' NAZIR AHMAD BHATTI, J.-- Appellant Muhammad Ashraf son of Tila Muhammad aged about 20 years resident of Naguman, Tehsil Peshawar, was charged under section 302, P.P.C. For the murder of Mukhtar son of Noor Muhammad by a firearm on 5-7-1980 at about 1430 hours in the limits of P.S. Daudzai. He was tried, convicted and sentenced to death by the learned Additional Sessions Judge-II, Peshawar vide judgment dated 7-4-1983. The convict has filed the present appeal. The learned trial Judge has also referred the case to this Court for confirmation of the death sentence.
Noor Muhammad, father of deceased Mukhtar, has filed a revision-petition requesting therein that the entire landed and residential property of the appellant may be confiscated to the State and sale-proceeds thereof to be given to the heirs of the deceased as compensation. The appellant has also been convicted and sentenced to two years' R.I. Under section 13 of the Arms Ordinance, for having an unlicensed pistol in his possession, and another Criminal Appeal No, 34/83 has also been filed against that conviction. The present judgment will, however, dispose of both the Criminal appeals, murder reference and the criminal revision.
2. The prosecution case, briefly stated, was that on the fateful day deceased Mukhtar was going to village Meloogan in order to collect therefrom his clothes, chappals and other articles. He was accompanied by Muhammad Aslam complainant. They travelled to that village in Car No, BU-666 which belonged to Noor Muhammad, father of deceased Mukhtar, who was then Superintendent of Police, Bannu. A day earlier the family of Noor Muhammad was brought in this car by the complainant Muhammad Aslam, who was then official driver of Noor Muhammad, from Bannu to Peshawar. After remaining in village Meloogan upto 2 p.m., deceased Mukhtar and complainant Muhammad Aslam returned to Peshawar. Whilst so returning they heard near the place of occurrence a bang. Muhammad Aslam taking it to be puncture of the tyre stopped the car for checking. He got down from the car and so did deceased Mukhtar. In the meantime, a young man, who was latter identified to be appellant Muhammad Ashraf, clad in white clothes, armed with 'tamacha' approached them. Altercation ensued between Muhammad Ashraf and deceased Mukhtar. Soon after Muhammad Ashraf fired a shot with 'tamacha' at Mukhtar, who got injured and fell down to the ground. Muhammad Aslam lodged F.I.R. No, 215 at P.S. Daudzai at 1540 hours, which was recorded by the S.H.O. Present in the police station. In this report, he charged the appellant for effectively firing at Mukhtar who later succumbed to his injury in the hospital on the next day.
3. The prose&ition produced in all 12 prosecution witnesses. P.W.12 Dr. Fayyaz Naeem, examined Mukhtar on 5-7-1980 at 3-25 p.m. Who was admitted in the Lady Reading Hospital, and found one firearm entrance wound on the inferior surface of lower jaw, oval, 2/3 c.m. In diameter. No charring marks, about 1.5 c.m. Posteri to mandibular margin. The duration of the injury was within 2 hours of examination and it was dangerous to life. Injured Mukhtar subsequently succumbed to his injury and P,W.11, Dr. Abdul Malik Safi received his death summary and prepared post-mortem report.
4. P.W. 6 Muhammad Aslam is the complainant and the only eye- witness of the occurrence. We need not reproduce his evidence here because the same has already been reproduced in an earlier paragraph of this judgment. He narrated the same story which he had disclosed in the F.I.R.
We would, however, add that in the F.I.R. It was mentioned that while getting down from the car deceased Mukhtar also took out his pistol, but this circumstance was denied by P.W. Muhammad Aslam at the trial. This witness further stated at the trial that after the occurrence he was locked in a room and was later recovered by the police but this circumstance was also not mentioned by him in the F .1. R .
5. P.W.8 Hussainullah S.I. Was present in P.S. Daudzai where P.W. Muhammad Aslam came and lodged F.I.R. No, 215, which was recorded by the former. After recording the said report P.W.
Hussainullah went to the spot, prepared the site plan. Accused Muhammad Ashraf was coming towards them alongwith 9/10 other persons and the complainant pointed out the accused to this witness. This witness recovered one empty of .32 bore pistol from the spot and took the same into possession. He also recovered one live .32 bore cartridge from the scene of occurrence. He recovered blood-stained earth from the spot. He arrested accused Muhammad Ashraf who produced his pistol No, 6993 of .32 bore, which he took into possession vide memo. Exh. P.R./4. He also recovered pistol of the deceased bearing No, 460481 from the spot vide recovery memo. Exh.
