1. Qazi Muhammad Amin Ahmed, J.--Iftikhar Ali, 25, hereinafter referred to as the deceased, was found lying dead, in a pool of blood in a field adjacent to his house situated within the area of Shinka on 2-3-2011, at a distance of 6-k.m. From Police Station Hazru District Attock; dead body was spotted by his father Banaras Khan (PW-12) who reported the incident through statement (Ex.PF) recorded by Muhammad Nawaz, SI (PW-13) 3:00 a.m. At the spot. According to the complainant, during the fateful night, he was asleep inside his home with his family members when at about midnight time his wife informed him that deceased was not on his cot; as during the preceding evening, the deceased was in his Bhaitak along with his collateral Naeem and one Iqbal, he went to see him there, however, the Bhaitak was locked and when he returned near the gate, he saw the dead body. No one is nominated as accused in the crime report nor any motive is cited therefor.
2. Autopsy was conducted at 5:00 a.m. On 2.3.2011 by Dr. Shafique-ur-Rehman (PW-10), who noted eight firearm wounds, of them four are entry wounds, on the back of right side of neck, left lower abdomen, above umbilicus and right side of back of upper chest with exits thereof; injuries on the lower abdomen and right side of the back are with multiple apertures. Cause of death is opined as shock due to loss of blood; injuries on the abdomen and umbilicus accompanied by injury on the back of upper chest were sufficient to cause death in the ordinary course of nature with inter se duration between death and injuries one hour and post-mortem about six hours. During spot inspection, the Investigation Officer collected blood and six casings of 30-caliber secured ride inventories. On 9.3.2011, the appellant and Ahsan, co-accused were arrested followed by Muhammad Naeem on 11-3-2011; the appellant, pursuant to a disclosure, led to the recovery of pistol (P-13) on 13-3-2011. Co-accused Ahsan also got recovered pistol (P-15). The casings were dispatched through Zahid Ali/C (PW-5) on 8-3-2011 followed by weapons on 16.3.2011; as per Forensic Science Laboratory report (Ex.PU) both the pistols were found wedded with the casings.
3. Upon completion of investigation, the appellant accompanied by his co-accused was sent to face trial before a learned Addl. Sessions Judge at Attock when on 14.4.2011 he pleaded guilty to the charge, however, his co-accused contested the indictment; he was afforded an opportunity to reconsider his stance, however, he remained adamant in his position; his statement in reply to show-cause notice is reproduced below: "I myself alone has committed qatal-e-amd of Iftikhar Ali while firing upon him with .30-bore pistol.
4. Five days prior from occurrence I was talking with sister of deceased. He saw me. Thereafter he called me telephonically at 9:30 PM on the night of occurrence I came to deceased. He inquired from me that what I was talking with his sister. I replied that I was not talking any wrong with her nor I had any wrong relations with her. The deceased captured my collar and started beating me. I thought that he would do away with my life so by causing fire with my .30-bore pistol I committed his qatal-e-amd. None else was present with me. My co-accused are innocent. I cannot sleep from last ten days and by the force of my subconscious I have confessed before Court without any duress or coercion".
5. ' The above position, notwithstanding, in view of implication of three accused in report under Section 173 of the Code of Criminal Procedure, 1898, the learned trial Judge proceeded to summon the prosecution evidence, pursuant whereto, ten witnesses were produced, besides reliance upon forensic reports; of them Muhammad Khurshid (PW-9) is witness of last seen; his case is that on the night of occurrence at about 10:00 p.m. He was attracted by gun reports and saw three persons identified by him as Muhammad Ahsan, Muhammad Iqbal and Jabbar accused entering the house of Muhammad Ahsan; he expressed a strong belief that they committed murder of Iftikhar Ali deceased; next in line is Banaras (PW-12), who after reiterating contents of complaint Ex.PF improved upon his previous position and claimed to have seen Jabbar, Ahsan and Iqbal sitting in front of his house; he also introduced a motive for the first time not pointed on the appellant; other witnesses deposed about recovery of weapons. The appellant confronted prosecution evidence with the following plea: "I have committed the murder of deceased Iftikhar Ali and I have got recorded my confessional, statement before Court on 14.4.2011 and being accused of murder of Iftikhar Ali deceased witnesses have deposed against me to strengthen their version even against my co- accused."
