and in reply to question as to "what do you want to say", he made a similar statement qua confessing murder of his brother Muhammad Ali.

15. We have noted that the learned trial Court, as per para. 24 of the impugned judgment of conviction, has convicted the appellant on the basis of his confessions made before the Court on Oath and without Oath and sentenced him to death under section 302(a), P.P.C. We have further noted that though the appellant has confessed the killing of his brother but not in the manner as alleged by the prosecution. The prosecution case was that the deceased was done to death after administering poison by the appellant and his acquitted co-accused Mst. Rasoolan Bibi (widow of the deceased) who allegedly developed illicit relations with the appellant. But the appellant confessed to have killed the deceased as a result of a quarrel which took place between the appellant and the deceased on the matter of irrigation of their land upon which the appellant gave a "Kassi" blow, which he was holding at that time, on the person of the deceased who died there and then whereafter he burried his dead body in the courtyard of his house. In the said confession, he has also stated that he did not give Kassi blow to his deceased brother Muhammad Ali intentionally and because of fear he burried the dead body of his deceased brother in the courtyard.

16. This occurrence allegedly took place during the dark and dead hours of the night which was witnessed and was reported to the police by P.W.6 Muhammad Bashir (complainant) after about 14/15 days of the occurrence which incident, according to the complainant, was allegedly un-earthed on the alleged extra-judicial confession made by the appellant in front of the complainant and P.W. Muhammad Ashiq and P.W.5 Muhammad Aslam. The prosecution case, as discussed above, has been disbelieved by us as the extra-judicial confession of the appellant was under duress and coercion while the alleged recovery of "toka" is without any report of the Serologist.

17. Now we are left with the confessional statements of the appellant to reach at a just conclusion of the case.

18. It is settled law that statement of an accused recorded under section 342, Cr.P.C. or his confession is to be accepted or rejected in its totality. To fortify our view, reliance is placed on a judgment of the Hon'ble Supreme Court of Pakistan in the case of Shabbir Ahmad v. The State (PLD 1995 Supreme Court 343), wherein, at page 347, the learned Apex Court was pleased to observe as under: "(6) The statement of an accused has to be read in its entirety. It is to be accepted or rejected as a whole. It is not permissible to accept the inculpatory part to corroborate the prosecution evidence and reject the exculpatory passage. Where the accused makes a statement to have committed an offence but simultaneously raises plea constituting a defence, the Court will I not rely on the inculpatory portion and reject the exculpatory. However, where prosecution has produced clear, cogent and reliable evidence, the exculpatory part may be rejected and conviction can be recorded on such evidence ..".

19. The first confessional statement of the appellant (without Oath) was made before the learned trial Court on 11-4-2003 and he confessed the guilt of killing the deceased in a specific manner. He made a similar statement on 23-5-2003 (on Oath) when his statement was recorded and remained consistent on his stand. We have gone through both the confessional statements of the appellant and noted that according to the appellant a scuffle took place between him and his deceased brother on the matter of irrigation of their respective fields during the night hours. According to him at those dead hours of the night, he was holding a kassi/toka in his hand and unintentionally gave a blow with it on the person of the deceased which landed on his head towards right side, upper the right ear which proved fatal and the deceased died at the spot. He has further confessed to have burried his dead body in the courtyard of the house due to fear which was recovered from there. Therefore, in the given circumstances and after having accepted appellant's confessional statement, we are of the view that it is not a pre-planned murder as the appellant suddenly gave a blow on the head of the deceased because it is very common in the village life that the villagers/ farmers normally keep with them "kassis" or "tokas" to irrigate lands or to cut the fodder. In this view of the matter, appellant's conviction under section 302(a), P.P.C. cannot be maintained, the same is set aside and, instead he is convicted under section 302(c), P.P.C. and sentenced to ten years' R.I. with a compensation of Rs.50,000 to be paid to the legal heirs of the deceased by the appellant as provided under section 544-A, Cr.P.C. in default whereof to further undergo' S.I. for six months. However, his conviction under section 201, P.P.C., fine and imprisonment in default thereof is maintained. Both the sentences shall run concurrently and benefit of section 382-B, Cr.P.C. is extended to the appellant. This appeal is partly allowed and disposed of in the above noted terms. Murder Reference is answered in the NEGATIVE and sentence of death is NOT CONFIRMED. N.H.Q./N-17/L Order accordingly.