KHALIL-UR-REHMAN KHAN, J.-Nazak Hussain aged 30 years, Ajab Khan aged 35 years, and Sarwar Khan aged 45 years, appellants, the three real brothers were tried under section 302/34, P. P. C. For having caused the murder of Hameed alias Meedo, by the Additional Sessions Judge, Rawalpindi, and vide judgment dated 23-5-1979 he convicted and sentenced all the three appellants to death and to fine of Rs. 3,000 each; or, in default, to undergo one year's R. I. Each.
2. The prosecution version of the occurrence as per report Exh. P. E. Lodged on 8-3-1977 at 1-20 a.m.
By Ali Akbar, father of the deceased, at the Police Post Naseerabad, located at a distance of 3 miles from the place of occurrence was that on 7-3-1977 at 6-00 p.m. The complainant Ali Akbar was present in his house along with Meharban son of Sher Jang (not produced), Rafiq P. W., Hameed alias Meedo deceased and Ali Aksar P. W. When all the three appellants Nazak Hussain, Ajab Khan and Sarwar Khan sons of Madad Khan came there and called the deceased. On their call, the deceased Hameed came out of the house and accompanied them to--wards the west of his house. That they suspected some foul play and as such followed them. As they reached near the house of Fateh Muhammad son of Jan Muhammad, they heard some noise. They went near the place of occurrence and saw that Hameed had fallen on the ground and all the three appellants who were armed with knives were inflicting injuries upon him. On seeing the complainant and others, the appellants ran away towards their house.
3. The motive of the crime, as narrated in the F. I. R., was that the appellants murdered the deceased as they suspected that he had got illicit relations with their sister Mst. Bibi.
After the incident, Hameed was taken to the Civil Hospital, in an injured condition, where he was examined by Dr. Muhammad Aslam Arshad P. W. And after about three hours of the incident the injured died ahd then the complainant went to the Police Post, Naseerabad and lodged the report Exh. P. E., which was forwarded to the Police Station Cantonment where the formal F.
1. R. Exh. P. E./I was recorded. After registration of the case, Amir Afzal S. I. P. W. Inspected the place of occurrence on 8-3-1977 and secured blood-stained earth vide Memo Exh. P. G. From the spot. He also prepared the usual statements and took into possession the last worn clothes of the deceased. On 16-3-1977, Muhammad Akram Draftsman P. W. 4 visited the place of occurrence and prepared the site plan Exhs. P. D. And P. D./I. On 23-3-1977, Nazak Hussain appellant was arrested and, while in police custody, he led the police party to the recovery of blood-stained knife P. 4 which was taken into possession vide memo Exh. P. F. The appellants Sarwar Khan and Ajab Khan were arrested on 4-6- 1977 as earlier they were on pre-arrest bail. The origin of the stains found on knife P. 4 could not be traced as the stains by then found to had disintegrated vide report of the Serologist Exh. P. M.
4. The prosecution at trial relied upon the testimony of Ali Akbar P. W. 7, Muhammad Rafiq P. W. 8 and Ali Aksar P. W. 10 who are father, brother and uncle of the deceased respectively, medical evidence contained in the deposition of Dr. Muhammad Aslam Arshad P. W. 1 who had examined the deceased in injured condition as well as had performed post-mortem examination on the dead body, and the motive evidence as well as the recovery of knife from Nazar Hussain appellant.
'
5. As against this, the appellants' case was that the deceased was a bad character and drunkard and used to molest village girls, and that be was attacked by some one else during night hours but as none had seen the occurrence, they had been implicated falsely on account of suspicion. ,. They also produced copies of F.
