1. AMAN ULLAH KHAN, J.--Appellant Lal Muhammad alongwith another co-accused Adam, was tried by the learned additional Sessions Judge, Panjgoor, for causing the murder of Nazir Ahmad and has been sentenced to death under section 302(a), P.P.C. Vide Judgment dated 31-3-2000 the learned trial Court has made reference to this Court, under section 374 Cr.P.C. For confirmation of the death sentence, which has been registered as Murder Reference No,3 of 2000, whereas Appellant has also assailed his conviction and sentence by filing Criminal Appeal No, 41 of 2000.
2. Thus by means of this common judgment we intend to dispose of both the matters. Prosecution case as unfolded in the F.I.R. Exh.P-1/A lodged by P.W.1 Jamaluddin with Levies Thana Panjgoor on 20-2-1999, under sections 324/302/147/148/149/34, P.P.C. Is that on the day of incident his sons informed him that they had gone on a Donkey Cart to Kor Dumbian to cut wood and while they were cutting wood, appellant Lal Muhammad and other accused Rahim Bakhsh, Dil Murad, Adam and Phullan did not allowthem to cut wood and also cut the tyre of Donkey Cart into pieces.
3. On receiving such information, the complainant informed his brother Rasool Bakhsh so that they could bring the cart. Thereafter to bring the Cart, the complainant alongwith Rasool Bakhsh, Allah Bakhsh and Nazar Muhammad went to Kor Dumbian. Accused persons were already present there and were duly armed with Lathis and axes. The complainant asked them, as to why they have damaged their Donkey Cart, to which the accused stated, that they would not allow them to cut wood and started abusing them. However, when the complainant and his companians were trying to put the Donky Cart in the vehicle, co-accused Dil Murad (Absconder) aimed a gun at them and accused Rasood Bakhsh (Absconder) told Lal Muhammad to finish Nazar Muhammad. The appellant Lal Muhammad gave a hatchet blow to Nazar Muhammad who fell down. Thereafter Nazar Muhammad was brought to hospital, where he succumbed to the injuries. After registration of the case F.I.R. Exh.P/1-A, P.W.11 Muhammad Jan, Tehsildar, proceeded to the place of incident. He secured blood-stained earth vide Memo. Exh.P/9-A, arrested appellant and co-accused Adam. He got recovered weapon of offence i,e, hatchet at the pointation of appellant vide Memo. Exh.P/8-A. He also prepared the site plan (Exh.P/11-A. During investigation, appellant also got recorded his confessional statement before the Tehsildar, Panjgoor. I.O. Also took into possession the blood-stained clothes of deceased vide Memo. Exh. P/9-B and ultimately submitted incomplete challan Exh.P/11-B, before the learned Additional Sessions Judge, Panjgoor. At the trial, appellant and acquitted accused refuted the charge. As such, to substantiate the accusation, prosecution got examined: P.W.1 Jamaluddin, the complainant, who lodged F.I.R. Exh.P/1-A. P.W.2. Allah Bakhsh. P.W. 3 Rasool Bakhsh P.W.4. Rehmatullah. P.W.5 Muhammad Aslam P.W. 6 Dad Muhammad All are eye-witnesses P.W.7 Muhammad Aslam, Tehsildar Panjgoor. He got recorded the confessional statement of appellant as Exh.P/7-A and also issued Certificate Exh.P/7-B. P.W. 8 Nazar Ali, Levies Jamadar. In his presence appellant was arrested and he is also the marginal witness to the recovery of hatchet, effected vide Memo. Exh.P/8-A. P.W.9. Haji Riaz Muhammad. He is Mashir to recovery of bloodstained earth secured and blood- stained clothes of deceased were also taken into possession vide Memo. Exh.P/9-B. P.W.10. Dr. Aziz Anwar, examined the dead body of deceased and found following injuries on his person:-- He issued the Medical Certificate Exh.P/10-A. P.W.11. Muhammad Jan, Naib-Tehsildar Panjgoor. He investigated the matter and submitted the challan. Appellant and co-accused Adam were examined under section 342, Cr.P.C. Wherein they denied the prosecution case. They did not opt to give statement on oath as envisaged under section 340(2), Cr.P.C. And in defence got examined D.Ws. Dad Rehman, Nazar Muhammad and Murad. After assessing the evidence on record, the learned trial Court found appellant guilty of offence under section 302(a), P.P.C. And sentenced him to death, whereas acquitted the co-accused Adam, as specified herein above. Mr. Mohsin Javed, learned counsel for appellant contended as follows:--
(1) All the eye-witnesses are inter se related to the deceased and as such are interested witnesses, therefore, their testimoney cannot be relied upon.
