' ASSADULLAH KHAN CHAMKANI, J.---Through the instant criminal appeal, appellant Qasim son of Mumtaz, has challenged the validity and propriety of judgment dated 7-12-2011, passed by learned Sessions Judge, Sawabi, whereby the appellant been convicted under section 302(b) and sentenced to death penalty on two counts for committing 'Qatli-Amd' of his wife Mst. Naseem and his brother Naveed and to pay Rs,1,00,000 to the L.Rs, of both the deceased, in equal ratio, in terms of section 544-A, Cr.P.C. Or in default thereof, to undergo 6 months S.I. Further. The learned trial Court has sent Murder Reference No,19 of 2011, for confirmation of death sentence of the appellant in terms of section 374, Cr.P.C. As both, the appeal as well as Murder Reference, are outcome of the same judgment, therefore, we intend to dispose the same, through this common judgment.
2. The prosecution case is that on 15-4-2011 at 11.30 a.m. Complainant Mumtaz, in company of dead bodies of his son Naveed and daughter-in-law Mst. Naeem, reported to Jehaqzeb Khan S.I. In Civil Hospital Kalu Khan, District Swabi, that on the fateful day he along with his son Naveed deceased, Badi-u-Zaman and Liaq Zaman sons of Muhammad Zaman, his co-villagers, was on the way to home from Saw machine. At about 11.00 hours, when they reached the Hujra of one Sher Ali, his son Qasim (appellant/convict), duly armed with firearm standing there, on sighting his son other son Naveed deceased, opened fire at him with intention to commit his Qatl-i-Amd, as a result, he was hit and died on the spot; that thereafter the accused went to the house and fired at his wife Mst.
Naseem, as a consequence whereof, she was severely injured, and later on, succumbed to the injuries on the same day. The occurrence is stated to have witnessed by companions of the complainant and his house inmates. Motive behind the occurrence is stated to be an altercation inter se the accused and deceased (both brothers inter se), on Saw machine. Report of the complainant was reduced into writing in the shape of murasila, on the basis of which F.I.R No,634 dated 15-4-2011 under sections 302/324 P.P.C. Was registered.
3. On arrest of the accused and completion of investigation, challan was submitted against him before the trial Court, where was charge sheeted, to which he pleaded guilty and did not claim trial.
His plea of guilt was recorded, where after he was given show-cause notice under section 243, Cr.P.C., to which he did not respond, however, the learned trial Court, summoned the prosecution evidence; and a pauper counsel was appointed for pleading the case of the appellant. Prosecution evidence was recorded and closed, where after statement of the accused under section 342, Cr.P.C. Was recorded, wherein he denied the charge, retracted from his plea of guilt and professed innocence. On conclusion of trial, the learned trial Court vide impugned judgment convicted and sentenced him, as referred to above.
4. Learned counsel for the appellant mainly disputed the punishment of death awarded to the appellant by the trial Court and contended that it was a case of punishment covered under section 308, P.P.C., as the appellant having daughter Mah Noor from deceased Mst. Naseem, who being Wali is direct descendant of the appellant within the meaning 'of section 306, P.P.C., i,e, Qatl-i-amd not liable to qisas, while deceased Naveed was his brother, who was unmarried and complainant being his father/wali has compounded his murder with the appellant, in the circumstances, the appellant should have been sentenced within the meaning of section 308, P.P.C. Which provides two types of punishments in Qatli-Amd not liable to qisas. He argued that under section 308, P.P.C.
The first punishment is payment of Diyat, however, subsection (2) of section 308, P.P.C. Provides that the Court having regard to the facts and circumstances of the case, in addition to the punishment of Diyat, may punish the offender with imprisonment of either description for a term which may extend to twenty five years as Ta'zir. He went on to say that the learned trial Court has wrongly awarded the penalty of death which is not sustainable. He further contended that the appellant has a minor daughter who has already lost his mother and if the death sentence of the appellant is maintained he would lose his father too.
