MUHAMMAD KHIYAR, J.--Maroof Jan son of Habib Jan, caste Awan, aged about 60/65 years, resident of Sukari Jabbar, Police Station Cantt., Bannu was tried a/s. 302, P.P.C. For the murder of Farid Khan deceased by the learned Sessions Judge, Bannu who vide judgment dated 5-12-1990 found the charge proved against the accused and on conviction sentenced him to death subject to confirmation by this Court. He was also fined to pay Rs.10,000 in default whereof to undergo further simple imprisonment for two years. Half of the fine, on recovery, was ordered to be paid to the legal heirs of the deceased as compensation a/s. 544-A, Cr.P.C. The convict/appellant has challenged his conviction and sentence by riling Criminal Appeal No.20 of 1990 to this Court. The learned Sessions Judge has.' also made Reference No.2 of 1991 while Hamidullah complainant has filed Cr. Revision No.3 of 1991,- praying for enhancement of compensation to.Rs.1;70,610. We propose to dispose of these three matters by this single judgment.
2. The convict appellant was tried a/s. 302, P.P.C. For the charge of murder of Farid Khan deceased, brother of Hamidullah complainant. Report of the occurrence was made by Hamidullah on 24-7- 1988 at 1930 hours at Police Station Cantt. Bannu. The occurrence had taken place near the house of Shamir Khan on pacca road at a distance of two kilometres from the police station at `Digar Qaza Vella' on the same day. It was reported by the complainant that he along with his brother Farid Khan deceased and his relative Noor Payo was going to their house in village Sukari Jabbar when near the house of Shamir Khan, the accused Maroof Jan was standing armed with a D.B. .12 bore shot gun who shouted at the deceased and fired at him. The fireshot hit Farid Khan who fell on the ground and the accused decamped from the spot. Since the complainant and his companion Noor Payo were empty handed, therefore, they could not follow the accused. They took the injured in a Flying Coach to Civil Hospital Bannu for treatment but he succumbed to the injuries in the Hospital. Hukam Khan A.S.I. Police Station Cantt., Bannu registered the case vide F.I.R. Ex. P.A. And.
Started the investigation. While proceeding to the spot he came to know about arrest of the accused made by Muhammad Ali Khan (P.W.6), Incharge body-guard of Police Post Sukari Gate.
He, therefore, went there and arrested the accused and also recovered from his possession one D.B. Shotgun No.4322 (EX.P.1) containing one empty in its chamber giving smell of fresh discharge along with bandolier containing seven cartridges (Ex.P.2) which were scaled into a parcel vide recovery memo Ex.P.R. The accused produced licensed copy of the said gun which was also taken into possession vide recovery memo Ex.P.R./1. The 1.0. Recorded the statement of Muhammad Ali F.C. And then. Proceeded: to the spot where he prepared the site plan (Ex.P.B.) at the instance of the eye--witnesses. He recorded the statements of the PWs and took into possession clothes of the deceased i.e. One blood-stained shirt (Ex.P.4); one blood-stained banyan (Ex.P.5) containing cut marks and phial containing two pe.Lho.1s and a cardboard disc sent by the doctor. All the articles were scaled into a parcel vide recovery memo Ex.P.R./2. The blood-stained clothes and D.B.
Shotgun along with one crime empty were sent to the Laboratory for test., The result received Ex.P.E.
And Ex.P.E./1 disclosed that clothes were stained with human blood and empty was fired from the barrel of .12 bore D.B. Shotgun No.4322. After completion of investigation the I.O. Submitted-the record to the S.H.O. For submission of complete challan in the Court which was accordingly submitted by Allah Bakhsh, S.H.O..
3. In order to prove the charge against the accused/appellant, the prosecution produced 11 witnesses: Out of the PWs. Gul Anar Khan (P.W.5) deposed about the motive that accused and deceased had abused each other because accused's son was forbidden to make aerial firing by the deceased. Habidullah complainant (P.W.9) and Noor Payao (P.W 10) gave the ocular account of the occurrence. Doctor Mohammad Bashir Khan (P.W.8) conducted the post-mortem examination on the dead body of Farid Khan deceased on 24-7-1988 at 9.30 p.m. And found the following:-- (1)Five fire-arm inlet wounds 1/4" x 1/4" in size in an area of 5" of the left umblicus; (2)Scalp, skull and vertebra, abdomen, walls, peritoneum, stomach. Pancreas, small and large intestines, liver, spleen, left kidney and bladder all injured. Stomach was empty. Pelvis fractured.
