' SYED JAMSHED ALI, J.---This appeal, with the leave of this Court is directed against the judgment dated 18-10-2000 of the learned Lahore High Court, whereby conviction of the appellant under section 302(a), P.P.C., sentence of death and a fine of Rs,30,000, vide trial Court judgment dated 11- 8-1994 for the murder of Tariq Sharif in case F.I.R. No,107 of 1991 registered on 22-7-1991 at Police Station Kotwali, District, Gujranwala, was maintained with the alteration of the conviction under clause (b) instead of clause (a) of section 302, P.P.C.
2. The prosecution case, as per the F.I.R. Was, that the appellant had borrowed a sum of Rs,2000 from the deceased. 3/4 days prior to the occurrence, on the demand of the deceased return of his money, the two had a scuffle, the appellant took it as an insult and had threatened to take a revenge. Accordingly, on 21-7-1999, at about 10-30 p.m. While the deceased was sitting along with Muhammad Younas, (P.W.12) and Muhammad Saeed (not produced) in the "Bazar Churigaran" on a "Phatta" the appellant appeared from the "Gali" Ghulam Ghous with a Khanjar and gave repeated blows to Tariq Sharif who was rushed to the hospital by Khalid Sharif the complainant, his brother, Muhammad Saeed, and Ghulam Sarwar but he succumbed to his injuries.
3. On trial, the prosecution relied on the ocular testimony, recovery of blood-stained churri, and the motive. The defence plea was total denial. The appellant, however, stated that he had asked the deceased not to sit in front of the girls school at the corner of the street prior to the occurrence, it was only on account of suspicion that he was involved in this case and the P.Ws. Had deposed against him on account of relationship with the deceased. He did not produce any defence evidence. On consideration of the evidence produced in the case, the learned trial Court convicted and sentenced the appellant as stated above which was maintained by the High Court.
4. The appellant approached this Court in Criminal Petition No,610-L of 2000 in which leave was granted on 16-4-2001, in the following terms:-- "We have heard the learned counsel for the petitioner at length as well as learned counsel for the complainant. The points raised by learned counsel for the petitioner are that F.I.R. Was lodged by Khalid Sharif real brother of the deceased but he had not mentioned anywhere that he was present at the spot or had witnessed the occurrence. Learned counsel further pointed out that this fact coupled with the circumstance that occurrence had taken place at 10-30 p.m. Whereas F.I.R. Was got registered on the following day at 3-30 p.m. This also indicates that first informant Khalid Sharif, real brother of the deceased, was not present at the spot. If he was present at the spot, he should have got the case registered immediately thereafter. It is further stated by learned counsel for the petitioner that Doctor Jameel Ahmed Mirza P.W.1 in his statement before the Court stated that it was one Ghulam Sarwar who brought the injured to the hospital for treatment. It was argued that if the first informant was present at the spot at the time of occurrence, it is natural that he would take the injured to the hospital.,
5. Apart from the points noted in the leave granting order Mian Aftab Farrukh, Senior Advocate Supreme Court the learned counsel for the appellant, contends that according to F.I.R., it was one Muhammad Sarwar who had taken the deceased to the hospital but he was not produced.
According to him, he would have been able to depose the place of occurrence from which the deceased was removed to the hospital. Muhammad Saeed also went to the hospital with Muhammad Sarwar but even he was not produced. He contended that the allegation according to F.I.R., was that the appellant gave multiple `Khanjar' blows while a `Churri' was recovered allegedly at the pointation of the appellant, the police station was at a distance of 2-1/2 furlong, the medical officer examined the deceased (then injured) at 10-45 p.m. But the complainant party did not inform the police and according to the Investigating Officer he had received information on wireless on which he had reached the hospital, in the F.I.R., the complainant did not assert to be an eye-witness although the Courts below had so erroneously assumed. By referring to the site plan, he contended that deceased and the three others referred to above were sitting so close to each other, that it was not possible for the appellant to inflict injures on the person of the deceased where these were found. He next contended that the conduct of Muhammad Younas, Muhammad Saeed and the complainant, (if at all he was present there) not to intercept the appellant and save the deceased was unnatural and therefore, their testimony ought to have been rejected.
