SARDAR TARIQ MASOOD, J.---Appellant Haider son of Muhammad Khan was tried by the learned Additional Sessions Judge, Mandi Bahauddin in case F.I.R. No. 170 dated 12-5-2004 registered under sections 302/324, P.P.C. At Police Station Qadir Abad District Mandi Baha-ud-Din. The learned trial Judge vide judgment dated 29-6-2005 convicted Haider appellant under section 302(b), P.P.C. And sentenced him to death as Ta'zir. He was further directed to pay Rs.50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased, recoverable as land revenue. He was further convicted under section 324, P.P.C. To 10 years' R.I. And a fine of Rs.20,000 or in default to further undergo for two years' SI. He was further directed to pay compensation of Rs.10,000 under section 544-A, Cr.P.C. To the injured.
2. Appellant Haider has filed Criminal Appeal No. 1323 of 2005 against his conviction and sentence whereas the learned trial Court has sent a reference (Murder Reference No. 622 of 2005) under section 374, Cr.P.C..To this Court for the confirmation of death sentence or otherwise of Haider appellant. We propose to dispose of both these matters by this single judgment.
3. Brief facts of the case as disclosed by P.W.5 Muhammad Arshad complainant in his statement Exh.PA are that on 12-5-2004 at 2-00 a.m. (mid-night) he along with his family members was sleeping in the courtyard and woke up after having heard the foot-voice and saw that the appellant Haider armed with a Toka came there and inflicted Toka blow upon the mouth of deceased Khyzer Hayat who fell while facing downward and then the accused gave repeated Toka blows upon the different parts of his body. Irshad Bibi (P.W.6) in order to save the deceased laid on the person of Khyzer Hayat but the accused gave Toka blows to Irshad Bibi hitting on different parts of her body. The victim Kyizar Hayat died at the spot.
Motive behind this occurrence was a petty quarrel between the deceased and appellant over damaging of the crop 2/3 days prior to the occurrence.
4. After completion of investigation, the challan was submitted. The accused was charge-sheeted, to which, he pleaded not guilty and claimed trial. The prosecution in order to prove its case examined 10 P.Ws. In all and tendered documentary evidence.
PW.3 Muhammad Akram Ayaz M.O. RHC, Bhaikhu Mor, on 12-5-2004 medically examined Mst. Irshad Bibi and found following injuries on her person.
(i) An incised wound 20 cm x 2 cm across forehead from level of lateral angle of right eye to left ear, exposing underlying bones.
(ii) An incised wound 18 cm x 4 cm on posterior aspect of left forearm exposing underlying bones 13 cm above wrist joint.
(iii) An incised wound 5 cm x 1 cm on posterior aspect of right shoulder exposing underlying bonds.
(iv) An incised wound curved 15 cm x 4 cm on posterior aspect of lower part of right side of cheat, exposing underlying bonds, 4 cm below the scapula and 3 cm from midline.
All the injuries were kept under observation and X-Rays were advised'. All the injuries were caused by sharp-edged weapon. The probable duration of injuries was within 24 hours.
PW.11 Dr. Ijaz Ahmad Mughal, M.O. THQ Hospital, Phalia on 12-5-2004 conducted the post mortem examination on the dead body of Khyzar Hayat and found the following injuries on his person:--
(i) There was incised wound 5 cm x 2 cm on left side of the lower lip cutting it into two parts, mandible bone was exposed.
(ii) There was incised wound 13 x 2 cm on right side of occipital region of the head. Bone was exposed. The skull bone was cut. The wound was 7 cm from right ear.
(iii) There was incised wound 16 cm x 2 cm cutting skin of the skull posteriorly and cutting muscle at base of skull and blood vessels, injuring the right ear posteriorly cutting the skull at ,base and exposed spinal card (Nerves system). Injury was 9 cm below injury No.2.
(iv) There was incised wound 16 cm .x 5 cm going up to the V. Column and cutting the vertebra but not exposing spinal card 1-1/2 cm below to injury No.3 on the back of neck.
