' MUHAMMAD HASHIM KHAN KAKAR, J.---Appellant Muhammad Afzal has sent Criminal Jail Appeal No,(s) 1 of 2007 through Superintendent, Central Jail, Mach, challenging the judgment dated 29th December, 2006, passed by the Sessions Judge, Sibi, whereby he was convicted and sentenced under section 302(b), P.P.C. To death as ta'zir, whereas the Sessions Judge has sent Murder Reference No:(s) 1 of 2007 for confirmation of the sentence of death or otherwise. Since common question of law and facts is involved, therefore, both the matters are being disposed of by means of this common judgment.
2. Complainant Abdul Hai in his Fard-e-Bayan Exh.P/1-A has alleged that he is permanent resident of Zareena Rind Ali and by profession is an Arabic teacher. He went to Quetta in order to spend summer vacations there, whereas his brother Adam Khan and his family members were residing at Rind Ali and he earned his livelihood by , the source of Zamindari. He further alleged that he was sleeping in his house at Quetta, when at about 1-45 p.m., he was informed by his relative Karam Elahi by means of telephone that his brother Adam Khan and maternal cousin Bakhsh Ali, who, was stayed with his brother Adam Khan as guest, at about 1-30 p.m. Were murdered by Muhammad Afzal (appellant) by means of Kalashnikov, who was identified by him while fleeing away by climbing over a wall. On that, he went to the house of his brother situated at Rind Ali, where he saw the dead bodies of Adam Khan and Bakhsh Ali in pool of blood and the relatives and neighbours were also gathered there. He also alleged that one Abdul Ghafoor told him that at about 1-40 a.m., he was sleeping in his house, when accused Muhammad Afzal came there along with a Kalashnikov and told that he had committed the murder of Adam Khan and his guest by means of firing and he may be given shelter, however, he could not give shelter to him. Consequently, on the basis of Farde-Bayan,' a case vide F.I.R. No,25 of 2005, under section 302, P.P.C. Was registered by the Police Officials of Dhadhar Police Station District, Sibi against the appellant.
3. After registration of the F.I.R. Exh.P/11-A, investigation of the case was entrusted to P. W.11.
Muhammad Arif, S.-I., who visited the site, prepared site sketch Exh.P/11-B 3 and site inspection memo. Exh.P/8-A, secured blood of deceased persons, prepared its parcels Nos.1 and 2, collected thirteen empties vide memo and prepared its parcel No,3, took into possession blood-stained clothes of deceased persons from Medical Officer, Civil Hospital, Dhadhar and prepared its sealed parcels. Nos.4 and 5, prepared inquest reports Exh.P/1-B and Exh.P/1-C of the deceased persons, recorded the statements of P. Ws: and after necessary proceedings released the dead bodies to their heirs and arrested the accused.
' Further investigation in the matter was carried out by P.W. 12 Ali Akbar, S.-I./S.H.O. On 14th September, 2005, witnesses Master Karam Elahi and Abdul Ghafoor came to Police Station, who intended to record 'their statements under section 164 of the Cr.P.C., at which they were produced before the Judicial Magistrate, Dhadhar, who recorded their statements under section 164 of the Cr.P.C. On 15th September, 2005, during course of investigation, the accused made disclosure and in consequence whereof, recovery of crime weapon i,e, Kalashnikov, a magazine and nine cartridges, were recovered from his house, which were taken into possession vide recovery memo.
Exh.P/10-A and separate case under the Arms Ordinance was registered. On 20th September, 2005, he obtained the medical certificates of the deceased Adam Khan and Bakhsh Ali. On 22nd September, 2005, the accused made disclosure that he had committed the murder of deceased persons, at which the disclosure memo was prepared. He sent the blood-stained clothes of the deceased to FSL, Quetta and Kalashnikov and empties to Ballistic Expert, Karachi. On 23rd September, 2005, after completion of investigation, incomplete challan Exh.P/12- A was prepared.
On receiving FSL report Exh.P/12-B, he prepared-supplementary challan Exh.P/12-C. He received report of the Ballistic Expert Exh.P/12-D and prepared complete challan Exh.P/12-E and appellant was sent up to face the trial.
4 A formal charge was framed and read over to the appellant on 19th October, 2005, to which he pleaded not guilty and claimed trial. The prosecution, in order to prove the charge, produced twelve witnesses. P.W.1 Abdul Hai is complainant of the case, who exhibited Fard-e-Bayan Exh.P/1-A, inquest reports Exh . P/ 1-B and C. P.W.2 Jam Khan, after hearing fire reports, reached at the site and saw the accused Muhammad Afzal, having Kalashnikov, while scaling on the wall and saw the dead bodies of deceased persons when entered in the house. P.W.3 Jam Bibi and P.W.4 Kifayatullah alleged to have witnessed the occurrence. P.W.5 Allah Bakhsh is recovery witness of blood-stained clothes of deceased persons Exh.P/5-A and Ex.P/5-B. P.W.6 Dr. Lal Muhammad, MS, Civil Hospital, Dhadhar examined the dead bodies of deceased and issued certificates Exh.P/6-A and Exh.P/6-B.
P.W.7 Abdul Hafeez, the then Judicial Magistrate, Dhadhar recorded the statements of witnesses under section 164 of the Cr.P.C. P.W.8 Abdul Sattar, H.C., is recovery witness. P.W.9 is Abdul Ghafoor, to whom the accused, after commission of the offence, requested for shelter, but was refused.