1. R. No, 696, Exh.. D. D., F. I. R. No. 16 Exh. D. E., and F.
1. R. No. 17 Exh. D. F.
Registered against the deceased in order to show that the deceased was a bad character and had various enemies. They also produced Muhammad Ashraf, A. S. I., Muharrir P. S. Cantonment, Rawalpindi, who proved the registration of cases against the deceased, Manzoor Ahmad D. W. 2 Senior Naib-Court; office of the D. S. P. Rawalpindi, who proved that challan under section 13 of the Arms Ordi--nance against the deceased was sent to the Court for trial. Abdul Ghafoor Khan D. S. P., appeared as D. W. 3 and deposed that he had partly investigated the case and in view of statements recorded by him, he declared Sarwar and Ajab appellants as innocent. It is appropriate to note here that Ali Akbar P. W., in his cross-examination, accepted the suggestion that a case under Arms Ordinance was planted at the instance of the appellants against the deceased.
6. In appeal, the learned counsel for the appellants raised the following contentions :-
(i) The murder was not seen by any of tile three eye-witnesses. It was in fact an unseen occurrence, it took place when it was dark and none of the eye-witnesses saw the real culprits.
(ii) The eye-witnesses are close relatives of the deceased as one is father, the other is the brother, and the third, is the uncle of the deceased and the testimony of these interested witnesses cannot be acted upon unless it stands corroborated in material respects but no corrobora--tive evidence is available on record. The prosecution could not even produce independent witnesses of recovery of knife as Ali Akbar P. W. 7, father, and Muhammad Rafiq P. W. 8, a brother, were made to depose about the planted recovery as well.
(iii) The ocular testimony of the highly interested witnesses also stands contradicted by the medical evidence.
(iv) That the possibility that some other persons who were inimical, killed the deceased cannot be ruled out as defence had established on record that the deceased was a bad character and was involved in a number of criminal cases. Moreover, the persecution version that on call given by the three appellants, the deceased came out of the house and accompanied the appellants at dark hours cannot be believed in view of admitted strained relations.
(v) That the Investigating Officer had not investigated the case impartially as is apparent from the fact that in reply to a question the Investigating Officer answered that the deceased was not required in any criminal case and no case had been registered against him, though this very Police Officer himself registered the two cases against the deceased. Reference was made to the evidence of D. W. 1 and D. W. 2.
7. Learned counsel for the State, on the other hand, argued that the prosecution has proved the case against the appellants beyond any shadow of doubt and that in any case there is, on record, a clear admission of guilt by Nazak Hussain appellant. He referred us to the statement made by Nazak Hussain while closing the defence evidence. As much stress has been laid on this statement, the same is reproduced hereunder :- "I close my defence evidence and wish to add that the case has not been investigated impartially by the Police. In the alternative, I claim right of defence of my sister and grave and sudden provocation, which has been alleged by the prosecution."
8. We have gone through the entire record carefully and have also examined critically the respective submissions of the parties.
9. The fact that the deceased was involved in criminal cases registered under Arms Ordinance stands established as well as admitted on record. Ali Akbar P. W. 7, father of the deceased, further conceded that these cases were registered at the instance of not only Sarwar Khan appellant but the other two appellants as well. The estrangement and animosity prevailing between the parties is thus apparent from record. Abdul Ghafoor D. W. 3 D. S. P. Also stated that, according to his investigation, Ajab Khan and Sarwar Khan appellants were found to be inno--cent. It may be added that Court has to form its own independent opinion as to the guilt or innocence of the accused , on the basis of the evidence produced at trial and any opinion formed by the-Police is of no consequence in a case where prosecution through satisfactory evidence has succeeded in establishing its case. Hence the question which requires determination in this case is whether the three eye-witnesses who are admittedly near relations of the deceased can be relied upon for basing conviction on a capital charge and whether their testimony inspires confidence and stands supported by any material or circumstance established on record. Examining the ocular account from this point of view, we find that in the F. I. R. Injuries were alleged to have been caused to the deceased near the house of Fateh Muhammad after calling out the deceased from the house of complainant and taking him towards South in the street but at trial the incident of causing injuries to the deceased was stated to have occurred in the courtyard of the house of Fateh Muhammad which was then in occupation of Ghulam Hussain. Admittedly the family of said Ghulam Hussain consisted of 3 elder members and some children up to the age of 8/9 years, yet none of them was produced in Court. Again, these witnesses claim that 2 injuries were caused on the chest of the deceased whereas only one injury was found by the Doctor (Muhammad Aslam Arshad P. W. 1) on the chest. This is the contradiction on which the learned counsel for the appellants strongly relied to contend that the eye-witnesses had in fact not seen the occurrence. Moreover, in view of the admitted estrangement of relations, it is unbelievable that the deceased would accompany the appellants on their call at dark hours from the house where the deceased and the eye-witnesses were present. The eye--witnesses also made improvements in their statements at trial. These improvements coupled with the circumstances noted above are sufficient to cast a real doubt, in our mind, as to the guilt of the appellants. The testimony of the three eye-witnesses does not inspire confidence as in material respects the ocular account of the eye-witnesses stands contradicted by the medical evidence. So, it will not be safe to rely upon the testimony of the highly interested and inimical witnesses. However, we have yet to examine the statement of Nazak Hussain appellant made by him while closing the defence evidence.
