FAIZ MUHAMMAD KHAN, J.---Shahzada son of Turab Ali, aged 25-30 years, resident of Ustar Zai Bala, District Kohat, was tried by the Sessions Judge, Bannu for the murder of Elal Hussain son of Aftab Hussain, aged 22 years. The learned trial Judge, finding Shahzada accused guilty of the offence, convicted and sentenced him to death, subject to confirmation by the High Court. Against his conviction and sentence Shahzada has filed this appeal. The learned Sessions Judge has also referred the case to this Court for the confirmation of the death sentence awarded to the accused.
This judgment would dispose of the appeal and the reference.
2. The prosecution case, in brief, was that the accused-appellant and the deceased were both (Sepoys) in Frontier Constabulary and were posted at F. C. Fort, Jani Khel. On Ist February, 1981 at about 4.30 p. m. When Elal Hussain (deceased), in the company of Jamshed Ali and Asian Ali (Sepoys) after finishing his day duty was going out of the gate of the Fort, he was fired at by Shahzada, accused-appellant, who was then on guard duty at the gate. Elal Hussain (deceased) after getting injured rushed towards stable side and fell down on the ground there. Shahzada, accused-appellant, also fired one shot in the air so that nobody could come near him. He was, however, over-powered by other constables and arrested on the spot with his service rifle, which was snatched from him by Noor Muhammad, Lais Naiq (P. W. 6.). One empty was found in the chamber of the rifle and one empty was found lying on the ground which were recovered by Noor Muhammad (P. W. 6) and banded over, alongwith the rifle, to Subedar Ikhtiar Shah, from whom they were taken into possession by the Investigating Officer, vide recovery memo. Exh. P. E. The case was investigated by the police and challaned to the Court where it ended in the conviction of the accused appellant as aforesaid.
3. At the trial the prosecution relied on the ocular testimony furnished by Jamshed Ali (P. W. 8) and Asian Ali (P. W. 9), the medical evidence and the confessional statement of the accused-appellant, which was recorded by Baz Muhammad (P. W. 10). Reliance was also placed by the prosecution on the statements of Hayat Khan (P. W. 1). Ashraf Hussain (P. W. 2), Bismillah Jan, A. S. I. (P. W. 4), Noor Muhammad (P. W. 6), Muhammad Qamar Hussain (P. W. 7), and Abdur Rahim Khan, I. O. (P. W. 12).
The Fire-arms Expert's report Exh. P. M., the duty slip Exh. 4, the recovery Memo. Exh. P. F. Showing that the crime rifle was with Shahzada Khan, accused-appellant, when he was on duty on the relevant day and the List Exh. P. 5 showing the allotment of various weapons to the constables of Platoon No. 15 were also relied upon by the prosecution. The learned trial Judge based conviction of the accused-appellant mainly on the ocular testimony, the recovery of rifle and the empties and the Fire-arms Expert's report respecting them, the medical evidence, the site plan and the confessional statement made by the accused-appellant.
4. It was not disputed that both the deceased and accused-appellant were employed as constables in the Frontier Constabulary and on the day of occurrence they both were present on duty at F. C. Fort, Jani Khel. At about 4-30 p. In., on the day of occurrence, Shahzada, Accused- appellant, was on guard ditty qt, the $ate of the Fort, as stated by Ashraf Hussain (P. W. 2), who was front Guard Commander, Muhammad Qamar Hussain (P. W. 7), Jamshed Ali (P. W. 8) and Asfan Ali (P. W. 9), Jamshed Ali (P. W. 8) and Asfan Ali (P. W. 9) were accompanying the deceased when in their presence and view Shahzada. Accused-appellant, fired one shot at the deceased with his service rifle, No. 42210w which hit the deceased, who succumbed to the injuries later. The two eye- witnesses, named above, deposed to that fact at the trial.
5. The accused-appellant was arrested on the spot immediately after the occurrence and the service rifle with which he had fatally injured Elal Hussain deceased was recovered from him when he was overpowered by other constables of Platoon No. 15 posted at F. C. Fort, Jani Khel. The two empties used by the accused-appellant were also recovered, one lying on the ground at the place of occurrence and the other from the chamber of the rifle. Both the empties were found by the Arm Expert to have been fired from the service rifle which stood allotted to the accused-appellant and was recovered from him when he was overpowered by other constables after the incident.
6. The accused-appellant had made confessional statement before Baz Muhammad Khan, Magistrate, who was examined at the trial as P. W.
