' AKHTAR ZAMAN MALGHAN[. J.---This appeal is directed against the judgment dated 10th March, 2004, whereby; the appellants were found guilty under section 302(h), P.P.0 and sentenced to life imprisonment. Benefit of section 382-B, Cr.P.0 was also extended in their favour.
2. Briefly stated, facts of the case are that on 23rd March, 2004 a case under sections 302, 109 and 34 P.P.0 was registered in Levies Station, Panjpai vide F.I.R. No,6 of 2003 on the report of Hamdam wherein it was alleged that his brother Shaham went missing on 15-3-2003 and despite search they could not trace him. During search they suspected that he might have been murdered by someone and after consulting notables they checked all the old wells situated in the camp and found one well filled-in with earth, whereupon they dug the said well and found dead body of his brother buried there. It was further alleged that the notables called all the people of the camp and inquired from Arbab Yousaf, Haji Irgish, Baba Charia, Nazeer Ahmed, Mullah Abdul Ghaffar, Abdul Hammeed and Abdul Rasool suspected to have committed the offence who admitted to have murdered Shaham and offered Rs,4,00,000 in compensation which they refused to accept. After registration of case, P.W.5 Zafar Ali Naib Tehsildar proceeded to the spot, where he prepared site plan Exh.P/5-B and handed over dead body to the complainant on his written request Exh.P/5-C.
He also took into possession clothes of the deceased Shaham through seizure memo Ex. P/5-E. He arrested the nominated accused persons and prepared memo of disclosure of appellant Baba Charia. He also arrested appellant Muhammad Hussain on the pointation of Baba Charia from Quetta and prepared site plan of the tent on the pointation of appellant Baba Charia where Shaham was allegedly murdered. On 29th March, 2003 he arrested appellant Muhammad Hussain in the case and produced all the three appellants before the Judicial Magistrate for recording their statements under section 164 Cr. P.0 who recorded their statements and transferred them to the judicial custody. After completion of investigation he submitted challan before the Court.
3. On commencement of trial, the charge was read over to the appellants, to which they pleaded not guilty. Whereafter; prosecution in order to substantiate the accusation produced six witnesses.
At the end of prosecution evidence the appellants were examined under section 342 Cr. P.C, wherein; they denied all the allegations, however; neither they opted to give statement on oath nor produced any witness in defence.
4. The learned trial Judge on conclusion of trial found the appellants guilty under section 302 (b)
P.P.0 and sentenced them as mentioned above.
5. We have heard the learned counsel for the appellants as well as learned State counsel. It is vehemently contended by the learned counsel for the appellants that there is no evidence on record to connect the appellants with the commission of offence except retracted confessional statements, as such, conviction of the appellants on the basis of such confessional statements without any independent corroboration is not sustainable. He further contended that the confessional statements were result of torture as is evident from the questionnaire, therefore, the same could not be relied upon and the appellants are entitled to be acquitted of the charge. In alternate he contended, if this Court comes to the conclusion that the confessional statements are true and voluntary and can form basis for maintaining conviction, then these confessional statements are to be taken into consideration in toto and if any benefit arises from such confessional statements the same should be extended to the appellants. He further argued that according to the confessional statements deceased Shaham during dark hours of the night entered into a tent where young daughter of appellant Baba Charia was sleeping and attempted to outrage her modesty, whereupon; she raised hue and cry which attracted the appellants who under sudden provocation committed his murder, the fact that no weapon of offence was used in the commission of offence and he was murdered by strangulation also supports such conclusion and under the circumstances at the best the appellants have committed an offence under section 302(c), P.P.0 and the sentences awarded to them is liable to be reduced.
6. On the other hand, the learned State counsel supported the judgment and contended that the confessional statements of the appellants were sufficient to maintain conviction and the grounds urged by the learned counsel for reduction of imprisonment and conversion of conviction to section 302(c), P.P.0 have already been taken into consideration by the trial Court which while convicting the appellants under section 302(b), P.P.0 did not impose death penalty.
7. We have carefully considered the contentions put forth by the parties' learned counsel and have also gone through the impugned judgment as well as evidence on record. According to the prosecution version the appellants committed murder of Shaham and thereafter threw his dead body in a well and filled it with earth. In order to substantiate the accusation, the prosecution produced six witnesses. P.W.1 Moulvi Naik Muhammad deposed that a "Jirga" was constituted in order to resolve the dispute about murder of Shaham. The legal heirs demanded hand of one girl from the accused party whereas; they offered Rs,2,00,000 in compensation of murder but the dispute could not be resolved. It may be seen that statement of this witness is of no help to the prosecution as he has not mentioned the name of person who offered compensation to the legal heirs of deceased. His statement can neither be considered as extra judicial confession nor as circumstantial evidence against the appellants. Similarly; P.W.2 Shah Muhammad is witness to the pointation of place of occurrence by the appellant Baba Charia. He deposed that Baba Charia appellant disclosed after pointing out place of occurrence that he along with accused Muhammad Ameen, Abdul Hameed and Muhammad Hussain murdered Shaham by strangulation, whereafter; threw his dead body in a well. It may be seen that the tent was owned by Baba Charia and same was already in knowledge of the levies as well as Investigating Officer, therefore; any disclosure about such tent does not fall within the ambit of Article-40 of the Qanun-eShahadat Order, 1984 and cannot be used against the appellants being confession before levies. Similarly; statement of P.W.3 Ghous Bakhsh who deposed about disclosure of Baba Charia admitting commission of offence is also inadmissible in evidence under Article-38 of the Qanoone-Shahadat Order, 1984.