10. Learned State counsel relied heavily on this statement and contended that in this statement Nazak Hussain appellant at-least confessed his involve--ment in the murder of deceased and as such his conviction and sentence merits to be upheld on this score alone. On the other hand, Mr. R.
A. Jeremey and Raja Muhammad Anwar, learned Advocates for the appellants contended that this statement, assuming the same amounts to confession, should be ruled out of consideration as Nazak Hussain, after hearing the statement of D. S. P. Exonerating his two brothers, offered himself as sacrificial goat so as to secure the skin of his elder brothers. According to them, a statement made under such a state of mind cannot be acted upon for basing conviction.
11. For the purpose of determining the legal effect of the statement under consideration, we have first to determine the legal position of the aforesaid statement. It may be noted that a statement closing defence evidence can be and is usually made by a counsel representing accused. Yet the appellant chose to make the statement under consideration. This statement was made while closing the defence evidence when the statement under section 342, Cr. P. C. Had already been recorded by the trial Court. This statement having been made before the trial Court itself was neither a judicial confession recorded under section 164, Cr. P. C. By a Magistrate nor an extra- judicial confession made before any other person which is later proved at trial as an admissible and relevant fact. This statement was given before the trial Court itself at the close of the defence evidence in acknowledgement of the fact that fair opportunity of defence was granted so as to satisfy the principle of law of evidence that the accused is to be granted fair opportunity to lead defence, if any. In any case, wherever there is a confession proved on record or there is a .
Statement made under section 342, Cr. P. C. Or is any other statement made by an accused before the trill Court, at any stage of the trial, the accused is at liberty to make any statement at any stage of the trial, such statement has not only to be considered by the trial Court in conjunction with the other evidence on record and it has also to give effect to the statement, whatever legal con-- sequence may be flowing therefrom. Any statement whether technically called a confession, a plea of guilty contained in statement under section 342, Cr. P. C: or in any .Other statement made at trial has to be a voluntary statement. Statement under section 342, Cr. P. C. Is admissible in evidence against the accused as subsection (3) of section 342 itself prescribes that such statements may be taken into consideration in such enquiry or trial. There is also authority for the proposition that the inculpatory part of such statements should be treated as confession but while there may be no difference between the confession and an express admission of guilt by the accused in his statement under section 342, Cr. P. C. The position may not be the same when the accused pleads his innocence. See Muhammad Tufail v. The Slate (1), and Varand v. Emperor (2).
In any case, the confession, wherever it may be found whether in a statement made outside the Court which is later proved at trial or a statement made before the Court under section 342, Cr. P.