P.W.10 Muhammad Yousaf, H.C., is witness to the disclosure of appellant. P.W.11 Muhammad Arif, S.-I.
And P.W.12 All Akbar, S.-I./S.H.O. Are the Investigating Officers. Then the prosecution closed its side.
5. Thereafter, the appellant was examined under section 342, Cr.P.C., wherein he denied the prosecution accusation and claimed trial. He recorded his statement on oath as envisaged under section 340(2), Cr.P.C. And produced D.W-1 Bashir Ahmed and DW-2 Nabi Bakhsh in defence. The trial Court, after close of parties evidence, vide impugned judgment convicted and sentenced the appellant, as mentioned hereinabove, hence this appeal and murder reference.
6. At the very outset, due to peculiar circumstances of the case, learned counsel for the appellant contended that instead of seeking for acquittal of the accused, she would pray for commutation of the death sentence awarded to the appellant into that of life imprisonment on the ground that the murder of deceased persons was neither pre-planned, nor pre-meditated, rather the Offence was committed during the course of theft.
7. Mr. p Abdullah Kurd, Advocate, appearing on behalf of the State, has vehemently opposed the appeal on merit, however, conceded the prayer of learned counsel for commutation of the death sentence into that of life imprisonment.
8. We have carefully considered the respective contentions put forth by the parties' counsel in the light of evidence available on record. We find the learned counsel for the appellant is quite justified in not challenging the conviction awarded to the appellant for the episode, which culminated in unfortunate death of deceased Adam Khan and Bakhsh Ali. The connection of appellant with the offence in question has. Been established through evidence of P.W.2 Jan Khan, P.W.3 Mst. Jan Bibi and P.W.4 Kifayatullah, who fully supported the prosecution version. The ocular account furnished by the said witnesses was further supported by the medical evidence as well by extra judicial confession made by the appellant before P.W.9 Abdul Ghafoor, who had stated before the court that on the day of incident, at about 2'O Clock night time, he was called by appellant Muhammad Afzal outside the house and disclosed that due to mistake, he has committed the murder of Bakhsh Ali and Adam Khan and sought shelter. The recovery of Kalashnikov from possession of the appellant and positive report of Firearm expert further corroborate the ocular account furnished by P.W.3 Jan Bibi and P.W.4 Kifayatullah, who were present inside the house of Adam Khan at the time of occurrence. Despite lengthy cross-examination, the defence failed to create any dent in their veracity, Except a few discrepancies, which are immaterial and are not fatal. P. Ws. 3 and 4 viz Jan Bibi and Kifayatullah are inmates of the house, where the occurrence had taken place and their presence at the time of occurrence could not be doubted being natural witnesses. The ocular evidence, as mentioned above, got full support from all the other attending circumstances, therefore, the conviction awarded to the appellant on all the counts is maintained.
9. Insofar as quantum of sentence is concerned, we find that according to the prosecution own showing that on the fateful night. Of the incident, appellant entered in the House of deceased for the purpose of committing theft. The trial Court, while passing the judgment, has also made reliance on the disclosure memo. Exh.P/8- E of the appellant. It would be advantageous to reproduce the relevant portion of the disclosure made by the appellant before the police officials in the following manner: -- "On the night of incident, I entered the house of deceased Adam Khan in connection with theft while being equipped with Kalashnikov, however, Adam Khan woke up and, firstly, I tried to detain him in bathroom, but he started scuffling with me and in order to save myself, I made fire upon him, meanwhile his relative Bakhsh Ali also woke up. Bakhsh Ali, in order to catch or kill me, started proceeding towards me. I also killed him."
It is well-settled principle of law that the disclosure/confession has to be relied upon in its totality or to be excluded in its entirety. It cannot be partly relied upon and the portion, exonerating the accused, cannot be discarded. In this regard, reliance is placed to a case of Bahadur Khan v. The State reported in PLD 1995 SC 336, wherein following observations were made:-- "However, recognized well principle is that confession has to be read as a whole and not by relying only on the inculpatory part of the statement. If the entire statement is to be read as a whole and if it is to be taken as correct it creates an impression that on the payment of sale price of the mule there seems to have occurred some dispute and altercation between the parties."
10. The trial court has rightly observed that initially motive behind the incident was shrouded in mystery, but, later on, it has brought on record that during the course of theft, incident of dual murders was taken place. It appears from the facts and circumstances of the case that, while committing theft, the appellant entered the house of deceased, suddenly, which must have created a panic. The appellant, as per his disclosure Exh.P/8-E, to save himself, fired upon the deceased persons to make his escape good, which, obviously, happened at the spur of the moment. It can be safely concluded that it was not, premeditated, nor the appellant had any intention to commit the murder of deceased viz Adam Khan and Bakhsh Ali. In such view of the matter, we have given our anxious thought to the sentence awarded to the appellant and, in our considered view, the same is not proper.
11. Thus, keeping in view the circumstances of the case and the aforesaid case law, relied upon, we are convinced to hold that the murder of deceased Adam Khan and Bakhsh Ali, as discussed above, was neither pre-planed, nor premeditated, thus, in such circumstances, the death sentence awarded by the trial court is commutated to life imprisonment.
12. With the above modification in the sentence, the appeal, being meritless, is dismissed and Murder Reference is answered in negative.
' These are the reasons of our short order dated 28th July, 2011 announced in the open court.
Sentence commutated.