In the opinion of the doctor, the deceased died from injuries to vital organs i.e. Intestines, abdominal and ;torta leading to haemorrhage shock and death. One piece of cardboard was, recovered below the skin from the dead body. Two pellets were recovered from the left buttock.
Probable time between injury and (tenth was opined as half to two hours while between death and post-mortem examination 2 to 6 hours. He prepared the post-mortem report Ex.PM/2.
4. After close of the prosecution evidence the accused was examined under section 342, Cr.P.C. On being questioned about his arrest by the police of----post Sukari Gate along with the crime weapon the accused replied as under:-- "In fact I myself had surrendered before Police Post Sukari Gate officials as the relatives of the deceased were intending to kill me and were chasing me. I myself had presented the weapon of offence to the police:'
5. When asked about killing of the deceased, the accused answered as follows:-- "Actually I was waylaid by deceased Farid Khan as he wanted to take revenge of his disgrace because my son Dost Ali was abused by him one day prior to this occurrence and on the morning of the day of occurrence I and my on Dost Ali had disgraced Farid khan deceased by exchange of hot words and also aiming the gun at him as the deceased Farid Khan had done wrong with my son to stop him from aerial firing on the evening/night prior to the day of occurrence. I myself had tried my level best to rescue/escape: from the clutches but he was not in mood to forgive me for this. I begged a lot but this was also all in vain. He tried to kill me and in this scuffling and grappling where the deceased Farid also wanted to snatch my D.B. Shotgun my gun went off and as a result of which Farid Khan deceased was hit as he had caught the barrel of the gun, and fell down. I ran away from the-spot. The relations of the deceased chased me in order to kill, me whereas I took shelter in P.P. Sukari Gate and narrated the story to the police officials. I did not want to hurt him but it was all due to the act of the deceased".
6. In reply to the question as to why the PWs had deposed against him the accused said that they are close relations of the deceased and that no disinterested witness had deposed against him. He professed innocence and neither produced any evidence in defence nor appeared as his own witness under section 340(2), Cr.P.C.
7. The learned Sessions Judge was much impressed by the statement of the accused and without discussing the prosecution evidence in the impugned judgment took up the two pleas one arising out of the suggestion put to the witnesses in the cross-examination and, other about the self- defence taken by the accused in his statement under section 342, Cr.P.C. And observed as under:-- "I would like to take both the pleas taken by the accused one by one the burden of proof is lying on the accused as he raised the plea of self-defence at the first instance that Farid deceased had waylaid him to take revenge of his disgrace and fired at the end in self-defence the accused fired at the deceased; but no arm has been recovered from Farid deceased suggesting thereby that the deceased was empty handed at the relevant time. It has been held in 1973 PCr.LJ 656 Lahore citation `B' that it is impossible for any individual for the purpose of his defence to measure in golden scales the exact amount of force which he should use in such a situation but since no threat could be exhibited by the deceased to the accused who was duly armed with D.B. Shotgun, therefore the plea of self-defence taken by the accused is devoid of force. So far as the other plea that Farid wanted to snatch the D.B. Shotgun and during the scuffle the said shotgun went off as a result of which the deceased was hit is concerned, the medical evidence totally belies this plea of the accused as Doctor Mohammad Bshir Khan (P.W.8) who conducted autopsy on the dead body of the deceased found firearm inlet wounds (5 in number) each 1/4" x 1/4" in size in an area of 5" diameter of the left Umblicus. By putting the defence plea in juxtaposition to the prosecution's case; I am of the firm view that the prosecution plea is more probabic and convincing and the accused failed to establish the plea of self-defence, therefore, normal penalty of death is awarded to the accused in the facts and circumstances of the case. The accused is accordingly convicted and sentenced to death subject to confirmation by Honourable Peshawar High Court, Peshawar:'
8,Mr. Sanaullah Khan Gandanur Advocate for the convict /appellant, argued that the impugned judgment is violative of the mandatory provisions of section 367, Cr.P.C. Providing that the judgment shall contain points for determination, the decision thereon and the reasons for the decision. He argued that the learned Sessions Judge has neither given points for determination nor decision thereon and he simply took into consideration the statement of the accused and has not discussed the prosecution evidence nor reproduced the arguments advanced before him. In.
Support of his contentions, reliance was placed on a D.B. Judgment of-Balochistan High Court in the case of Issa Khan v. The State reported in PLD 1987 Quetta 174. It was next argued that statement of the accused has to be accepted or rejected as a whole whereas the learned Sessions Judge has not done so. Reliance was placed on the following cases:--
(1) Muhammad Hanif v. The State PLD 1977 Lah. 1253 and '
(2) Faiz and another v. The State 1983 SCMR 76.