C. Or otherwise, is a statement in terms admitting the offence or at any rate substantially all the facts which constitute an offence. It is such a statement which. Can form sufficient basis for recording conviction. It was pointed out in Narayana Sawami's case (3), by Lord Atkin that "no statement that contains exculpatory matter can amount to confession if the exculpatory statement is of some fact which if true would negate the offence alleged to be confessed". It was further observed that "an admission of gravely incriminatory fact, even conclusively incriminating fact is not of itself a confession, e.g. An admis--sion that the accused is the owner and was in recent possession of the knife or revolver which caused a death with no explanation of any other man's possession".
(1) 1972 P Cr. L J 166(2) AIR 1944 Sind 133
(3) AIR 1939 P C 47 Some High Courts in British India prior to NarayanSawami's case in certain cases held certain statements containing admission, of incriminating facts as confessions in view of the definition of confession in Article 22 of 'Stephens Digest of the Law of Evidence' which defines confession as an admission made at any time by a person charged with crime stating or suggesting the inference that he committed that crime. References as may be made to the cases of R. v. Babulal (1), R. v.
Nana (2), R. v Shivabai Bechenbhal (3), R. v. Anandran (4), Muhammad Yusif v. Emperor (5)
Emperor v. Kangal Mali (6), Karam Din v. Emperor (7), and In re: Manicke Padayachl (8), in which statements containing admissions of incriminating facts have been held to be confessions and which must in view of Privy Council decision in Narayana Sawami's case be held to have been wrongly decided. In nutshell, confession means an, admission of a factor bundle of facts from which guilt is directly deducible and which within and of themselves import guilt. But the admission of a particular fact or circumstance which may or may not involve guilt and which for such a result is dependent on other facts and circumstances. To be established is not a confession Hence a confessional statement proved under section 24 of the Evidence Act or a plea of guilt coming on record in the shape of a statement under section 342, Cr. P. C. Or any other admissible statement for the purpose; of basing conviction solely thereon has to be a statement admitting in term. All the facts constituting the offence. If for the purposes of arriving a1 the verdict of guilt something else besides the statement is to be looked at then the statement would amount to an admission of some incriminatory fact or circumstance which may in conjunction with the other evidence on record support the case of the prosecution. There is also authority for the prosecution that where - a part of confessional statement is inculpator3 and part exculpatory and there is evidence on record to show that exculpatory part is false, the Court can ignore the exculpatory part and convict the accused on the basis of the inculpatory portion of the confession. See Sultan v. Emperor (9).
12. Considered in the light of the above discussion we find that the aforesaid statement of Nazak Hussain appellant is of no use to th4 prosecution as neither any confession can be spelled out from the said statement nor it amounts to admission of any incriminatory fact o circumstance. The appellant while closing defence evidence added that the case had not been investigated impartially by the Police. Nazak Hussair appellant thus did not admit the prosecution case and rather made a grievance out of it, and then, in the alternative, he claimed the benefit of the exception It is in the alternative that he claimed right of defence of his sister and benefit of grave and sudden provocation which was flowing from the version of the prosecution itself as the motive, according to prosecution, was that the appellants , had the suspicion that deceased had illicit relations with their sister. The words "in the alternative" and "which has been alleged by the prosecution" used in the statement have to be given due significance and importance. The statement so read does not amount to an admission of even an incriminatory fact or circumstance what to say of it amounting to a plea of guilt or a confession.
(1) 6 All. 509 (F B) (2) 14 Bom. 260 (F B)
(3) AIR 1926 Bom. 513 (4) AIR 1925 Bom. 529
(5) AIR 1930 Sind 225 ' (6) AIR 1915 Cal. 25fi
(7) AIR 1929 Lab. 338(8) AIR 1921 Mad. 490
(9) AIR 1945 Lab_ 91 also sec P 1. Ti 105R A-Sh 147
13. The upshot of the whole discussion is that the prosecution has miserably failed to bring home the guilt to the appellants. The appeal is, therefore, accepted and the conviction and sentence awarded to the appellants by the trial Court is hereby set aside. The death sentence awarded to the appellants is not confirmed. The appellants shall be released forthwith, if not required in any other case.