1. AMANULLAH KHAN YASINZAI, J.---The appellant Kabir Ahmad alongwith acquitted accused Abdul Qadir and Muhammad Azeem Sindhi, were tried by the learned Additional Sessions Judge-I, Quetta, under sections 302, 34, P.P.C., for committing the murder of deceased Mazhar Munir Ahmad.
2. On conclusion of the trial, appellant Kabir Ahmad has been sentenced to death and under section 459, P.P.C. To suffer R.I. For 5 years and fine of Rs.200,000 in default of payment of fine to further undergo S. I. For 6 months and co-accused Abdul Qadir and Muhammad Azeem were acquitted of the charge under section 302, P.P.C. However, they were convicted under section 457, P.P.C., to suffer R.I. For 2 years and fine of Rs.50,000 each, in default of payment of fine to further undergo S.I.
3. For 3 months each vide impugned judgment dated 13-3-2000. 'The learned Additional Sessions Judge-I, Quetta, has made Reference No.2 of 2000 for confirmation of death sentence and the appellant Kabir Ahmad, has also sent Appeal No.21 of 2000 through the Superintendent Jail Machh, challenging his conviction. Thus by this common judgment we intend to dispose of both the matters.
4. The prosecution case is that P.W.1 Naveed Tabusam lodged report Exh.P.1-A with Police Station Saddar Quetta with the averments that he is a resident of Arbab Ghulam Ali Road and his brother- in-law namely Fiaz Ahmed, who is a school teacher, due to the winter vacation had gone to Dera Ghazi Khan and had locked his house. He alongwith his brother Mazhar Munir Ahmad used to sleep in the said house. On the night of incident, he alongwith his brother went to the said house and on opening the entrance lock of the door, same was found locked from inside. He alongwith his brother by scaling the wall entered the house and saw that the door, of one room was opened, in the meanwhile two persons came out from the house, one of them, who was holding a knife stabbed him in his stomach while his brother Mazhar Munir Ahmed came to save him. They also stabbed him and the accused person fled away from the spot. He informed his neighbour Mukhtar who brought them to the hospital. Mazhar Munir Ahmed succumbed to his injuries on the way to hospital. The concerned S.H.O. After recording his Farad---e-Bian in the hospital registered the case. Initially, investigation of the case was entrusted to P.W.7 S.-I. Anwar Ali. He took into possession the blood-stained clothes of the deceased and complainant Naveed Tabusam vide memos. Exh.P.4-A and Exh.P.4-B, prepared the inquest report Exh.P.7-A, went to the place of incident and prepared the site inspection report Exh.P.7-B. Thereafter, he was transferred and handed over the case file to the S.H.O. Who entrusted the investigation of the case to S.-I. Shamus---ur- Rehman's, for further investigation. He arrested the accused appellants. During the course of investigation, the appellant admitted his guilt before the Investigating Officer, thus he prepared disclosure memo. Exh.P.4-D and Farad-Maqua Wardat on the pointation of appellant was prepared. Identification parade was held in the police station vide Exh.P.4-A, whereby the complainant identified the appellant. Knife was recovered at the instance of appellant which was taken into possession vide memo. Exh.P.4-F. Thereafter he produced appellant before the Judicial Magistrate, Quetta, who recorded his confessional statement and the Investigating Officer, also arrested the acquitted co-accused and thereafter, submitted challan Exh.P.8-A, before Sessions Judge, Quetta, who transferred the same to the file of learned Additional Sessions Judge-I, Quetta.
5. Charge was framed under sections 302, 324, 452, 34, P.P.C., which was refuted by the appellant and the acquitted co-accused. To prove its case prosecution produced the following witnesses:-- P.W.1 Naveed Tabusam, reiterated the contents of Farad-e-Bian stating therein that he is residing near the house of his brother-in-law, namely Fiaz Ahmad, who had gone to Dera Ghazi Khan during winter vacation and to look after his house, he alongwith deceased Mazhar Munir Ahmad used to sleep there at night. On the night of incident i.e. 20-1-1999 at 11-00 p.m., he went to the house and after opening the lock of the door, the same was found locked from inside. He scaled the wall and saw that the door of the room was opened and two persons came out. The appellant attacked him at his left side and injured him. His brother came to save him, the appellant also stabbed him in his chest and also on the left side. Thereafter, he informed his neighbour Mukhtar who brought them to the hospital where his brother Mazhar Munir Ahmed died on the way and police recorded his statement Farad---e-Bian Exh.P.1-A. He further stated that the appellant was arrested and he was called to the police station for identification and, during identification parade he correctly identified the appellant.