The learned defence counsel further contended that it is always for the prosecution to prove the case against the accused beyond doubt and the accused is entitled to acquittal if he succeeded in creating reasonable doubt. The Court has to take into consideration the whole of evidence and not merely the plea of the accused. In support of his contention, reliance was placed on Safdar Ali v. The State PLD (1953.FC 93) which was referred and relied in Re: Muhainmad Aslam alias Aslam v.
The State (PLD 1953 FC 57) and Juma Khan v. The State (1990 PCr.LJ 56 Karachi).
9. Mr: Ejaz Muhammad Khan, the learned Assistant Advocate-General for the State, accepted the proposition of law that the judgment must conform to the requirements of section 367, Cr.P.C. And that the impugned judgment suffers from legal infirmities.
10. The cases cited at the Bar and the arguments advanced by the learned defence, counsel have led us to hold the view that the impugned judgment is violative of the provisions of section 367 Cr.P.C. The judgment does not contain the points for determination, nor any decision on the points with reasons; thereon. The evidence produced by the prosecution has not all been discussed. The arguments addressed before the trial Court are not known although it is mentioned in the judgment that arguments were heard. In the case of Eisa Khan v. The State PLD 1987 Quetta 174 his Lordship observed as follows:-- "We have carefully considered the operative portion of impugned judgment and relevant provisions of law. There is no doubt that normally minor omissions and commissions are curable and could be ignored by filling the deficiency by appellate Court. But in the instant case on account of failure to specify points for determination, absence of decision about contentions raised in the matter and total lack of reasons clearly constitute a material defect of impugned judgment which cannot be conveniently overlooked."
11. In the aforesaid case, the trial Court was directed to re-write the judgment.
12. The learned Sessions Judge was impressed by the statement of the accused forgetting at the same time that the statement of the accused was to be rejected or accepted in toto. In this respect, we may cite the case of Faiz v. The State 1983 SCMR 76 wherein it is held that:-- "The judgment of the High Court makes it abundantly clear that the ocular evidence was totally discarded and the only material utilized by the Court for determining the guilt of the appellants was the defence version. There were no proved or established facts to test the defence version. This distinguishes the decision in Imamudin's case which had proved or established facts. In Balmakund's case a reference to Full Bench of the High Court became necessary because the Judges hearing the case found the exculpatory part of the statement of the accused to be so unworthy of. Belief that no Court could act upon them. The Full Bench noted that during the last one hundred years the following two rules of criminal jurisdiction have been consistently observed without any attempt to engraft as exception:--.
(a)where there is other evidence a portion of the confession may, in the light of that evidence, be rejected while acting upon the remainder with the other evidence. .
(b)where there is no other evidence, the Court cannot accept the inculpatory element and reject the exculpatory element as inherently incredible.
In the case of Rahim Bux also it was held that where the conviction is based entirely on the statement of the accused, then that statement should be taken into consideration in its entirety.
9.The above view is based on the sound reason. 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 probed. 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."
13. In the instant case, the statement of the accused was not taken in its entirety and has thus caused miscarriage of justice. Question No.3 put to the accused besides being a composite question was not framed in accordance with the circumstances appearing in the evidence. The object of section 342, Cr.P.C. Le cannot be achieved by putting such a question to the accused.
14. We fully agree with contention of the learned defence counsel that it is always the prosecution who has to prove the charge against the accused beyond doubt. It is an accepted principle of administration of criminal justice that whole of the evidence is to be looked into and not merely the statement of the C accused irrespective of the prosecution evidence. The case-law cited at the Bar and referred to above can be of much help to the trial Court. Since the impugned judgment does not fulfil the requirements of law and the learned Sessions Judge while arriving at the conclusion about guilt of the accused has not appraised the entire evidence and the statement of the accused has also not been considered in its entirety, we have, therefore, decided to set aside the conviction and sentence of the accused and direct the learned Sessions Judge (Abdul Sattar Khan) now posted at D.I. Khan to re-write the judgment after examining the accused by putting to him the incriminating materials arising out of the evidence. The accused/appellant shall be afforded an opportunity to engage a counsel to defend him. Accordingly, we accept Cr. Appeal No.20/90, set aside the conviction and sentence of the accused/appellant and direct that he shall be kept as an undertrial prisoner till re-writing of the judgment by the learned Sessions Judge. The death sentence is not confirmed and Murder Reference No.2/91 is answered accordingly. Criminal Revision No.3/91 stands dismissed.