6. ' He, however, disputed disclosure and recovery of pistol (P-13) pursuant thereto. The learned trial Judge, on conclusion of trial, vide judgment dated 14-9-20.11 proceeded to acquit Muhammad Ahsan and Muhammad Iqbal, co-accused, however, convicted the appellant under Section 302(a) of the Pakistan Penal Code, 1860 and sentenced him to death as Qisas; he was also directed to pay compensation in the sum of Rs, 200,000/- or to undergo six months SI in the event of default, vires whereof; are being challenged through Crl. Appeal No, 369 of 2011; the State seeks confirmation of death penalty vide Murder Reference No, 68 of 2011; these are being decided together.
2. Learned counsel for the appellant contends that notwithstanding plea taken by the appellant when confronted to indictment, it remains primary responsibility of the prosecution to establish charge against him beyond reasonable doubt and that prosecution's failure qua identically placed co-accused casts away the case against the appellant as well; that forensic report Ex.PU is antithetical to the position taken by the appellant as casings secured from the spot were found wedded with two weapons, one allegedly recovered at the instance of the appellant and other by Muhammad Ahsan. In order to substantiate his argument, the learned counsel has placed reliance upon the case of Azhar Iqbal vs. The State (2013 SCM R 383) wherein a conviction based upon position taken by an accused under Section 342 of the Code of Criminal Procedure was set aside as prosecution evidence was found insufficient to sustain the charge. Contrarily, the learned Law Officer has defended the impugned judgment and prayed for confirmation of death penalty on the ground that in the wake of plea taken by the appellant at the time of his indictment, he was rightly convicted and sentenced under Section 302(a) of the Code ibid and that in view of provisions of Section 412 of the Code of Criminal Procedure, 1898 no exception can be taken to the penalty inflicted upon him.
3. Heard. Record perused.
7. ' The appellant was arrested on 9-3-2011; on 14-4-2011, he was brought before the Court from judicial lock up; interim order of even date reflects that he was represented by his counsel Raja Aftab Ahmad Advocate; he was under no duress or compulsion to plead guilty by making his breast clean; he was afforded opportunity to reflect upon his decision; the learned trial Judge unambiguously shared with him the consequences of the course he opted to follow, in the presence of his counsel; his disclosure was read over to him and he affixed his signature as well as thumb impression in token of its correctness; the entire exercise was undertaken under the solemnity of judicial process; despite that the learned Judge showed no haste in recording conviction and instead sent for prosecution witnesses. On conclusion of trial, the appellant was confronted with the prosecution evidence on 28-7-2011; his counsel Raja Aftab Ahmad Advocate was in attendance on the said date as well; he once again admitted to have committed the murder of the deceased and relied upon his statement recorded way back on 14-4-2011. However, he denied the recovery of weapon attributed to him. This left the learned trial Judge with no option but to proceed to convict the appellant under Section 302(a) of the Pakistan Penal Code, 1860 while acquitting the co-accused as position taken by the appellant constituted proof within the contemplation of Section 304 (1)(a) of the Pakistan Penal Code, 1860; the only punishment provided under Section 302(a) of the Code ibid is death alone which can only be withheld in situations enumerated in Sections 306 and 307 of the Code ibid. Reliance is placed on the case of Zahid Rehman vs. The State (PLD 2015 Supreme Court 77); relevant portion whereof is advantageously reproduced: "The provisions of Section 299, PPC clearly show that in the context of a qati-i-amd (intentional murder) Qisas and Ta'zir are simply two different kinds of punishments for such offence and that they are different from conviction for the said offence. As is evident from the provisions of Section 304, PPC a conviction for an intentional murder can entail the punishment of Qisas only if the accused person makes before a Court competent to try the offence a voluntary and true confession of commission of the offence or the requisite number of witnesses are produced by the prosecution before the trial Court and their competence to testify is established through Tazkiya- tul-shahood (scrutiny of the witnesses before trial of the accused person) as required by Article 17 of the Qanun-e-Shahadat Order, 1984 and this was also so declared by this Court in the case of Abdus Salam v. The State (2000 SCM R 338). The cases of intentional murder other than those fulfilling the requirements of Section 304, PPC are cases entailing the punishment of Ta'zir, as provided in and declared by Section 302(b), PPC, and the provisions* relating to the punishment of Qisas are to have no application or relevance to the same. The relevant statutory provisions reproduced above make it abundantly clear to me that in all cases of conviction for the offence of intentional murder the question as to whether the convict is to be punished with Qisas or with Ta'zir is dependant upon the fact whether the conviction is brought about on the basis of proof in either of the forms mentioned in Section 304, PPC or not. If the conviction is based upon proof as required by Section 304, PPC then the sentencing regime applicable to