5. Conversely, learned counsel appearing on behalf of L.Rs, of deceased Mst. Naseem contended that appellant has been charged by his own father for committing murders of two deceased; that though appellant at the time of framing charge, pleaded guilty, but later on, in his statement under section 342, Cr.P.C. He has denied the prosecution allegations and confessed innocence, so in the circumstances, the learned trial Court was justified by awarding him punishment under Ta'azir because of lack of proof of Qatl-eAmd liable to Qisas under section 304, P.P.C. He contended that the prosecution has proved the guilt of the appellant through cogent and confidence inspiring ocular evidence corroborated by circumstantial and medical evidence, as such, has rightly been convicted and sentenced; that there no infirmity or illegality in the impugned judgment, which may warrant interference by this Court. He sought dismissal of the appeal.
6. Learned A.A.G. While controverting the argument of learned counsel for the appellant contended that it is not a case of punishment under section 308 P.P.C., as the appellant has retracted from his confession/plea of guilt in his statement under section 342, Cr.P.C. Wherein he has totally denied the prosecution charge, therefore, he has rightly been convicted by the trial Court under section 302(b), P.P.C. He sought dismissal of the appeal.
7. In this incident the appellant has done to death his own real brother and wife on the pretext of illicit relations of both the deceased with each other,-as alleged by the accused. Complainant of the case is none else, but an unfortunate father. It appears from the record that after submission of challan before the trial Court, against the appellant, he was summoned and after complying with the mandatory provisions of section 265-C, Cr.P.C. On 4-5-2011, he was charged sheeted on 17-5- 2011 in terms of section 265-E, Cr.P.C. He did not deny the charge rather replying to a question "Do you want to plead guilty or claim trial? he responded in the following words:- "Yes I plead guilty. I neither wish to engage a counsel nor to defend myself. I admit my guilt knowing all the consequences as to punishment of the offence".
' The learned trial Court after framing charge on 17-5-2011 and recording the plea of guilt of the appellant/accused passed the following order:- "Present the accused Qasim Khan produced in custody and PP for State. Danyal Khan Advocate has submitted Wakalatnama as private complainant counsel and has left.
' Today it was fixed for framing of charge which was framed. From the very start the accused plead guilty and admitted his guilt of killing his brother Naveed and wife Mst. Naseem by firing at them effectively on the reported day, date and time. He was given chance again and again to think over it and engage a counsel. He was offered adjournment to consult a lawyer but he refused to avail any. The accused was repeatedly made conscious of the consequences of his plea of guilt but he insisted every time the plea of guilt. The accused was warned of the punishment which the offence entails, but he stood firm to his admission of killing both the deceased by firing at them.
' After framing of charge and before obtaining his thumb impression, the accused was given a further chance to retire and he was offered fresh water which he took. After a considerable time of half an hour he was given warned of the consequences but the accused insisted that he admit the guilt. Neither he wished to engage counsel to defend himself nor he accepted the offer for free service of a lawyer to be arranged to defend him.
' The charge was read over to the accused word by word in Pashto language along with his plea of guilt as recorded and he while admitting the same thumb impressed it voluntarily, whole heartedly. Show-cause notice is being issued to the accused and proceedings are adjourned 23- 5-2011 for reply/further proceedings".
' The bare reading of section 265-E, Cr.P.C. Provides that charge shall be read and explained to the accused, and he shall be asked whether he is guilty or has any defence to make. Subsection (2) of section 265-E, Cr.P.C. Postulates that if the accused pleads guilty, the Court shall record the plea, and may in its discretion convict him thereon. In the section ibid, word "shall" has been used for recording the plea of guilt of the accused, meaning thereby the if the accused pleads guilty, his plea of guilt must be recorded. While word "may" in its discretion clearly connotes about the discretion of the Court. The Court may convict him. So by word may, the trial Court can record the evidence even the accused plead guilty. Though despite there being no bar the acceptance of the plea of guilt of accused, conviction should not normally be based on the plea of guilt in cases involving punishment of death, or imprisonment for life. In such circumstances, the learned trial Court should record evidence itself and judge the case in light of the evidence so recorded, which course, has rightly been adopted by the trial Court in the instant case. During his statement under section 342 Cr.P.C. The accused has totally denied the prosecution allegations, retracted from his confession/ plea of guilt and professed his innocence. In the circumstances, we are confronted with two aspects of the case, i,e, the plea of guilt of the accused at the time of framing of charge, and his later on, retraction and professing innocence in his statement under section 342, Cr.P.C. It is settled principle of law that when there are two aspects of the case, the one favourable to the accused, shall be considered. Keeping in view the peculiar facts and circumstances of the case, the retracted confession cannot be made the sole base of conviction. True that retracted confession will be considered and conviction can be recorded over the same, provided the same is corroborated by other material pieces of evidence, therefore, it would be in the interest of justice to take the case and consider the guilt of the accused/appellant on the basis of prosecution evidence along with his retracted confession.