Muhammad Younas and Muhammad Saeed claimed to have lifted the deceased from the place of occurrence for being taken to the hospital and their clothes were stained with blood. Muhammad Younas (P.W.12), had stated that he had shown his clothes to the police. By referring to the inspection note, Exh.D.C., and the site plan Exh. P.C. He contended that although a tube was shown in the site plan it was missing from Exh.D.C. He further contended that in fact, it was un witnessed occurrence, Muhammad Sarwar had taken the deceased to the hospital from some other place.
Thereafter; the complainant was informed and he along with Muhammad Saeed and Muhammad Younas had reached the hospital.
6. He lastly contended that according to the medical evidence, the deceased had received two injuries but the possibility that the second injury was the result of the first, could not be ruled out.
Therefore, not only it was a case of single injury but also that since his arrest, the appellant is in the judicial lock-up for about last 16 years including 6 years in the death cell and according to observation of the trial Court, the motive remained shrouded in mystery. He, accordingly, pleads clemency for the appellant in the matter of sentence if, according to him, this Court is not persuaded, to interfere with the conviction. In support of this plea, he placed reliance on Mehmood Rashid and others v. The State 2003 SCM R 581, Muhammad Ahsan alias Aksan v. The State PLD 2006 SC 163.
7. Sardar Muhammad Latif Khan Khosa, Advocate Supreme Court appearing on behalf of complainant, contends that the submissions made by the learned counsel for the appellant are only conjectural. It is a case of a single accused and Muhammad Younas (P.W.12) a Mohallandar, was a natural witness and had no motive to falsely depose against the appellant. Explaining the delay in lodging the F.I.R., he referred to the statement of doctor Abdul Malik Sheikh, (P.W.6) to contend that 12 pints of blood were required for the operation of the injured/deceased, during the operation seven pints were actually given to the deceased and he has been arranging it. In the circumstance the medical officer marked Muhammad Sarwar as the person bringing the patient. It was only a formality not affecting the merits of the case. He submits that arrangement of blood and operation of the injured was considered more important than lodging a complaint with the police. As to the place of occurrence he submits that Investigating Officer had collected the bloodstained earth from the place of occurrence as alleged in the F.I.R. And it was not challenged.
As far as Ghulam Sarwar is concerned, according to him, since he was not an eye-witness, his production was not necessary. As far as description of the weapon is concerned, he maintained that it was not a material discrepancy. In any case, the weapon recovered from the appellant was stained with human blood. As far as the blood-stained clothes of Muhammad Yunas and Muhammad Saeed are concerned, his submission was that it was for the Investigating Officer to take into possession their clothes and any lapse or omission on his part cannot have the effect of ablating the credibility of the prosecution case.
8. As far as quantum of sentence is concerned, he maintained that it was a brutal murder and a young man was done to death by repeated blows. The motive being clear the normal penalty of death, which is the rule, was rightly handed down to the appellant and no mitigating circumstances exists for lesser penalty. Reliance was placed on Jawed Malik v. The State 2005 SCM R 49, Iftikhar Ahmad v. The State 2005 SCM R 272, Syed Hamid Mukhtar Shah v. Muhammad Azam and 2 others 2005 SCM R 427.
9. Mr. Dil Muhammad Tarar, Advocate, represented the State. He submits that the ocular account is duly corroborated by the medical evidence, recovery of blood-stained Churri and the motive which was proved by P.W.9, and therefore, no case for interference is made out.
10. We have considered the submissions made by the learned counsel for the parties. The learned two Courts, after due appraisal of the evidence, came to the concurrent conclusion as to the guilt of the appellant. The Court is not expected to substitute concurrent findings of fact of the two courts in these proceedings. In this case all submissions made pertain to the domain of appreciation of the evidence. And, we find no error of approach. However, we have examined the record in the light of the submissions of the learned counsel for the parties. The lodging of F.I.R. At 3-30 a.m. Cannot, in the circumstances, be said to be delayed because attempt to save the life of a person was rightly considered to be more important than to rush to the police station, particularly in this case the real brother of the deceased (the complainant) had to arrange 12 pints of blood. This must have consumed time and effort.