10. The sheet containing questions and answers and the con--fessional statement made by the accused-appellant were proved by Baz Muhammad Khan (P. W. 10) and were exhibited as Exh. P. B and Exh. P. B./1 respectively. The confessional statement was inculpatory in nature wherein the accused-appellant admitted to have effectively fired at the deceased with his service rifle. This confessional statement was made by the accused-appellant on the second day of his arrest and to us it appears to be voluntary and true to the extent of admitting the guilt. No doubt, it was retracted at the trial but such retraction was of no significance in the circumstances of this case. Being voluntary and true, to the extent mentioned above it could be relied upon for the conviction of the accused-appellant, especially when to that extent it was also supported by the unimpeachable ocular testimony and other evidence brought on record through the mouth of totally disinterested witnesses, which could independently form basis for the conviction of the accused-- appellant. It was further supported by the circumstantial evidence i.e. The arrest of the accused-appellant on the spot and the recovery of the service rifle from him containing one empty in its chamber and the recovery of one empty from the spot, which both were opined by the Arms Expert to have been fired from the same rifle. Even if for any reason, to which we need not refer since not urged before us, this con-- fessional statement was kept out of consideration, there was available on the record, as already observed, unimpeachable ocular and circum--stantial, evidence to provide basis for the conviction of the accused appellant.
7. We, are, therefore, of the view that on the basis of the evidence produced at the trial the prosecution had fully proved its case against the accused-appellant beyond reasonable doubt and it was for that reason that M. Zahoorul Haq, the learned counsel for the accused --appellant, while arguing the case frankly and rightly conceded before us that the conviction recorded by the learned trial Judge on the accused-- appellant, being well founded, could not be assailed. The learned counsel, therefore, confined his arguments to the quantum of punish--ment and argued that in the circumstances of the cash the maximum penalty of death could not be exacted from the accused-appellant. He urged that in this case the imprisonment for life would meet the ends of justice. Mian Muhammad Ajmal. Advocate appearing for the State, however, argued that since there was no mitigating circumstance in this case, the accused-appellant deserved to be awarded the penalty of death. He, therefore, fully supported the sentence awarded by the learned trial Judge to the accused-appellant.
8. While elaborating his contentions the learned counsel for the accused-appellant argued that the learned trial Judge while placing reliance on the confessional statement made by the accused-appellant erred in not accepting that statement in its entirety. He contended that it was not open to the learned trial Judge to accept that portion of the confessional statement which favoured the prosecution and reject that portion which, in any way, favoured the defence. He submitted that if the confessional statement is accepted in its entirety, then the reason given by the accused-appellant for the commission of the crime furnished a mitigating circumstance the benefit of which has to be given to the accused--appellant. In this regard0 the learned counsel cited PLD 1951 B J 31, PLD 1950 B J 67, AIR 1930 Lah. 269 and PLD 1978 SC 200. We have carefully gone through the cases reported as PLD 1950 B J 67 and PLD 1951 B 1 31, which are of no help to the accused-appellant's case because in those cases there was no evidence on the record to show that any portion of the confessional statements was untrue. It was for that reason that while accepting the confessional statements in their entirety, something found therein favouring the accused was considered in their favour. The law laid down in those cases, however, was that if there was available on record reliable evidence to show that a portion of the confessional statement was untrue, then that portion of the con--fessional statement was not to be accepted by the Court and only that por--tion of the statement which was found to be true was to be considered by the Court. In this case the accused-appellant in his confession stated that he fired at the deceased, hitting him on his back, because the deceased, being older to him in age, used to tease and humiliate him every where and even on the day of occurrence, at morning time and also at the relevant time, while passing near him the deceased humiliated him in a disgrace--ful manner. So far as the portion of the confessional statement relating to the firing with service rifle on the deceased and hitting him on his back was concerned, this portion was fully corroborated by the testimony of two totally disinterested eye-witnesses, the recovery of the empties and that recovery of the rifle from the accused-appellant soon after the occurrence, the medical evidence and the report of the Fire-arms Expert. This portion could, therefore, be accepted by the Court even according to the authorities cited by the learned counsel for the accused-appellant, referred to above. But the other portion of the confessional statement, relating to the disgraceful treatment meeted out to the accused-appellant by the deceased, found no support from the other evidence placed on record. It was rather belied by the categorical statement given to the contrary by Ashraf Hussain (P. W. 2), who was at the relevant time acting as Guard Commander and was naturally present on the spot at the relevant time. Even other witnesses produced at the trial, who were serving in F. C. Fort, Jani Khel, and could have known real facts in that respect, said nothing is that regard, nor were they particularly questioned by the defence on that Score, The authority cited as A, I. R. 1930 Lah. 269 was equally inapplicable to the facts of this case because in the cited case the conviction was entirely based on the confession made by the accused, which was not the case here. The authority reported as PLD 1978 SC 200 was also inapplicable to the facts of the case because in that case, as held by the Supreme Court, the conviction was "really based" on the confession made by the accused, but in this case, besides the confession made by the accused- appellant, there was overwhelming evidence on the record to provide basis for the conviction of the accused-appellant. This argument of the learned counsel for the accused-appellant, being without substance, cannot prevail.
