1. ' MUHAMMAD NADIR KHAN, J.---Criminal Jail Appeal No,89 of 2003 and Murder Reference No,19 of 2003 arising out of judgment dated 18-7-2003 passed by Sessions Judge Pishin were heard by the Division Bench comprising of Mr. Justice Ahmed Khan Lashari and Mr. Justice Mehta Kailash Nath Kohli. Honourable Mr. Justice Ahmed Khan Lashari while dismissing the appeal answer the Murder Reference in affirmative. However, Mr. Justice Mehta Kailash Nath Kohli while maintaining the conviction of the appellant under section 302(b), P.P.C. Sentenced him to life imprisonment with fine of Rs, one Lac and the Murder Reference was accordingly answered in negative. The matter thereafter has been referred to me as a Referee Judge.
2. ' Facts of the case not to be marshaled as it has already been given in detail by honourable Mr. Justice Ahmed Khan Lashari as well as Mr. Justice Mehta Kailash Nath Kohli. However, it would suffice to observe that appellant was sent to the Court of Sessions Judge Pishin to face trial in case/F.I.R.No,26 of 2002 under section 302, P.P.C. Registered with Levies Thana Gulistan on the report of P.W.1 Muhammad Hussain who while leaving the mosque situated near the house of appellant heard gun-shot reports. He went there and saw Ali Muhammad, brother of appellant, lying in a pool of blood while appellant was seen going towards his house duly armed with a kalashnikov. The matter was accordingly reported to P.W.3 Mahrab Khan Risaldar Levies who along with P.W.4 Naseebullah Khasay Dar Levies reached the place of occurrence. The appellant who had locked himself in a room of his house was arrested and a kalashnikov with magazine loaded with five cartridges and 16 cartridges lying in the pocket of the appellant were recovered. The appellant along with recovered kalashnikov and five cartridges was handed over to P.W.9 Matiullah Tehsildar who reached the place of occurrence on being informed by P.W.3 on telephone. P.W.9 Matiullah conducted formal investigation and challan of the case was submitted in the Court of Sessions Judge Pishin for trial of appellant under section 302, P.P.C.
3. ' On the stated allegations formal charge was framed which was read over to the appellant on 10- 3-2003 to which he pleaded not guilty, thereafter prosecution in order to prove the charge examined as many as nine witnesses namely, P.W.1 Muhammad Hussain Informer, P.W.2 Lal Muhammad was attracted to the place of occurrence by the gun-shot reports and he saw appellant armed with Kalashnikov leaving the place of occurrence, P.W. 3 Mehrab Khan Risaldar Levies, P.W. 4 Naseebullah Khasay Dar Levies arrested the appellant and recovered the kalashnikov with 22 live cartridges from the possession of appellant, P.W.5 Mst. Fairoza mother of appellant stated about hearing the gunshot report whereafter appellant armed with kalashnikov was seen coming and Ali Muhammad was found lying dead while blood was oozing from his head, P.W. 6 Dr. Muhammad Rahim, P.W.7 Dawood Khan Judicial Magistrate recorded the confessional statement of appellant, P.W.8 Haji Ahmed on hearing gun shot report went to the place of occurrence and saw accused armed with kalashnikov running towards his house. Ali Muhammad was lying dead and mother of accused informed that Ali Muhammad was murdered by appellant. In the end of the evidence of prosecution the appellant was examined under section 342, Cr.P.C. Wherein he denied the case of prosecution. However, he neither opted to make statement on oath nor examined any defence witness. Learned Sessions Judge Pishin concluded the proceedings by means of judgment dated 18-7-2003 whereby the appellant has been convicted under section 302(a), P.P.C. And sentenced to death..
4. ' Mr. Naeem Akhtar learned counsel for the appellant argued that there is no eye-witness of the incident. The case of prosecution rests on the confessional statement of appellant which states about the circumstances which resulted in the death of Ali Muhammad. According to the confessional statement the incident is admitted only to the extent of firing of kalashnikov causing death of Ali Muhammad but the said firing was not made by the appellant with intention to commit murder of Ali Muhammad and his death was accidental, hence provisions of section 302, P.P.C.
5. Were not applicable. According to the learned counsel for appellant in the stated circumstances the appellant at the best can be said to have committed Qatl Bil Sabbab. The conviction of appellant under section 302(a) or 302(b), P.P.C. Was on account of misappreciation of evidence.
6. Circumstantial evidence relied does not prove that the appellant intentionally caused the death of Ali Muhammad. It at the best shows that the appellant was only seen leaving the scene of occurrence while except the confessional statement there is no evidence to show that what actually happened at the time of alleged firing. The detail of occurrence has been narrated by the appellant in his confessional statement recorded on the very next day of the incident which was to be taken into consideration in toto as there was no other piece of evidence to connect the appellant with the commission of offence. Learned counsel for the appellant supported his arguments by following case-law:-- ' PLD 1983 SC(AJ&K) 199, PCr.LJ 1994 490, PLD 1999 Karachi 151 and 2004 SCMR 1808.