P.R/7. He sent both the pistols and the empty recovered from the spot to the Arms Expert, according to whose report, Exh. P.L., the empty recovered from the spot was fired from the pistol recovered from the accused. The accused was produced by this witness before P.W.9, Abdullah Jan Khan Afridi, Magistrate 1st Class, Peshawar, on 6-7-1980 where he made a confession, the contents of which are that on the day of occurrence the accused was sitting outside his house when Mukhtar Ahmad came in a police motor-car and asked the accused that he would soon return and would convert yesterday's joy into sorrow. After about 10/15 minutes he again came back in the same car alongwith the same policeman and immediately after alighting from the car fired a shot at the accused but missed him. He then fired another shot which also went amiss. In self-defence, the accused fired a pistol shot with which Mukhtar was hit and fell to the ground. Thereafter, uncle of the accused went to the P.S. And lodged the report. Then police came and took Mukhtar Ahmad to the Hospital. It is to be noted here that the learned trial Judge had not asked any question about this confession to the accused in his examination under section 342, Cr.P.C. We, therefore, with the consent of the learned counsel for the parties, summoned the appellant in Court and recorded his statement on 20-6-1984 wherein he admitted that he had voluntarily made this confession before the Magistrate and it was correct.
' In his examination under section 342, Cr.P.C. Before the learned trial Judge on 16-2-1983 the accused denied having committed the murder of Mukhtar Ahmad. He, however, admitted that he had been picked up by the complainant Muhammad Aslam from amongst 6/9 persons to be the person who had fired at Mukhtar Ahmad. To the question as why he had been charged and what was his statement, he deposed as under:- "The deceased was a bad character and he was a proclaimed offender in five different cases. He was also convicted under Article 3/4 P.O. When he was wearing the uniform of his father, though eleven maunds of opium was recovered from him on Bannu-D.I.Khan Road, yet he was given two months' R.I. Because of his father. The deceased had robbed our tenants and the police refused to record the report. My paternal-uncle Haji Baz Muhammad went to S.S.P., Peshawar and thereafter a S.I. Was deputed from Peshawar to register a case against the deceased. This infuriated the deceased and on the day of occurrence, he came in the car of his father, driven by Muhammad Aslam P.W. Who was in uniform. He was armed with a pistol. He stopped the car right in front of our house and fired at me. I also fired at him in the exercise of right of defence of person. The deceased was hit. My paternal-uncle Haji Baz Muhammad went to P.S. And lodged the report. On the report of my deceased, F.I.R. No,214 was registered against the deceased. This report is Exh. P.E. Dated 5-7- 1980, and is available on file No,25 of 1982. Aslam P.W. Has made the statement against me under the influence of the father of the deceased. His report and his statement in Court support my plea of right of defence of person."
6 The fact that Mukhtar Ahmad had died of violence was not only supported by the medical evidence on the record but was also not disputed by the defence. The only question to be determined, however, was whether the occurrence took place in the manner alleged by the prosecution or in the manner disclosed by the defence. The learned trial Judge while accepting the prosecution story and rejecting the defence version convicted the appellant for the murder of Mukhtar Ahmad and finding no mitigating circumstances awarded him the normal penalty of death. At the trial, the prosecution relied upon the ocular evidence, the medical evidence and the circumstantial evidence in the form of recoveries, and the report of the Arms Expert. The ocular evidence was furnished by P.W.6 Muhammad Aslam complainant. The medical evidence was proved by P.W.12 Dr.Fayyaz Naeem and P.W.11 Dr.Abdul Malik Safi and the reports Exh.P.M/1 and Exh.P.M/2. The circumstantial evidence consists of the recoveries relied upon by the prosecution of an empty shell, Exh.P.2, recovered from the spot and taken into possession by the I.O. Vide recovery memo. Exh.P.R/2 and the pistol bearing No,6993, Exh.P.4, produced by the appellant himself before the I.O., who also took it into his possession vide recovery memo. Exh.P.R/4, and the report of the Arms Expert, Exh.P.L. According to which the empty, Exh.P.2, was fired from the pistol, Exh.P.4.
7 In so far as the ocular evidence is concerned, the important fact to note is that the presence of P.W.6 Muhammad Aslam complainant at the spot at the time of occurrence, is not only proved by the prosecution but has also been admitted by the appellant. This witness has charged the appellant for committing in his presence the murder Mukhtar Ahmad and furnished other details of the occurrence, mentioned in an earlier paragraph of this judgment. He also stated that at the relevant time the deceased was empty-handed. He further stated that an old man caught hold of him and locked him in a room from where he was recovered by the police after about 45 minutes or an hour. He confirmed having lodged the first report but denied having stated therein that deceased Mukhtar Ahmad got down from the car with a pistol in his hand. He was confronted with the F.I.R. Lodged by him in regard to the above circumstances. We have given our anxious thought to the ocular evidence furnished by this witness at the time of trial. His presence has been admitted at the spot at the time of occurrence. This fact has a very important bearing on his testimony and we would rely upon the testimony of this witness which is corroborated by the first information report lodged by him, and the medical and circumstantial evidence, and would reject an improvement made by him at the time of trial. It is now a well-settled principle of criminal justice that in matters of evidence grain is to be sifted from chaff and this maxim would be specifically true in the case of a witness whose presence has been established at the spot at the relevant time.