(2) The confessional statement cannot be relied upon, as the same is the result of duress, pressure and coercion;
(3) Appellant has no intention to commit the murder of deceased. On the contrary, it was the complainant party, who went to the place of incident to attack appellant, and
(4) Motive has not been established. Mrs. Ashraf Abbass learned State Counsel, while opposing the appeal, argued that:
(1) The witnesses are natural and have witnessed the incident, and no previous enmity has been alleged against them, therefore, they have no motive to falsely implicate the appellant, and
(2) The complainant party was not aggressor, nor the appellant has acted in furtherance of his self-defence and prosecution has proved its case against appellant, beyond any shadow of doubt.
4. We have heard the learned counsel for parties and also perused the record of case minutely. Adverting to the first contention of learned counsel, that the eyewitnesses were inter se related to the deceased and they were interested witnesses, thus their testimony cannot be relied upon. It may be observed, that the prosecution case is, that complainant Jamaluddin (P.W.1) was informed by his sons that they had gone to Kor Dumbian to cut wood. There appellant alongwith other co- accused did not allow them to cut wood and rather cut the tyre of the Donkey Cart. The complainant alongwith P.W.2 Allah Bakhsh, P.W.3 Rasool Bakhsh, P.W.4 Rehmatullah, P.W.5 Muhammad Aslam and P.W.6 Dad Muhammad went to Kor Dumbian, to bring the Donkey Cart.
5. There they were confronted by the appellant and other accused persons, who told them, that they will not allow the complainant party to cut wood and the appellant gave one hatchet blow to Nazar Muhammad, who fell down. He was brought to the Hospital, where he succumbed to the injuries. All the six eye-witnesses have corroborated the contents of the F.I.R. And in unequivocal terms, deposed, that when they reached the place of incident, they were confronted by appellant and other accused persons, and in the meanwhile appellant gave hatchet blow to Nazar Muhammad who fell down. The above portion of the statements of witnesses could not be shaken by the defence, despite lengthy cross-examination and the witnesses stood firm to their statements. The defence has also failed to show that, previous enmity existed between them to falsely implicate the appellant and other accused persons in the commission of offence.
6. It is worth to note, that statement of a witness cannot be merely discarded for his being related to, the deceased or being interested, provided his statement is otherwise confidence inspiring and finds corroboration from other independent sources. Besides the presence of the eye-witnesses has not been disputed at the place of incident. The only plea taken by appellant is, that it was the complainant party who was aggressor and came prepared to attack the appellant and others, as they were not allowed to cut wood. Therefore, in the given facts and circumstances of the case, we are not inclined to agree with the learned counsel Mr. Mohsin Javed. In our considered opinion the statements of the eye-witnesses are confidence inspiring. They all stood firm in their testimony, despite lengthy cross-examination and intrinsic worth could not be shaken. Thus, their statements cannot be merely discarded that they are inter se related to deceased and are interested witnesses.
7. In this context, the Hon'ble Supreme Court in the case of Haroon alias Harooni v. The state and another 1995 SCM R 1627 while dealing with the question of appreciation of evidence, laid down a general rule, and observed that "statement of a witness must be in consonance with the probabilities fitting in the circumstances of the case and also inspire confidence in the mind of a reasonable prudent man. If these elements arepresent then the statement of the worst enemy of an accused may be accepted and relied upon without corroboration, but if these elements are missing, there statement of a pious man may be rejected without second thought." Reverting to the next contention of learned counsel, that the confessional statement has been recorded under duress and coercion, we are unable to agree with the learned counsel. It may be observed that P.W.7 Muhammad Aslam, Tehsildar, Panjgoor appeared in the Court and deposed, that he explained it to the appellant, that he is not under any obligation to give a statement and much time was given to him for reflection and despite observing all precautions, the appellant was prepared to record his statement. The defence has examined the Magistrate at length but could not extract anything favourable to appellant to show that confessional statement was recorded under duress or coercion. Thus in our considered opinion the appellant has given a true and voluntary confession. Reliance in this behalf is placed on PLD 1988 SC 25 and PLD 1996 SC 1. In the confessional statement, appellant stated that while the complainant party came to the place of incident they asked him as to why he had cut the tyre of Donkey Cart into pieces and started abusing him and embarrassed and humiliated him, due to which he gave a hatchet blow to deceased Nazar Muhammad.