8. Mumtaz Khan complainant has furnished the ocular account of the incident. He appeared as P.W.9. In his examination in chief he reiterated his early version set forth by him in his initial report.
Mst. Roshan, mother of deceased Mst. Naseem Bibi, the other eye-witness of the murder episode of deceased Mst. Naseem has been examined as P.W.12. She deposed that her daughter was married to accused Qasim and from their wedlock, a daughter, named, Mah Noor aged 4 years was born; that on the day of occurrence she was present in the house of her deceased daughter. At the relevant time, accused Qasim came armed with Kalashnikov and opened fire at his wife Mst.
Naseem, resultantly, she was hit and severely injured, who was shifted to hospital, where she succumbed to the injuries. Both the eye-witnesses of the incidents have been subjected to lengthy cross-examination but nothing beneficial could be extracted from their mouths by the defence.
They remained stuck on their earlier stance and successfully passed the test of cross-examination.
9. The ocular account of the aforesaid P.Ws. Get corroboration from the circumstantial evidence collected by Said Jamil Khan SI (P.W.10), who conducted investigation in the case. He deposed that he prepared site plan Exh.PB at the instance of complainant and Mst. Roshana. During spot inspection he took into possession bloodstained earth from the place of deceased Naveed, vide memo Exh.P.W.2/1 and from the place of deceased Mst. Naseem, vide memo Exh.P.W.2/2. He also took into possession the last worn bloodstained garments of both the deceased vide recovery memo Exh.P. W .3/1 . Vide recovery memo Exh.P.W.2/3 he took into possession six crime empties of 7.62 bore, giving smell of fresh discharge from the place of accused near the Hujra of Sher Ali.
Similarly, where the lady deceased was done to death, the I.O. Recovered four crime empties of 7.62 bore from the residential room of the accused/appellant. On arrest of the accused, he pointed out various places of occurrence, as a result, the I.O. Prepared pointation memo Exh.P.W.10/1. At the time of arrest of the accused, Kalashnikov was recovered from his possession, for which separate FIR under section 13 of the Arms Ordinance, has been registered. The accused/appellant had been produced before the Court of learned Judicial Magistrate for recording his confessional statement, but he refused, therefore, he was sent to judicial lockup. He sent the bloodstained articles to the FSL for Serologist opinion, and the recovered Kalashnikov along with crime empties, report whereof are Exh.PK and PK/1. All the P.Ws. Who stood marginal witnesses to the recovery proceedings have been examined and their testimony fully corroborates the statement of the Investigating Officer. The pieces of circumstantial evidence in the shape of recovery of blood from the places of the deceased and crime empties from the two crime venues, coupled with FSL reports, corroborate the ocular testimony of the P.Ws. And retracted confession of the accused, and prove that the two deceased had been done to death by the appellant with firearm, on the crime venues, as alleged by the eye-witnesses.
10. Dr. Muhammad Ali, who conducted postmortem on the dead body of deceased Naveed and Lady Dr.Farkhanda, who conducted autopsy on the dead body of deceased Mst. Naseem have been examined as P.W.4 and P.W.14, respectively. Both the Medical Officers have given detail of injuries found on the person of both the deceased and their statements prove murder of both the deceased to be the result of firearm, which further supplement the prosecution version.
11. As stated earlier, Mumtaz complainant of this case is no body else, but an unfortunate father, thus we see no reason that a father will charge his real son for murder of his other son, falsely.
Similarly, Mst. Roshana, who on one hand, is the mother of Mst.' Naseem deceased and mother-in- law of the appellant/accused, would never charge her own son-in-law falsely without any motive for murder of her daughter. The prosecution has successfully proved the guilt of the appellant through cogent and confidence inspiring evidence, ocular as well as circumstantial evidence coupled with medical evidence.
12. Now the moot question for determination before us would the punishment and its quantum that whether the trial Court has rightly awarded the appellant the penalty of death on two counts.