7. ' Mr. Amanullah Tareen learned A.A.G argued that the evidence available on record proved that the appellant committed murder of Ali Muhammad. According to the learned A.A.-G confessional statement is to be relied only to the extent which is supported by the evidence available on the record. The appellant during trial took plea which was contrary to the plea taken by him in his confessional statement. The appellant rather retracted from his statement stating that it does not contain true version of his statement. According to learned A.A.G in the stated circumstances the confessional statement is only to be accepted to the extent which is not contradicted by the circumstantial evidence. The circumstantial evidence coupled with the confessional statement of appellant prove commission of offence under section 302(b), P.P.C. And in absence of any mitigating circumstance the appellant is liable to the normal penalty i,e, death. Learned A.A.-G.
8. Supported his arguments by following case-law:-- "1989 SCMR 611 and PLD 1958 Peshawar 147".
9. ' Submissions made by the learned counsel for the parties considered. Record of the case perused minutely. P.W.1 Muhammad Hussain along with P.W.2 Lal Muhammad, P.W.5 Mst. Fairoza and P.W.8 Haji Ahmed were attracted to the scene of occurrence by the gun shot reports. When they reached the place of occurrence which happens to be the courtyard of the bathak of house of appellant as well of deceased, appellant armed with kalashnikov was seen going towards the house while Ali Muhammad was lying dead blood oozing from his head. It would be not irrelevant to mention that appellant and deceased are real brothers while P.W.5 Mst. Fairoza is their mother. Statement of P.Ws. 1, 2, 5 and 8 with regard to appellant leaving the scene of occurrence armed with kalashnikov could not be made doubtful while P.W.3 Mehrab Khan Risaldar Levies stated about reaching the place of occurrence on the report of P.W.1 Muhammad Hussain. P.W.3 was accompanied by P.W.4 Naseebullah Khasay Dar Levies. The appellant who had locked him inside the room was arrested by P.W.3 Mehrab Khan and he recovered the kalashnikov loaded with magazine containing five live cartridges from the possession of appellant. Further 17 live cartridges were recovered from the pocket of the appellant. Meanwhile P.W.9 Matiullah Tehsildar reached the place of occurrence and he secured three empties of kalashnikoy lying at the place of occurrence. P.W.9 prepared the map of place of occurrence Ex.P/9-B indicating the place of occurrence which was shown to be in the courtyard of the bethak outside the room which is shown to be place of ablution. According to the map Ex.P/9-B the appellant was shown to have taken position inside the ablution room and waited for deceased.
10. ' P.W.5 Mst. Fairoza in her statement explained that on the day of occurrence at 7-00 a.m the accused and deceased had gone to the mosque for offering Fajr prayers and while Ali Muhammad was coming back to the house the appellant hid himself in the ablution room opposite to the bethak and he made firing on Ali Muhammad whereupon she immediately came out and asked the accused about firing. The accused having the kalashnikov under his arm went in the room and locked himself. In cross-examination P.W.5 though admitted that in her statement to Tehsildar she did not state that accused was hiding himself in the ablution room opposite to the bethak and explained that due to grief she could not inform the Tehsildar in said regard. Said portion of the statement of P.W.5 stated to be improvement if even excluded, then too her statement reflects the circumstances soon after the firing and her such statement is further supported by the statement of P. W.1 Muhammad Hussain, P.W.2 Lal Muhammad and P.W.8 Haji Ahmed against whom appellant failed to bring on record any ill will or motive for his false involvement in the crime. The appellant during cross-examination of above P.Ws without disputing the fact about the death of Ali Muhammad in result of receiving of the bullet fired by the kalashnikov came up with the plea that kalashnikov was in possession of deceased Ali Muhammad who intended to commit murder of appellant but during scuffle that kalashnikov went off and the bullet was received by deceased Ali Muhammad. He also denied the statement of P.Ws.3 and 4 about recovery of kalashinkove from his possession, but none of the P.Ws could be shaken on any material point with regard to appellant leaving the place of occurrence soon after the gun shot reports duly armed with kalashnikov which was recovered from his possession by P.W.3 Mehrab Khan Risaldar Levies.
11. Learned counsel for the appellant who felt difficulty to support the plea of appellant raised during cross examination of P.Ws abandoned the same and placed reliance on the confessional statement of appellant wherein the plea of appellant was that on account of dispute of property the deceased threatened him that he would not spare him alive whereupon he picked the kalashnikov and intended to make aerial firing to attract people of the village who would make settlement between them, but Ali Muhammad did not allow him to do so. Meanwhile accidentally the kalashnikov went off and the bullet was received by deceased Ali Muhammad.