6. P.W.2 Muhammad Ilyas, Judicial Magistrate, Quetta, he recorded the confessional statement of the appellant vide memo. Exh.P.2-A and issued certificate Exh.P.2-B.
7. P.W.3 Fiaz Ahmed, in his presence the appellant pointed towards the place of incident and identification parade was also held in his presence.
8. P.W.4 Azhar Hussain Shah, in his presence clothes of the deceased were taken into possession by the Investigating Officer vide memo. Exh.P.4-A and blood-stained clothes of the complainant vide memo. Exh.P.4-B. The appellant in his presence also pointed the place of incident and prior to that during the course of investigation, disclosure memo. Exh.P.4-E was also prepared and knife was recovered from the place of incident, which was taken into possession vide Exh.P.4-F.
9. P.W.5 Syed Shabahat Ali Shah, E.A.C-11, Quetta. In his presence, identification parade was held on 16-3-1999, whereby P.W.1 Naveed Tabusam identified the appellant and he prepared the identification parade memo. Exh.P.5-A.
10. P.W.6 Dr. Muhammad Amin Malghani, examined the deceased and injured complainant Naveed Tabusam. He issued death certificate of deceased Exh.P.6-A and medical certificate of complainant vide Exh. P.6-B.
11. P.W.7 Anwar Ali, he conducted the initial investigation of the case and thereafter, on his transfer, handed over the case-file to the S.H.O.
12. P.W.8 Nisar Ahmed Kazmi, S.H.O. Police Station Saddar Quetta, appeared on behalf of the Investigating Officer S.-I. Shamus-ur-Rehman's, as the latter had gone to Kosovo for training, therefore, was not available. He accepted the aforementioned documents and identified the signatures of S.I. Shamus-Rehman's, Investigating Officer of the case.
13. The appellant alongwith acquitted accused persons were examined under section 342, Cr.P.C.
14. However, he did not record his statement on oath as envisaged under section 340(2), Cr.P.C. Nor led any defence.
15. On conclusion of the trial, the learned Additional Sessions Judge-I, Quetta, convicted the appellant in the terms mentioned hereinabove and acquitted the remaining two accused persons of the charge.
16. Mr. Muhammad Qahir Shah, Advocate, volunteered to assist the Court on behalf of the appellant, as he could not afford a counsel. Learned counsel for the appellant contended that the learned trial Court has erred in relying upon the confessional statement partly and on the statement of P.W.1 has convicted the appellant to death sentence. Learned counsel further contended that the confessional statement has to be accepted in its toto or excluded from consideration in toto but the learned trial Court has partly relied upon the same. The question under section 342, Cr.P.C. Was not put to the appellant that he is solely liable for the death of the deceased. Learned counsel further argued that the Investigating Officer could not be examined, thus certain factual aspects of the case could not be clarified. In the alternate the learned counsel prayed that the death sentence be commuted to life imprisonment.
17. Mr. Arshad Mehmood, Advocate, appearing on behalf of the State has vehemently opposed the appeal.
18. It may be pointed out that the prosecution case rests on the confessional statement of the appellant and the statement of complainant P.W.1 Naveed Tabusam. Mr. Muhammad Qahir Shah learned counsel for the appellant argued that though in the confessional statement which is both inculpatory and exculpatory in nature. In the confessional statement he stated that the deceased was stabbed by the acquitted accused namely Abdul Qadir. The learned counsel further contended that since the complainant did not identify the co-accused at the time of incident, therefore, there was no further evidence to connect him with the commission of offence, but the learned trial Court had erred ht holding the appellant solely liable for the death of deceased, whereas in the confessional statement he has clearly stated that the deceased Mazhar Munir Ahmed was stabbed by the co-accused Abdul Qadir. Learned counsel drew our attention to the Farad-e-Bayan, which was recorded soon after the incident, wherein it has stated that the appellant and co-accused attacked upon the deceased.