(v) There was incised wound 13 cm x 2 cm on posterior side of the left scapular region 16 cm below left ear, muscle and bone cut.
(vi) There was an incised wound 4 cm x 1 cm muscle exposed 1-1/2 cm below injury No.4.
(vii) There was incised wound 20 x 3 cm on posterior aspect of left side of the chest on left scapular region, all muscles on scapula cut, scapula bone is also cut into two parts originally. The injury is 5- 1/2 cm below injury No.4.
(viii)There was incised wound 10 cm x 2 cm chest bone exposed, the wound is 5-1/2 cm below injury No.7 on left side of back of chest.
(ix) There was incised wound 13 cm x 2 cm which was present on back of right side of chest. The wound was just above right scapula and was muscle deep.
(x) There was incised wound skin deep 7 cm x 1 cm on back of right side of chest which was 2 cm below injury No.9.
(xi) There was incised wound skin deep 8 cm x 3 cm on left side of back of chest which was 13 cm from injury No.7.
(xii) There was skin deep wound 7 x 3/4 cm which was 6 cm lateral to the base of left side of the neck on top of left shoulder.
(xiii)There was incised wound bone exposed 2 cm x 2/3 cm which was on right side of forehead and was 9 cm from the right ear.
(xiv)There was 15 cm x 7 cm incised wound on latero-posterior aspect of left arm, left humorous exposed, all muscles and blood vessels cut at the site of wound. The wound was 13 cm below from the top of left shoulder joint.
(xv) There was incised wound skin deep 5 x 1 cm on left arm lateral aspect which was 1 cm below injury No.14.
(xvi)There was 4 x 1-1/2 cm bone exposed incised wound on posterior aspect of left wrist joint.
(xvii) There was incised wound 5 x 3 cm on posterior aspect of left forearm, left ulna was cut into two parts, wound was 16 cm above from injury No.16.
(xviii) Incised wound muscle deep 3 x 1/2 cm which was 1-1/2 cm anterior superior to injury No.17.
(xix) There was incised wound 3 x 3 cm on right hand first metacarpal bone was cut at its distal 1/3rd.
(xx) There were three muscle deep wounds on index finger right hand anterior aspect.
(xxi) 5 cm x 1-1/2 cm bone exposed wound which was 3 cm above injury No.2 on the head.
(xxii) There was skin deep wound 1-1/2 cm x 2 cm on anterior aspect of right knee joint.
In the opinion of the Doctor injuries Nos. 2,3,4,5,7,14 and 21 were cause of death which damaged the brain (vital organs) and caused severe haemorrhage, shock and death. In ordinary course of nature of death, these injuries were sufficient to cause death. The other injuries 1, 6, 8, 9, 10, 12, 13, 15, 16,17, 18,19, 20 and 22 had also contributory role to death. The injuries Nos. 1 to 22 all were caused by' sharp-edged weapon and were ante-mortem in nature.
Probable time that elapsed between injuries and death was 1/2 to 1 hour and between death and post mortem was 12 to 24 hours.
P.W.5 Muhammad Arshad is the complainant of this case who supported the contents of F.I.R.
Exh.PA/1.
P.W.6 Mst. Irshad Bibi is the injured witness of this case. She fully supported the version of F.I.R. P.W.10 Ashiq Sarwar Inspector conducted investigation of this case.
Remaining witnesses are formal in nature.
Learned DDA tendered in evidence the reports of Chemical Examiner Exh.PM, Exh.PN and reports of Serologist Exh.PP and Exh.PQ and closed the prosecution case.
5. The statement of Haider under section 342, Cr.P.C. Was recorded. He refuted the allegations levelled against him and professed his innocence. In answer to question, "Have you anything else to say?", Haider appellant stated as under:-- "I am innocent. On the fateful night the victim was sleeping in open place and some unknown assailants caused his murder and on the next day I was arrested from my house. I did not commit the occurrence."
In answer to question, "why this case against you and why the P.Ws. Have deposed against you?, Haider appellant stated as under:- "I do not know. There is no enmity between us".
The appellant did not opt to record his statement on oath under section 340(2), Cr.P.C. Nor produced any evidence in his defence.