8. It is well-settled principle of law, that if the confessional statement made by the accused is to be believed, then the same has to be considered in its entirety and the portion of the statement favouring the accused is not to be ruled out of consideration. It may be noted that the learned trial Court while believing the confessional statement, discarded the portion of confessional statement, wherein the appellant stated that he was abused and humiliated by the complainant, thereafter he picked up an axe and gave one below to deceased Nazar Muhammad. Thus the trial Court erred in law, while discarding the above mentioned portion of the confessional statement. Reliance is placed on 1992 SCM R 2047. Reverting to the other contention of learned counsel that in fact it was the complainant party who were aggressor and not the accused party. It may be observed, that though the complainant party went in a group to the place of incident, but nothing has come on record to show, that they were duly armed or had gone to attack the appellant. Conversely, it has been proved by the prosecution that in fact, it was the accused party, who was duly armed and did not allow the complainant party to cut wood. Even in the confessional statement, appellant has stated that the co-accused Khair Muhammad threw an axe towards him and he picked up the same and hit the deceased. It may further be observed that if the complainant party had gone armed to the place of incident they would have retaliated after the injury inflicted upon the deceased, but instead the complainant party took him to hospital. Thus the contention of learned counsel that it was the complainant party who was aggressor is repelled. Coming to the last contention of learned counsel that the appellant had no motive to kill the deceased. It may be observed, that prosecution case is that the complainant alongwith deceased and other eye-witnesses went to the place of incident to bring the Donkey Cart. It has also come on record, that they went to the place of incident in a pick-up as observed in the preceding paras, there was no previous enmity between the parties, nor the appellant had any motive to kill the deceased, particularly when many other persons from the complainant side were also present. The contention raised by learned counsel has substance, that the incident took place at the spur of the moment. As observed hot words were exchanged between the appellant and the complainant, due to which, appellant gave a hatchet blow to the deceased. It has further come on record, that the complainant party was empty-handed and while giving one blow, nothing deterred the appellant to repeat the same which further strengthen the argument of learned counsel, that he had no intention to kill the deceased. All the prosecution witnesses have deposed that when the accused persons were asked as to why they cut the tyre of Donkey Cart, they replied that they would not allow them to cut the wood and thereafter appellant gave a hatchet blow to the deceased, which hit him on his head. Therefore, the possibility could not be ruled out that before giving of hatchet blow to the deceased some hot words were exchanged between the parties, which led to this unfortunate incident. It may further be observed that in the confessional statement also the appellant has stated that before giving of hatchet blow the complainant party abused and humiliated them. Thus we are inclined to hold, that appellant had no motive to kill the deceased.
9. In view of the above discussion, it is held, that the prosecution has succeeded in proving the case against the appellant, who gave a fatal hatchet blow to the deceased which proved fatal and the statements of prosecution witnesses duly get corroboration from the recovery of hatchet, effected at the instance of appellant on the very first day of his arrest. The confessional statement further strengthens the prosecution case to the extent of giving hatchet blow by appellant.
10. It is held that appellant had no motive to kill the deceased Nazar Muhammad and the incident took place at the spur of moment without any premeditation and considering the fact, that appellant is an old man of 60 years age, we are inclined to alter the conviction and sentence awarded to by appellant is dismissed and the Murder Reference is answered in negative appellant from section 302(a) to that of 302(b), P.P.C. Accordingly the death section 382-B, Cr.P.C sentence is commuted to that of life imprisonment, with benefit of With the above modification in the quantum of sentence, the appeal filed DEATH SENTENCE NOT CONFIRMED.