19. It is well-settled principle of law that the retracted confessional statement has to be relied upon in its toto or excluded in its entirety. It cannot be partly relied upon and the portion exonerating the accused cannot be discarded. The learned trial Court has held that since the appellant alongwith co-accused went to the house of Fiaz Ahmed to commit robber, though had no intention to commit murder of the deceased and further held that in such circumstances, each and every person is liable for his own act individually; and rightly so, but while awarding the sentence to the appellant has put entire responsibility for causing death of the deceased upon the appellant, exonerating the co-accused from the charge due to lack of evidence. The exculpatory portion of the confessional statement has not been relied upon, qua involvement of acquitted accused for lack of further corroboration as the complainant did not identify the co-accused, but it has come on record that the deceased was also stabbed by the co-accused. It could not be said that as to which particular injury was fatal and caused the death of the deceased. Reference may be made to the case-law Bahadur Khan v. The State PLD 1995 SC 336, wherein following observation were made:-- "However, recognized well-principle is that confession has to be read as a whole and not by relying only on the inculpatory part of the statement. If the entire statement is to be read as a whole and if it is to be taken as correct it creates an impression that on payment of sale price of the mule there seems to have occurred some dispute and altercation between the parties. "
20. It appears from the facts and circumstances of the case that while committing robbery, the complainant and deceased entered the house; suddenly, which must have crated a panic. The appellant and co-accused to save themselves stabbed the complainant and the deceased to make their escape good. The same happened at the spur of the moment. It can be safely concluded that it was not premeditated nor the appellant and his companion had any intention to commit the murder of the deceased. We have given our anxious thought to the sentence awarded to the appellant, in our considered opinion the same is not proper. The learned trial Court has erroneously held that the appellant can only be held responsible for his own act, as there is nothing on record to infer that the appellant alongwith co-accused committed the murder of deceased in furtherance of his common intention. As observed hereinabove, it cannot be concluded with certainty as to which injury caused by the appellant or co accused proved fatal, besides the confessional statement has been believed by the learned trial Court to the extent of inculpatory portion and has excluded exculpatory portion, wherein the appellant has stated that deceased was stabbed by the co-accused Abdul Qadir and the said portion of the statement is corroborated by the Farad-e-Bayan, wherein it has stated that they attacked the complainant and the deceased. As far as veracity of the confessional statement is concerned, we are convinced that the same was recorded voluntarily and rings true. Besides the confessional statement of the appellant has been corroborated by the statement of P.W.1 Naveed Tabusam.
21. The learned counsel further contended that the Investigating officer who investigated the case wits not produced which caused serious prejudice to the appellant. Learned counsel contended that as per record, the appellant was arrested on 15-3-1999, and investigation of the case was almost completed on 16-3-1999, but the appellant was produced before the Judicial Magistrate for recording of confessional statement after a delay of two days, such delay has not been clarified. It may be pointed out that though the Investigating Officer is a very important witness for the prosecution, as well as for the defence side. He was not even given up, but was not produced as he had gone to Kosovo for one year. Nothing hits come on record, as he proceeds to Kosovo, and when he was expected return to Pakistan. It may be observed here that sine we have already inclined to believe the confessional statement and the statement of the investigating Officer, therefore, in the instant case in our considered opinion; non-examination of the investigating Officer would not vitiate the trial. Thus keeping in view the circumstances of the case and the case- law relied upon; we are convinced to hold that the appellant cannot be held solely responsible for the death of the deceased, as he was also stabbed by the co-accused Abdul Qadir, who has already been acquitted of the charge due to the lack of evidence. Besides, the murder or the deceased as discussed above, was neither pre-planned nor premeditated. Thus in such circumstances, the death sentence awarded by the learned trial Court is commuted to life imprisonment. The sentence awarded under section 459, P.P.C. Is also upheld. However both the sentences are ordered to run concurrently.
22. With the above modification in the sentence, the appeal is dismissed. However the murder reference is answered in negative.