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Criminal Appeal No. 218 of 1966, decided on 27th September 1967.

, S. 201-Confession only evidence connecting accused with crime-To be accepted as a whole unless there is evidence to contradict some parts. of it or is grossly unacceptable.

, S. 201 read with S. 304-A Ofence under S. 201, Part Ill-Sentence of only one year's R. 1. could be passed against accused, in cbtances of case.

Muhammad Hayat Junejo for Appellant.

S. Murtaza Husain for the State.

Date of hearing : 27th September 1967 ..

The appellant inn this case was tried for an offence under section 302, P. P. C., in the alternative under section 201, P. P. C. He was convicted under section 201, P. P. C. and sentenced to suffer rigorous imprisonment for seven years and pay fine of Rs. 50 or in default rigorous imprisonment for three months more, He has filed this appeal.

2. The facts of the prosecution case briefly are that on the 17th of August 1965, while Kauro Khan Head Constable P. W. 3 was on patrol, he received spy information with regard to deceased Muhammad I: in having been done away with by the appellant. He consequently went to the house of the appellant and on making inquiries from him arrested him under section 54, Cr. P. C. and took him to the police station at Padidan. He also lodged first information report Exh. 6-A on behalf of the State on the 17th of August 1965, at 9 p.m.

The police during the course of investigation interrogated the appellant. The appellant made a statement consequent upon which discovery of the dead body of Muhammad Din was made. The appellant took the police and the Third Class Magistrate Mr. Pir Bux P. W. 2 and pointed out the place on the 18th of August 1965 from where the dead body of deceased Din Muhammad was dug out. Mashirnama Exh. 5-A was prepared in the presence of Gama P. W. 4 and mashir Muhammad Jurial P. W. 5. The appellant also produced a licensed gun and an empty cartridge which were secured under mashirnama Exh. 8-B in the presence of mashir Muhammad Jurial. The appellant also made a judicial confession on the 19th of August 1967, Exh. 12-A, which was recorded by Mr. Akhtar Ali, Civil Judge and First Class Magistrate, Naushahro Feroze P. W. 9. After the usual investigation was completed, the appellant was challaned.

4. The appellant, when questioned, denied the allegations made against him. He has examined no witness in defence.

5. The question whether Muhammad Din sustained injuries and died on account of them is riot disputed. The evidence of Dr. Ram Chand, Exh. 15-A, clearly establishes that the deceased had injuries on his person which were from a firearm and which were ante-mortem and sufficient in the ordinary course of nature to cause death. The witnesses have also established this issue beyond any doubt.

6. The only question that needs consideration in this appeal is as to whether the appellant is guilty of the offence with which he is charged. The prosecution for ibis purpose have relied, in main, upon the judicial confession Exh. 12-A made by the appellant on the 19th of August 196,5, which was recorded by Mr. Akhtar Ali,, Civil Judge and F. C. M., Naushero Feroze. The evidence of Mr. Akhtar Ali and the circumstances in which the confession was recorded clearly indicate that the confession was voluntarily -made. The confession, inter alia, shows that the death of the deceased was accidental because the appellant, after finishing his part of duty of keeping guard over the houses in the village, had slept with his loaded gun under his head. According to the confession, he felt that somebody was removing the gun from under his head on account of which he caught hold of the gun with the result that his band fell on the trigger resulting into the gun getting fired. It is further said in the confession that the shot fired from the gun in these circumstances hit the deceased on his stomach and brought. about his death. The appellant has also in his confession said that after he found that the deceased had died, he felt apprehensive that he would be dragged in a murder case. He, therefore, dug a pit and buried the dead body there after wrapping it into a blanket. The learned Sessions Judge has not accepted the first part of the confession holding it to be false.. Relying upon the second part of the confession he has held the appellant guilty of screening himself as an offender and from being prosecuted oil a charge under section 302, P. P. C. which is punishable with death or transportation for life. The learned counsel for the appellant has argued that the learned Sessions Judge was not justified in law in discarding the first part of the confession. The confession, if it is the only evidence on which the conviction of the appellant has to be founded, has to be accepted as a whole. I t is by .now quite well settled that the confession which is the only evidence connecting the appellant with the crime, then the confession has to be accepted as a whole unless there is evidence to contradict some parts of it or unless the confession is so grossly unacceptable that no man of reason able mind would accept it. In this particular case the appellant has pleaded that the gun went off accidentally resulting into the death of the deceased. There is no evidence to contradict that the gun was not fired accidentally. In these circumstances, it was not proper to have discarded the first part of the confession. If the confession is accepted as a whole, then it is conceded that the offence of which the appellant could have been convicted would fall under section 304-,A, P. P. C. Since he has not been convicted under section 304-A and no appeal against his acquittal has been filed, the question of convicting him now under that section does not arise. The confession has been retracted but it is substantially corroborated by the production of the licensed gun and an empty cartridge which were secured under mashirnama Exh. 8 B in the presence of Muhammad Jurial P. W. 5. It is also supported by the evidence of Muhammad Din P. W. 10, the Ballistic Expert, who has stated that the empty cartridge secured from the appellant and sent to him was found by him to have been fired from the gun sent to him. The confession is also supported by the dead body having been exhumed at the instance of the appellant. The dead body was dug out in the presence of Pir Bux, - Third Class Magistrate P. W. 2 and mashirnama P. W. 4 and Muhammad Jurial P. W. 5. The retracted confession being corroborated by the circumstantial evidence, would have been sufficient for holding the appellant guilty for an offence under section 304-A, P. P. C. The question of his conviction under that section now, as I have already said, does not arise. The only question 1 have to decide is that in the event of an offence under section 304-A having been committed on the evidence brought on record, whether the appellant could be convicted under section 201, Part I, P. P. C. Section 201 reads as under :-

"201.-Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear; with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows or believes to be false shall, if the offence which he knows or believes to have been committed is punishable with death, be punished with imprison ment of either description for a term which may extend to .seven years, and shall also be liable to fine ;

and if the offence is punishable with transportation for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to, fine ;

aid if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence, for a term which may extend to one-fourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both."

The above section would indicate that the appellant could not be convicted under section 201, Part I because the offence under section 304-A is not punishable with death. He also could not be convicted under Part 11 of section 201 because section 304-h is not punishable .with transportation for life. The offence under section 304-A being punishable maximum with rigorous imprison ment for four years, the only offence of which the appellant can be said to have been guilty would be one under section 201, Part III. In that case the sentence that could have been passed on the appellant was maximum rigorous imprisonment for one year only. I consequently alter his conviction from 201, Part I to 201, Part III and reduce his sentence from rigorous imprisonment for seven years and fine of Rs. 50 to rigorous imprisonment for one year and fine of Rs. 50 or in default rigorous imprisonment for three months. Since the appellant has already undergone the rigorous imprisonment for more than one year he would be set at liberty forthwith unless he is .required in any other case.

7. With this modification, the appeal filed by the appellant stands dismissed.

Order accordingly.

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