11. The place of occurrence was not disputed by the defence during the trial, and even if presence of the complainant at the spot at the time of occurrence was excluded, Muhammad Younas (P.W.12), a natural and independent witness, fully supported the prosecution case in all material particulars and we, see no reason to disbelieve him. The "Churri" recovered at the pointation of the appellant was stained with human blood and the medical evidence fully supported the prosecution case. We see no reason to take a view different than the one taken by the learned two courts. The discrepancies in the description of wear of offence (a Khanjar or "Churri"), the inspection note and the site plan, conduct of P.Ws. Are not material to discredit the prosecution version.
12. As far as the quantum of sentence is concerned, we see no mitigating circumstance. It is not a case of single injury or the motive remaining shrouded in mystery because it was proved by P.W.9.
Therefore, the only plea for mitigation is confinement of the appellant in the death cell for about 6 years. This by itself, in our view, does not constitute a sufficient mitigating circumstance to overturn the normal penalty of death.
13. The judgments relied upon by the learned counsel for the appellant have been examined. In the case of Mehmood Rashid, supra this Court converted the death penalty into life on two considerations.
' Firstly, that the convict had been in the death cell for ten years and secondly he had acted on the instigation of his father. There is no such factor in the case in hand. In the case of Muhammad Ahsan supra, death by "Churri" blow was visited with imprisonment for life which was upheld by this Court. This too is not relevant to the controversy.
14. In Muhammad Yar alias Kukoo v. The State 2004 SCM R 937, the plea of mitigation of sentence from death into life was raised before this Court on the ground that since the conviction the appellant therein was in the jail as condemned prisoner. The period involved in the said precedent case was about nine years. The plea was repelled with the following observations:-- "The detention of the petitioner as under trial prisoner during the trial and as convict in the jail pending disposal of the appeal before the High Court and this petition before this Court, would not be an extenuating and mitigating circumstance."
' In making the above observation reliance was placed on Maqbool Ahmad and others v. The State 1987 SCM R 1059, in which it was observed "that the detention of convicts in jail by itself to be no mitigating circumstance entitling persons convicted for murder to lesser penalty or reduction of sentence. In Sultan and others v. The State 1987 SCM R 1177, the plea for mitigation based on confinement of the condemned prisoners in the death cell for a number of years was not accepted although on other considerations the death sentence of the convicts was altered. Reference may also usefully be made to State of U.P. v. Dharmendra Sindh and another etc. (AIR 1999 SC 3789). In the said case the Allahabad High Court had refused to confirm the death sentence only on the ground that convicts had been in the death cell for more than three years. The Indian Supreme Court interfered with the following observations:-- "The High Court has erred in coming to this conclusion both factually as well as inferentially. First of all these respondents were not in death cell for 3 years nor is there a law which says that a person in death cell for 3 years ipso facto is entitled for commutation of death sentence. While it is true that prolonged trial or execution of the death sentence beyond all reasonable period may be a ground for commuting the death sentence in a given case, it will be highly erroneous to lay down as a principle in law or draw an inference on fact that awarding of death sentence is improper in cases where accused persons are in custody for 3 years or more, even though the facts of the case otherwise call for a death sentence. If the view taken by the High Court in this case is to be accepted as a correct principle then practically in no murder case death sentence can be awarded, since in this country normally a murder trial and confirmation of death sentence takes more than 3 years. This Court speaking through a constitution bench in Smt. Triveni Ben v. State of Gujarat (1988) 4 SCC 574; (AIR 1989 SC 142: 1989 Cri.LJ 870) has held: "No fixed period of delay could be held to make the sentence of death in executable".
15. For what has been stated above, we see no merit in this appeal which is dismissed. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.