Having taken into consideration all these circumstances, we would not take into consideration the explanation of this witness for lodging the first information report with a delay of 45 minutes or an hour. But even if this circumstance explaining the delay is not accepted by us, nonetheless the case of the prosecution does not suffer from any deficiency for the reason that firing was resorted to by the appellant, which factum he has neither denied during investigation, nor during trial. This would mean that the delay in lodging the F.I.R was not utilised by this witness in making out a false case against the appellant. The other circumstance which was denied by him at the trial, is that on hearing bang the deceased had alighted from the car also armed with a pistol. This circumstance can also not affect the prosecution case very materially for the reason that this pistol was also taken into possession by the I.O. And it was proved that it had not been used at all during the occurrence. Neither any empty matching this pistol was recovered from the spot, nor it gave any smell of fresh discharge. We are, therefore, firm in our minds that the denial of these two circumstances by P.W.6, Muhammad Aslam at the trial has not given any edge to the defence over the prosecution.
8 In so far as the medical evidence is concerned, it is noteworthy that the injury sustained by the deceased could very well be caused by a pistol shot if we take into consideration the dimension of the said 1) injury. This would prove that the deceased was done to death by a pistol shot. The recovery of a pistol from the possession of the appellant immediately after the occurrence would also go a long way in proving that a pistol was used in the commission of the offence.
9 The circumstantial evidence also brings home the guilt to the appellant. This evidence consists of the crime weapon recovered from the possession of the appellant by the I.O. Immediately after the occurrence, rather it was himself produced by the appellant to the 1.0. Who took it into possession.
The I.O. Also recovered an empty shell from the spot which was found by the Arms Expert to have been fired from the pistol produced by the appellant.
10 ' On the contrary, the defence version was that the appellant had committed the murder of Mukhtar Ahmad in exercise of right of self-defence. In this connection it was urged before us by the learned counsel for the appellant that the deceased was the first to fire at the appellant, who escaped unhurt, He contended that the deceased had fired two shots at the appellant whereafter he was forced to fire back in order to save his life. The learned counsel further argued that it was the duty of the prosecution to prove their case beyond any reasonable doubt, and if any plea of self-defence was .Put forth by the accused or if there existed circumstances from which this theory could be inferred, then the accused was not required to produce any strong evidence to prove this plea. It was sufficient for him if he could succeed in bringing circumstances on the record from which the theory of right of self-defence could be inferred. In this connection, he has invited our attention to the case of Safdar All v. The Crown PLD 1953 FC 93 wherein it has been held that in a criminal case, it is the duty of the Court to review the entire evidence that has been produced by the prosecution and the defence. If, after any examination of the whole evidence, the Court is of the opinion that there is a reasonable possibility that the defence put forward by the accused might be true, it is clear that such a view reacts on the whole prosecution case. In these circumstances, the accused is entitled to the benefit of doubt, not as a matter of grace, but as of right, because the prosecution has not proved its case beyond reasonable doubt. In this connection, the learned counsel for the appellant further brought to our notice the case of Hakim Ali and 4 others v. The State and another 1971 SCMR 432 wherein it has been held "that the onus always lies on the prosecution to prove its case. "The learned counsel in order to prove his point of view brought to our notice the confession of the appellant which was accepted by the appellant as having been made by him voluntarily, and his statement recorded by the learned trial Judge under section 342, Cr.P.C.
His contention was that both these statements showed that the appellant had acted in exercise of his right of defence of person. We would like to analyse both these statements in order to find out their intrinsic value. We would first take up the confessional statement made by the appellant one day after the occurrence. He has stated therein that the deceased had come to him and threatened him that he would return and bring him grief. The appellant has further stated that 10/15 minutes after the threat, the deceased came and started firing at him. This circumstance, according to our considered view, does not help the appellant in any way. It would, on the contrary, prove it to be a case of premeditated and calculated murder. The appellant knew that the deceased was a desperado and if he had given him a threat, then he would certainly come back and cause him some harm. This conclusion is further amply supported from the very contents of the confessional statement. The appellant had got an intervening period of 10/15 minutes in- between the threat and the actual occurrence, which he could very well utilise for going away from the spot. His determination to keep sitting there and waiting for the return of the deceased and also being in possession of a pistol, would show that he was also determined to fight back. This circumstance, as disclosed by the appellant in his confessional statement, would prove that the murder of Mukhtar Ahmad did not take place suddenly but it had a symbol of premeditation. The learned counsel for the appellant further urged that the confessional statement of the appellant had to be accepted or rejected in toto and we could not pick and choose therefrom, but we would point out that this is no longer the principle of criminal law. It has now been settled by many judgments of the 'superior Courts of this country that if there is ocular evidence in a case to which an exception cannot be taken, then that portion of the confessional statement which is not corroborated by ocular evidence, can be discarded by the Courts. It has come in evidence in this case that the deceased was not the first to start the occurrence. He had not fired any shot muchless to say that he intended to shoot the appellant. The pistol recovered from the spot and attributed to the deceased was not even used, nor any empty matching this pistol was recovered from the spot. It cannot, therefore, be presumed that the deceased had also fired at the appellant.
