' SYED JAMSHED ALI, J.--- This jail appeal is directed against the judgment of the Peshawar High Court, Circuit Bench, dated 23-4-2004 whereby Criminal Appeal No,119 of 2003 filed by the appellant was dismissed and the death sentence awarded to him was confirmed. His co-accused namely, Munir Ahmed, was however, acquitted.
2. The prosecution case was that on 18-11-2001, Muhammad Amir and Muhammad Shahzad, brothers, inter se, were selling sugar cane bits (Ganderis) on their cart at Adda Sheikh Yousaf, when at 13-45 hours two persons came there for purchasing sugar cane bits, one with beard and the other without it. An altercation ensued on the rate of the sugar cane bits (Ganderis) on which the man without beard fired at Muhammad Amir and when Shehzad tried to catch hold of the assailant, the same man fired at him also. Saeed Anwar, a passerby was also injured by fire of the said assailant. The complainant, Mir Alam (P.W.10) real brother of Muhammad Amir and Shehzad took them and the injured, Saeed Anwar, to the District Headquarter Hospital, D.I. Khan, where Muhammad Amir and Shehzad succumbed to the injuries. Case F.I.R. No,358, dated 18-3-2008 was accordingly, registered under sections 302/324/34, P.P.C.
3. During investigation of the case, appellant Allah Nawaz and Munir Ahmed made judicial confessions before a Judicial Magistrate (P.W.6)., A .30 bore pistol was recovered at the instance of Allah Nawaz, appellant. One .30 bore empty was also recovered. The two accused were challaned.
After the trial, both the accused were convicted under section 302(b)/34, P.P.C. And sentenced to death on two counts. They were also convicted under section 324/34, P.P.C. And sentenced to suffer 3 years' R.I. With a fine of Rs,10,000 each. In default of payment to undergo one year's R.I. The appellants were further convicted under section 337-A(ii)/34, P.P.C. And sentenced to payment of "Arsh" at the rate of 5% of the "Diyat" of the year 2001. In case of failure to pay Diyat, they would remain in jail in the same manner as if sentenced to simple imprisonment until the Arsh was paid.
This was vide judgment, dated 8-12-2003 of the learned Additional Sessions Judge-I, Dera Ismail Khan.
4. Criminal Appeal No,119 of 2003 and Jail Petition No,120 of 2003 were filed by the appellant Allah Nawaz while Criminal Appeal No,124 of 2003 was filed by the appellant Munir Ahmed. The learned High Court, vide judgment, dated 23-4-2004, accepted the appeal of Munir Ahmed while dismissed the appeal of Allah Nawaz and his death sentence was confirmed.
5. The learned High Court, in the impugned judgment, took the view that the eye-witness account was consistent, the judicial confessions and identification parade in which the accused was clearly identified were also relied upon.
6. Leave to appeal was granted vide order, dated 26-7-2005.
7. The learned counsel for the appellant submits that the eyewitnesses were not in fact present at the spot because despite the fact that both the eye-witnesses knew Allah Nawaz, he was not named in the F.I.R. For which there was no explanation. Regarding judicial confessions, the contention of the learned counsel was that it was involuntary and that the appellant was handed over to the police after recording of his confession which suggests that it was made under duress, As to the recoveries, he submits that although a pistol and one empty were recovered but there is no report of the Fire arm Expert that the empty matched with the recovered pistol, therefore, the recoveries were totally irrelevant.
8. On the hand, the learned counsel for the State submits that it is a double murder case. The occurrence took place in broad daylight. The eye-witness account, the identification parade and the judicial confession proved beyond any doubt the guilt of the appellant and, therefore the death penalty was rightly awarded to him. He maintained that there was no reason for real brothers of the deceased to substitute the real culprit. He relied on Khan Muhammad and others v. The State 1999 SCM R 1818 to contend that judicial confession alone would, in certain circumstances be sufficient to sustain the conviction.
9. We have heard learned counsel for the parties and have carefully gone through the record. The eye-witness account was given by the complainant, P.W.10, Mir Alam, P.W.11, Inayatullah and Saeed Anwar, P.W.12, a passerby. As for as the last mentioned eye-witness is concerned he does not implicate any of the three accused and, therefore, his testimony is of no consequence. As far as P.W.10 is concerned, he admitted in cross-examination that he knew Allah Nawaz by name even prior to the occurrence. Inayatullah (P.W.11) likewise also admitted that he knew Allah Nawaz by name prior to occurrence. Even otherwise, the appellant runs a tea stall at Adda Sheikh Yousaf, Inayatullah, (P.W.11) runs a filter agency and Mir Alam (P.W.10) resides in village Sheikh Yousaf. The F.I.R. Was lodged in the hospital when P.Ws.10 and 11 had taken the two deceased and the injured to the hospital but despite the fact that both these witnesses knew appellant Allah Nawaz, he was not named in the F.I.R. Omission of his name from the F.I.R. Leads us only to the inferences that they were not present at the spot. We have also noticed that on the inquest reports of the two deceased prepared by the police immediately after registration of the case, one Muhammad Suleman and Sarfraz identified both the deceased which also shows absence of P.W.10 at that time. In the circumstances, the identification parade was also of no consequence. The recovery of pistol or empty or clothes, or bloodstained earth do not connect the appellant with the crime.
10. Excluding the eye-witness account, the identification parade, the evidence of recovery, we are left with the judicial confession only. We have carefully gone through it. The Judicial Magistrate appeared and testified that it was recorded after fulfilling all the formalities. The mere suggestion of the defence that it was involuntary is not enough to throw it away. The contention of the learned counsel for the appellant that the appellant was handed over to the police after the confession is also not correct. We have seen the judicial order available on the record which shows that the appellant was remanded to the judicial custody. There is nothing on record to disbelieve the confession, According to his confession, the appellant claimed that Muhammad Amir deceased, assaulted him with a Lath' on which he fired at Muhammad Amir while Shahzad also struck him from the back on which he fired two shots at Shahzad. Now it is settled law that confession is to be rejected or accepted as a whole. We noticed that while Shahzad was unarmed, Muhammad Amir, deceased, was stately carrying Lathi, as against that, the appellant/accused was equipped with fire-arm and inflicted injuries to both the deceased at the vital part of the body i,e, the chest. In the circumstances we are of the view that the appellant exceeded his right of self-defence.
11. In view of the above, we convert his conviction from 302(b) to 302(c) of the P.P.C. And alter the sentence of death to 14 years' R.I. On two counts. The appellant will also pay compensation of Rs,1,00,000 to the legal heirs of the deceased, in default he would undergo simple imprisonment for one year. The sentence of 14 years' R.I. Awarded to the appellant shall run concurrently. He will also be entitled to the benefit of section 382-B, Cr.P.C. So far as the conviction and sentence under sections 324 and 337-A(ii)/34, P.P.C. Are concerned, since the injured did not implicate the appellant nor it was confessed that the appellant also caused injury to Saeed Anwar, therefore, he is acquitted of the said charges.
12. In view of the above this appeal is partly allowed in the above terms.