Section 53 (Chapter Ill) of Pakistan Penal Code, various punishments to be awarded to the offenders, if found guilty, according to the facts and circumstances of each case. These punishments are, Qisas; Diyat; Arsh, Daman, Ta'zir, death, imprisonment for life; imprisonment which is of two descriptions namely; (i) Rigorous i,e, with hard labour; (ii) simple; forfeiture of property, and fine. The first punishment provided in the section ibid, is Qisas. Before adverting to section 304 P.P.C., we would like to explain and define Qisas. The word "Qisas has been defined as punishment by causing similar hurt at the same part of body of the convict as he has caused to the victim or causing his death if he has committed Qatl-i-Amd in exercise of the right of the victim or wali. At this juncture we would refer to section 304, P.P.C., i,e, proof of Qatl-i-Amd liable to qisas etc., to see whether the case of the appellant is proved under section 304, P.P.C., and if proved, then what should be the sentence whether qisas or some other sentence. Section 304, P.P.C. Is reproduced below for convenience:-- "304. Proof of Qatl-i-Amd liable to qisas, etc. (1). Proof of Qatl-i-Amd liable to qisas shall be in any of the following forms, namely:
(a) The accused makes before a Court competent to try the offence a voluntary and true confession of the commission of the offence; or.
(b) By the evidence as provided in Article 17 of the Qanun-e-Shahadat, 1984 (P.O. No,10 of 1984).
' The provisions of subsection (1) shall, mutatis mutandis, apply to a hurt liable to qisas.
13. The threadbare reading of the section ibid would make it clear that the case of the appellant does not fall under clause (a) of section 304, P.P.C. As he has retracted from his confession/plea of guilt recorded at the time of framing of charge. Though he has stated that he voluntarily confess his guilt but the same cannot be taken into consideration or to be relied upon, as had he any intention to confess his guilt, he would not refuse the same after his arrest when he was produced before the learned Judicial Magistrate. Moreso, as stated earlier, the accused in his statement under section 342, Cr.P.C. Has retracted from confession and has totally denied the prosecution charge. Thus, the argument of the learned counsel for the appellant, that it is a case of punishment covered by section 308, P.P.C. Is misconceived. In the circumstances, the learned trial Court was right to award punishment under Ta'azir. As regard the quantum of punishment, Mumtaz complainant/father of deceased Naveed, present in the Court stated at the bar that he has compounded the murder of his son and has pardoned the appellant/ accused because he had three sons, out of them, one was done to death some where in Quetta, the other i,e, Naveed has been shot dead by the appellant, while the third and last one i,e, the appellant has been awarded death penalty by the trial court, which if maintained by this Court and executed, there would be none to support him in his old age. He also apprised us that the appellant has a minor daughter Mah Noor, who has already lost his mother and in case of maintaining the sentence of death of the appellant, she would be deprived of shadow of his father. Admittedly, the question of sentence is always determined on the basis of gravity of offence. Question of sentence demands utmost care and caution on the part of the Court dealing with life and liberty of the people. Sentence must be weighed in golden scales and must be properly balanced because the basic object of sentence is to create a determent in the society and while awarding sentence all circumstances surrounding the guilt must be carefully borne in mind. In determining the sentence overriding consideration must be that it should be fair and produce correct results in the given case. Mumtaz being father of deceased Naveed has compounded the murder of his son with the appellant by extending him pardon, however, the L.Rs, of lady deceased Mst. Naseem have not effected any compromise.
Taking into consideration the fact that the appellant has a minor daughter, who has already lost her mother and in case of maintaining the death sentence, she would also lose her father, as mitigating circumstance, we hereby maintain the conviction of the appellant under section 302(b), P.P.C., on two counts, however, modify/convert/reduce his sentence from death to "imprisonment for life and to pay Rs,1,00,000 as compensation within the' meaning of section 544-A, Cr.P.C. to L.Rs, of each deceased or in default thereof to undergo 06 months S.I. Further. The sentences shall run concurrently. Benefit of section 382-B, Cr.P.C. Is extended to him. With the above modification in the sentence of the appellant, this appeal is disposed of accordingly. Resultantly, the Murder Reference No,09/2011, sent by the trial Court is answered in negative. These are the reasons of our short order of even date.