9. The next argument of the learned counsel for the accused-- appellant was that since the prosecution failed to bring on record, either by suppressing it or by inadvertence or ignorance, evidence to show as to what was the motive for the offence, that circumstance alone furnished a mitigating circumstance, in presence of which the death penalty was not called for. Elaborating it further he argued that if the reason given by the accused-appellant in his confessional statement for committing the crime was not accepted, then there was absolutely no other evidence on the record to establish the motive for the offence. He contended that one fails to understand as to why the accused-appellant, without any motive or previous enmity, all of a sudden fired at the deceased when he was passing near him, as alleged by the prosecution. He, therefore, suggested that in the circumstances the reason for the crime as mentioned in the confession of the accused- appellant could only be the plausible motive for the offence, and when accepted, it constituted a mitigating circumstance calling for lesser penalty. He also argued that the pre-meditation to commit murder was not established in this case and for that reason the accused-appellant did not deserve to be visited with the maximum penalty of death. In support of his arguments the learned counsel relied on PLD 1959 Kar. 460, 1975 P Cr. L J 1088, 1978 P Cr. L J 290 and PLD 1971 Lah.
708.
10. We have considered the above-stated arguments of the learned counsel in the light of the law cited by him. We have already rejected the reason for the crime mentioned by the accused- appellant in his confession, as being unacceptable and untrue, and we need not repeat here the reasons already given by us for discarding the same. We would, however, like to add that such was not the case set up by the defence at the trial, as no such explanation was offered by the accused- appellant when he was examined under section 342, Cr. P. C. It is true that in case reported as PLD 1959 (W. P.) Kar. 460 their Lordships had reduced the sentence of death to that of transportation for life because the prosecution had failed to establish motive in that case, but the facts of that case were different from the facts of this case. In the cited case the witnesses produced were expected to know the real motive for the offence, which they had, probably, suppressed, but in this case the witnesses/ to the occurrence produced at the trial were those who were serving at the relevant time at F. C. Fort, Jani Khel and they could not be expected to know the family history of the accused-appellant and the deceased and thus may not have been in a position to tell some-- thing which could have been dug out of that history. For that reason and also for the reason that there are authorities to the contrary, in--cluding that of the Supreme Court, to which we would refer later, we would respectfully keep the cited case out of consideration. The case reported as 1975 P Cr. L J 1088 was equally inapplicable to the facts of Ibis case because in that case tile Court found that "there is no element of premeditation and that he had killed the deceased on the spur of moment without there being anything to sustain the motive suggested by Soomar. 99 In the case in hand, however, the element of premeditation not only established from the confessional statement made by was the accused-appellant but also ft urn the circumstances that nothing untoward had preceded the occurrence, as stated by Ashraf Hussain (P. W. 2) and Asfan Ali (P. W.
9) who both were present at the time of occurrence. However, this was neither a killing "on the spur of moment"; nor was any motive suggested by any witness in this case, as was suggested by Soomar in that case, what was in the mind of the accused-appellant at the time of the commission of the offence was difficult to find out as be alone could have the knowledge of it.
What was, however, establish--ed in this case was that it was a case of premeditated killing.
Failure to discover motive for an offence is not suggestive of its non-existence and failure to produce evidence of motive was not fatal to the prosecution case when there was available on the record overwhelming evidence furnished by totally disinterested witnesses to establish the guilt of the accused-appellant. We may here cite with advantage the cases reported as 1979 P Cr. L J 265, 1976 P Cr. L J 1272, 1974 P Cr. L J 1 and PLD 1975 SC 160. The case reported as 1976 P Cr. L J 290, was also dis--tinguishable on, facts. In that case the Court presumed that "the com--mission of murder must have been preceded by some events between the assailant and the deceased, which have not been brought on record by the prosecution." The Court, therefore, held "when immediately if the preceding circumstances of murder are shrouded in obscurity, then, extreme penalty of death is normally not imp6sed and sentence of life imprisonment is considered appropriate-in such circumstances". 1n the case in hand, however, no such presumption could be drawn when there were available on the record categorical statements given by Ashraf Hussain (P. W. 2) and Asfan Ali (P. W. 9), totally disinterested witnesses, indicating that nothing had preceded the occurrence which could have become reason for the crime. For having different facts and also because the story put forward by the prosecution concerning motive was found to be false, the case reported as PLD 1971 Lah. 708 was of no assistance to the accused appellant's case. We would, therefore, repel these arguments of the learned counsel for the accused appellant as well.
11. We are of the view that where in a case notice remains undisclos--ed, but deliberate killing is established on the record and there is mitigating circumstance, as in this case, this case, then the Court should not he--sitate in awarding the killer the normal penalty of death provided in law.
12. No other point was urged by the learned counsel for the accused-appellant before us.
13. In the result, finding no merit in this appeal, it is hereby dis--missed. The death sentence awarded to the accused-appellant is con--firmed. Murder reference is answered in the affirmative.
14. We have noticed that the learned trial Judge failed to comply with the mandatory provisions of section 544-A, Cr. P. C. In this case. While passing an order of conviction, the learned trial Judge neither directed the accused-appellant to pay compensation to the heirs of the deceased nor gave any reason for not making such direction. On our part, since the accused-appellant was employed as a "sepoy" in the Frontier Constabulary having meagre sources of income, and since the opposite side raised no claim, we would not make any order burdening the accused-appellant with the payment of compensation to the heirs of the deceased.