6. Learned counsel for appellant contended that this is a case in which the occurrence had taken place at 2-00 a.m. i.e. In the mid-night; that no source of light was described and it was only stated that there was moon lit night at the relevant time. It is contended that nothing has been brought on the record to indicate that sufficient light was available at the relevant time in which the identity of the accused was possible. Learned counsel has strongly argued that this is a case in which only two eye-witnesses appeared in the Court. The complainant Arshad was the brother of the deceased, whereas, Mst. Irshad Bibi was the sister of the deceased; that no independent witness was produced; that the other witness Anwar who was an independent witness and was stated to be a guest was given up by the prosecution. It is contended that non-production of the independent witnesses is a circumstance which goes in favour of the appellant; that medical evidence suggests that the injured was medically examined at 6-30 a.m. Whereas; the F.I.R. Was recorded at 9-45 a.m. And in the MLR it is mentioned that the police took the injured to the Doctor, so no reason for getting the F.I.R. Recorded after such a belated stage has been brought on the record and in these circumstances, the contents of the F.I.R. Cannot be considered as a circumstance, going against the appellant; that in the prosecution case it has been admitted that even the appellant was living in the same vicinity in the same Dera and his wife and other relatives were also present at the time of occurrence. Similarly, the other relatives of the P.Ws. Were also present but none of them was produced to substantiate the version taken by the complainant. It is contended that in fact the occurrence took place in the dark hours and some unknown person has committed the alleged offence in which due to suspicion and enmity the appellant has been involved. Learned counsel further contended that presence of the 22 injuries on the person of the deceased, leads to an inference that some thing graver had happened. Learned counsel contends that the motive alleged by the prosecution is not sufficiently proved; that Mst. Irshad Bibi while appearing in the Court admitted that after receiving so many injuries, she fainted and gain consciousness when she was in the hospital and her statement was not recorded on 12-5-2004 rather it was recorded on 13-5-2004 and there is nothing on record to show that she was not tit to make statement at the relevant time; that the recovery of the blood-stained Toka on the pointation of the appellant after a delay of 9-days is also a circumstance which indicates that the prosecution was bent upon to concoct evidence against the appellant; that no reason for the appellant to keep the blood-stained Toka, has been brought on the record; that the place of the occurrence is a deserted place which is just on the bank of the river and there was no boundary wall around the Dera and all these persons were living in the same vicinity in a very big area and as such the presence of the complainant at the place of occurrence is highly doubtful; that deceased was given 22 injuries and for infliction of such number of injuries a considerable time must have been consumed in the presence of so many witnesses but no one had intervened as such, this circumstances creates doubt; that sister of the appellant was wife of the deceased and even she was not produced by the prosecution, although she was natural witness and she was also one of the heirs of the deceased; that the dead body was found by the I.O. On a cot, whereas the witnesses admitted that during the occurrence the deceased fell on the ground; that the cot was not taken into possession and similarly, no blood was recovered from the cot, so, the place of occurrence remains shrouded in mystery.