We would, therefore, reject this portion of the confessional statement, and if this portion is excluded from consideration, the occurrence becomes a premeditated and cold-blooded murder. In this connection we would rely upon the case of Shahzada Khan v. The State 1983 P Cr. L J 1402 and would hold that a portion of a confession can be rejected by the Court in a criminal case where it is belied or contradicted by the ocular evidence.
11. The learned counsel for the appellant has further urged that the right of self-defence of the appellant is established from the statement made by him under section 342, Cr.P.C. We have also considered this aspect of the case very minutely but we are unable to agree with him. The learned counsel urged that the said statement of the appellant if it is to be relied upon, then it should either be accepted in toto or rejected in entirety, but we cannot subscribe to this contention also for the reason that a statement made by an accused after prosecution evidence has been recorded is generally a result of much thought and given after due consideration. In that statement, the accused can suppress or deny any circumstance appearing against him in the evidence. Even otherwise if conviction is to be based on the mere statement of the accused, then this contention may be right and the said statement will have to be accepted in its entirety, but where ocular evidence of an unimpeachable character has come on the record, then the said statement of the accused can be rejected in regard to those circumstances which are not supported or corroborated by the prosecution evidence. The learned counsel for the appellant tried to make out a case of self-defence from that statement, and in that respect he relied upon the case of Faiz and another v. The State 1983 SCM R 76 wherein it has been held that "the accused is questioned only on matters found incriminating against him in the evidence. His reply or narration is not tested or completed either by cross-examining him or by putting him further questions. The state of his mind is not proved. His bare statement about it exists on record, for whatever its worth. In the absence of any other evidence it has to be accepted as a fact, though apparently not fully established.
Applying this principle consistently followed by Courts, the appellants, on their version of the occurrence, which was the only version left in the field to fall back upon, were entitled to acquittal.
The appeal is, therefore, allowed. The conviction and sentence of the appellant is set aside. They are to be released forthwith from the prison unless their detention is required in some other case. It shall thus be seen that if conviction is to be recorded solely on the statement of the accused, then it is to be accepted or rejected in toto but if there is sufficient ocular evidence in the case then this principle is not applicable and the intrinsic value' of the said statement has to be found out. As has been mentioned at more than one place in this judgment that the testimony furnished by the sole eye-witness did not suffer from any infirmity, his said statement is to be relied upon to the exclusion of the statement made by the appellant under section 342, Cr.P.C. And according to ocular testimony the guilt of the appellant was brought home without any reasonable doubt. Not only that but we also intend to 'examine the judicial value of this statement. The appellant admitted that the deceased was a desperado. He had also robbed his tenants and had also committed many other offences with which the appellant appeared aggrieved. He was, therefore, determined to do away with him. The contention that the deceased had first fired at him was disproved from very strong evidence which has come on the record from the prosecution side. As such, the appellant was not possessed of any right of private defence of his person at the time of the commission of the offence. We would not, therefore, accept this portion of his statement also.
Putting the confession and the statement of the appellant in juxtaposition we have come to the unexceptionable conclusion that the appellant could not succeed in making out a case of assault on him by the deceased first, and having arrived at this conclusion we do not find any mitigatting circumstances going in his favour.
12. The net result of the above discussion is that the conviction of 4, the appellant and sentence of death awarded to him by the learned trial Judge was correct.
13. In so far as the Cr.Appeal No,34/83 is concerned, it was also proved that the pistol used by the appellant in the commission of the offence was unlicensed. He failed to show any valid authority for keeping that arm with him. In that offence he was also rightly convicted and sentenced by the learned trial Judge.
14. As regards the Cr.Revision No,28/83, the learned trial Judge did not order the award of any compensation to the heirs of the deceased for the reason that the prosecution had not produced any evidence to show that the appellant was possessed of any property. In this respect, we also agree with the above observation.
15. An a result of the above discussion we would maintain the conviction and sentence of death under section 302 P.P.C. Passed on the appellant by the learned trial Judge and also his conviction and sentence under section 13 Arms Ordinance, and would dismiss both his appeals (Cr.A.No,33 and 34 of 1983). We would also dismiss the criminal revision petition (Cr.R.No,28/83) and answer the murder reference No,6/83 in the affirmative.