12. ' The confessional statement was not accepted to be containing true account of his statement as during cross examination of P.W.7 Dawood Khan Nasir Judicial Magistrate appellant claimed that the statement narrated by him was not correctly recorded and a similar plea was taken by him in his statement under section 342 Cr. P.C, although there is no bar on taking more than one plea by the defence and the prosecution cannot be extended any benefit by the plea of defence which defence failed to prove as it is the duty of the prosecution to prove its case on its own strength and not on the weaknesses of the defence. But the defence plea which defence failed to prove and is also found to be unrealistic which does not appeal to prudent mind would not defeat the case of prosecution which is proved by independent evidence. In the present case the confessional statement which was recorded on the very next day of the incident and the accused did not deny making of the statement and his plea was that the statement made by him was not correctly recorded, but the said plea has been abandoned by him and defence has totally rested its case on the confessional statement which shows that the appellant himself was armed with kalashnikov and he intended to make aerial firing. His confessional statement does not explain the circumstances in which the kalashnikov went off accidentally and bullet fired by the same was received by the deceased Ali Muhammad. It is to observe that after receiving of bullet by deceased the appellant who as per his plea had no intention to commit his murder was required to make effort to save his brother but the evidence of P.Ws.1, 2, 5 and 8 reflects that the appellant left his brother at the scene of occurrence and went to his house. Such conduct of the appellant is found to be not consistent with his plea. The conduct of the appellant soon after the incident reflects on his intention which negates his plea about accidental firing of kalashnikov.
13. ' Adverting to the case-law so relied by the counsel for the appellant it is to observe that the honourable Supreme Court of Pakistan in its judgment 2004 SCMR 1808 observed that the solitary judicial confession if made the basis for conviction, it has to be relied upon in toto without any pick and choose. Similar view is reflected by the judgments reported in 1994 PCr.LJ 490 and PLD 1983 SC(AJ&K)
199. The above judgments are of no help to appellant as the case of prosecution does not solely rest on the judicial confessional statement of the appellant. The prosecution has set up its case by the circumstantial evidence which is supported by the judicial confessional statement of the appellant. In such circumstances the judgment PLD 1999 Karachi 151 is found to be applicable where the confessional statement which was recorded with delay was treated as substantial corroboration of other evidence and was accepted for awarding conviction to the appellant. Such view is further supported by the judgment PLD 1958 Peshawar 147. Relevant observations read as under:-- "The legal proposition put forward by the learned counsel is not quite correct and I consider it necessary to make it clear once more. The correct proposition of law as enunciated from time to time by deferent High Courts is that if the only evidence in a case consists of the confession of an accused person and there is no other ocular or circumstantial evidence to connect him with the crime, the confession must be accepted or rejected as a whole. But if on the other hand, apart from the confession, there is evidence, whether ocular or circumstantial, which contradicts a part of the confession, it is perfectly permissible to a Court to accept, that part of the confession which is consistent with the evidence, and reject that part of the confession which is inconsistent with it. For example A is charged with the murder of B. A confess that he killed B, but he did it after a murderous attack was made on him by the deceased. There is other evidence to show that the deceased was not armed and he never attacked the accused. In these circumstances the Court can accept the inculpatory portion of the confession, and reject the exculpatory portion as false."
14. As stated hereinabove the appellant and deceased were real brothers. There was dispute of partition of property between them. The appellant though in his confessional statement made an attempt to make out reason for deceased to advance threat to him but the explanation is found to be not plausible as it was plea of appellant that it was deceased who was demanding the amount and he advanced threats to appellant that he would not be spared alive but the deceased was neither stated to be armed nor the circumstances reflect that there was any immediate threat to the life of appellant to justify his act to make firing with kalashnikov. The mother of appellant has also not supported the plea of appellant. She has rather involved the appellant in the intentional murder of her other son Ali Muhammad and her such plea cannot be taken lightly.
15. ' The evidence discussed hereinabove, therefore, leaves no room to doubt that the appellant intentionally committed murder of his brother Ali Muhammad. However, there is no evidence to attract the provisions of section 302(a), P.P.C. And in the stated circumstances the appellant is found to have committed offence under section 302(b), P.P.C. Further the record does not reflect any mitigating circumstance entitling the appellant for lesser punishment. Thus I find myself in agreement with the conclusion drawn by honourable Mr. Justice Ahmed Khan Lashari. Accordingly the appeal having no merits is dismissed upholding the death sentence of the appellant in result of which the murder reference is answered in affirmative.