P.W.4 Muhammad Umar Khokar, Judicial Magistrate recorded confessional statements of the appellants. He deposed that the appellants were produced before him by the Investigating Officer for recording their statements. He, after observing all legal formalities, recorded their statements. In cross-examination he denied the suggestion that there were marks of torture on the persons of appellants. He also denied the suggestion that at the time of recording confessional statements Tehsildar was also present. The learned counsel objected on the confessional statements of the appellants on the ground that those were result of torture as in answer to question No,6 appellant Muhammad Hussain stated that the levies slapped him but after having gone through the confessional statements as well as questionnaire annexed with the statements we were not persuaded to agree with the contention of learned counsel because appellant Muhammad Ameen and Baba Charia have not alleged any torture before the Magistrate, whereas; Muhammad Hussain in his statement to the question, "whether he was forced or induced to give confessional statement" answered in negative, which shows that the confession was not result of torture nor he alleged that he was forced to record confessional statement. Moreover; no evidence was produced by the appellants to show that they were tortured or were forced to 'record their confessional statements. In their statements recorded under section 342 Cr. P.0 they have admitted to have recorded their statements under section 164 Cr. P.C. And perusal of their statements show that the same were voluntarily and truthful because; facts narrated in the said confessional statements were in exclusive knowledge of the appellants. Merely because they remained in levies custody for a few days is not sufficient to discard their confessional statements as delay simplicitor in recording confessional statements is not sufficient to discard such statements, if after perusal of statements the Court comes to the conclusion that the same were voluntary and true. Similarly; contention of the learned counsel that the retracted confession could not form basis for conviction without independent corroboration, has no substance in view of the facts that all the three appellants confessed their guilt in their statements recorded under section 164, Cr.P.0 and corroborated each other on every material particular. In their confessional statements they deposed that the deceased entered into the tent of daughter of appellant Baba Charia and attempted to outrage her modesty, whereupon she raised hue and cry which attracted the appellants who after apprehending him strangulated him, whereafter; they threw his dead body in a well. As already observed, confessional statements of the appellants appear to be voluntarily and true, therefore; conviction on sole basis of confessional statements can be sustained by concluding that the deceased was murdered by the appellants, however; it may be noted that there is no other evidence on record except confessional statements of the appellants which are to be taken into consideration in toto, as held by the Hon'ble Supreme Court in the judgment reported in PLD 1988 Supreme Court 25, wherein it was observed as under:-- "Plea of self-defence by accused-Confessional statement on such plea retracted-If confessional statement of accused is to be relied upon then it must be relied upon in its entirety where there is no evidence to the effect that right of self-defence was over-exercised."
8. The perusal of confessional statements show that the deceased Shaham intruded into the tent during dark hours of night where daughter of appellant Baba Charia and sister of appellant Muhammad Amin was sleeping and attempted to outrage her modesty. On hearing hue and cry the appellants entered into the tent and murdered the deceased, the fact that deceased during night entered into the tent of a young lady and attempted to outrage her modesty, would certainly have provoked the appellants and in heat of moments they committed murder of deceased by strangulating him. The fact that the appellants have not used any weapon for committing the offence further shows that the act on part of the appellants was sudden and under grave provocation without premeditation, therefore; we are of the considered view that the appellants have not committed Qatl-e-Amd liable to Ta'zir but their case falls under section 302(c), P.P.C. The Hon'ble Supreme Court in the judgment reported in PLD 1996 Supreme Court 274 held that the cases covered by the exceptions to the old section 300 read with old section 304, P.P.0 thereof are cases which were intended to be dealt with under Clause (c) of the new section 302 of the P.P.C. It may be noted that the facts of that case were almost similar to the facts of instant case; in that case too the deceased intruded in the house of accused persons during dark hours of night who was apprehended by the accused party and strangulated to death by putting a "Chadar" around his neck.
For the foregoing reasons, we; are inclined to alter conviction of the appellants from section 302(b), P.P.0 to that of section 302(c), P.P.C. And they are sentenced to seven years' R.I each. Benefit of section 382-B, Cr.P.0 is also extended in their favour.
' The appeal is disposed of accordingly.