such convict is to be that of Qisas but if the conviction is based upon proof other than that required by Section 304, PPC, then the sentencing regime relevant to such convict is to be that of Ta'zir. It is only after determining that the sentencing regime of Qisas is applicable to the case of a convict that a further consideration may become relevant as to whether such convict is to be punished with Qisas under the general provisions of Section 302(a), PPC or his case attracts the exceptions to Section 302(a) in the shape of Sections 306 or 307, PPC in which cases punishments different from that under Section 302(a), PPC are provided. I have entertained no manner of doubt that the general provision regarding an intentional murder being punishable through Qisas is Section 302(a), PPC carrying only the punishment of death but Section 302, PPC is subject to the other relevant provisions of Chapter XVI of the Pakistan Penal Code which provide punishments different from that of death for certain special classes of murderers mentioned therein despite their cases otherwise attracting a punishment of Qisas. Sections 306, 307 and 308, PPC belong to such category of cases which cases are exceptions to the general provisions of Section 302(a), PPC but nonetheless all such cases are to be initially proved as cases entailing a punishment of Qisas which punishment is then to be withheld because the offender belongs to a special class for which an exception is created in the matter of his punishment. A plain reading of provisions of Sections 306 and 307, PPC shows, and shows quite unmistakably, that the cases covered by those provisions are primarily cases of Qisas but because of certain considerations the punishment of Qisas is not liable or enforceable in those cases. It goes without saying that before considering the question of his punishment in such a case a convict must have incurred the liability or enforceability of the punishment of Qisas against him which punishment is to be withheld from him in view of the considerations mentioned in Sections 306 and 307, PPC and that is why some alternate punishments for such offenders are provided for in Section 308, PPC. In other words a conviction for an offence entailing the punishment of Qisas must precede a punishment under Section 308, PPC and such conviction can only be recorded if proof in either of the forms mentioned in Section 304, PPC is available before the trial Court and not otherwise. The provisions of Section 311, PPC provide another example in this context showing how in a case otherwise entailing a punishment of Qisas the offender may be handed down a punishment of Ta'zir and the said section also falls in Chapter XVI of the Pakistan Penal Code specifying an exception to the general provisions of Section 302(a), PPC. It, thus, ought not to require much straining of mind to appreciate that the provisions of and the punishments provided in Section 308, PPC are relevant only to cases of Qisas and that they have no relevance to cases of Ta'zir as in the latter category of cases a totally different legal regime of proofs and punishments is applicable."
8. As mentioned above, the appellant remained adamant, unreservedly to the position taken by him on the day one till the conclusion of trial under the shadow of his counsel and as his case did not fall in any of the categories provided under Sections 306, 307 and 308, PPC, the learned trial Judge rightly convicted and sentenced him under Section 302(a) of the Pakistan Penal Code, 1860 wherein only penalty provided is death. Insofar as argument that forensic report Ex.PU is incompatible with the plea taken by the appellant is concerned, it does not in itself nullify the position taken by the appellant right from 14.4.2011 till 28-7-2011. The judgment was announced on 14-9-2011 and even during this interregnum no step was taken by him to retract from the admission made before the Court; there is only an oblique reference in the submissions made by the learned counsel before the learned trial Court suggesting appellant's plea as being involuntary, it was rather late in the day and as such hardly sufficient to demolish prosecution case, firmly structured on the plea taken and admission in support thereof under Section 342 of the Code of Criminal Procedure. Statement of an accused recorded under Section 342, Cr.P.C. Has to be accepted or rejected as a whole; his conviction is based upon plea of guilt under Section 265-E of the Code of Criminal Procedure, 1898 which constituted proof within the contemplation of Section 304(1)(A) of the Pakistan Penal Code, 1860 and in this backdrop, position taken by him, on the conclusion of trial is in consonance therewith. It has been held in the case of Nasir Mehmood & another u. The State (2015 SCM R 423) "the statement of an accused recorded under Section 342, Cr.P. C. Is more reliable than compared to the statement recorded under Section 164, Cr.P.C. " The deceased received four fire shots for merely suggesting to the appellant that he had no business to do with his sister. Case law cited by the learned counsel for the appellant is vastly distinguishable with no relevance to the issue in hand. We have not been able to find out a single circumstance which may even remotely justify to discard plea unflinchingly taken by the appellant throughout the trial. Consequently, Crl.
9. Appeal No, 369 of 2011 being devoid of merits is dismissed and death penalty awarded to the appellant is confirmed. Murder Reference is answered in the Affirmative.