7. On the other hand learned DPG assisted by learned counsel for the complainant states that in this case the allegation of committing murder and making the murderous assault upon Mst. Irshad Bibi P.W.6 is levelled only against the appellant and there is no other accused mentioned in the F.I.R.; that the occurrence has taken place in the Dera where the complainant, deceased, injured lady and even the accused were residing; that both the parties were closely related so, the identity of the accused is not a matter in issue; it is further contended that in this case, only Toka has been used and for using such a weapon the accused must be close to the deceased and injured and as such from close distance the identity of the accused is proved; it is mentioned in the F.I.R. That the occurrence was seen in the moon lit night and there is nothing on the record that the appellant was not available at the relevant time; that the occurrence had taken place in the Dera, so the natural witnesses were produced by the prosecution; that the delay in lodging the F.I.R. Is natural in the given circumstances. It is contended that the Dera was admittedly situated at an isolated place on the bank of river and as it was a mid night occurrence, so for reaching to the hospital certain efforts were to be made for arranging transport; that according to the Doctor the injured was in a precarious condition when she reached in the hospital; that the doctor who conducted the post mortem examination has observed 22 sharp-edged weapon injuries on the person of the deceased and most of the injuries were on the vital parts of the body of the deceased and, similarly, the injured lady received sharp edged weapon injuries and the doctor has admitted that the injuries could have been the result of only a heavy sharp edged weapon like Toka; that ultimately the Toka was recovered on the pointation of the appellant and as such the recovery of blood-stained Toka corroborates the ocular account. Similarly, the medical evidence is just in line with the ocular account. Learned DPG has strongly emphasized that appellant was closely related to complainant who was brother of husband of his sister and there is nothing to indicate that why they would leave the real culprits and would involve the appellant who was related to them. It is contended that both the eye-witnesses while appearing in the Court narrated the same motive and they were not cross-examined on this point. It is contended that there were 26 injuries in all on the person of the deceased and the injured P.W. And to inflict such a big number of injuries, a considerable time is required and in such a span of time it is not possible that the identity of the accused still remains to be disputed, especially when both the parties were closely related inter se and were living in the same vicinity; that witnesses were not cross-examined regarding the presence of the moon light and in such a situation, it can be presumed that presence of moon light has been admitted by the appellant's side. It is also contended that as this is a case of a single accused, and presence of so many injuries could have been assigned to so many accused but only the appellant has been shown as an accused and this is the circumstance which indicates that the witnesses are truthful. It is contended that 22 injuries were caused to the deceased and dimensions of the injuries indicates that same were inflicted with full force because dimensions of certain injuries were more than 10 ems and as such large number of injuries only indicates that the appellant had acted in a very brutal and merciless manner; that as close relatives of the appellant were also available at the place of occurrence but no one was produced by the appellant, hence, such a circumstance indicates that no body was ready to make statement in his favour. The real sister of the appellant who was wife of the deceased could have compounded this offence but she did not come forward and such a circumstance indicates that it was alone the appellant who had committed this occurrence in such a brutal manner, in presence of his real sister and even she was not ready to make a statement in his favour; that appellant was a man of grown up age of 35 years and he cannot be expected to be an insane person and that there is nothing on the record to provide mitigating circumstance qua the sentence of the appellant, hence, appellant is not entitled to any relief.
8. We have heard the arguments of learned counsel for the parties as well as the learned DPG for the State minutely with their able assistance and perused the record carefully.
9. Although, the eye-witnesses which are mentioned in the F.I.R. Are Muhammad Arshad complainant, Mst. Irshad Bibi injured, Hussain Bibi and Muhammad Anwar but the prosecution examined only Muhammad Arshad complainant as P.W.5 and Mst. Irshad Bibi as P.W.6. These two witnesses gave the ocular account of the occurrence. Both the witnesses are residents of the same Dera. It is the case of the prosecution that the deceased along with above mentioned witnesses and accused Ghulam Haider appellant were living in the said Dera. However, the Dera of Ghulam Haider is adjacent to the Dera of Khyzer Hayat deceased. The said Dera is at the Bank of river Chinab. As the witnesses of the ocular account are residents of the same Dera hence their presence at the place of occurrence cannot be doubted. They being inmates of the same Dera are the most natural witnesses. Although, it is suggested to Muhammad Arshad complainant/P.W.5 that he was not present at the Dera on the said night but it was not suggested as on such odd hours of the night where the said witnesses could be. Ordinarily his presence at the place of occurrence, especially, at night is natural. He had given complete description of the place of occurrence regarding his cot and cots of other witnesses and the deceased. This witness had no enmity or motive to falsely implicate the appellant nor any enmity was suggested rather while making statement under section 342, Cr.P.C. The accused had categorically stated that there was no enmity between him and P.Ws. This witness is the real brother of the deceased and in that eventuality it is not expected that without any motive he will falsely implicate the appellant. It is also not expected from him that he will substitute the appellant with someone else. He categorically stated that it was Haider appellant who caused repeated Toka blows to the deceased hitting different parts of his body. He had also stated that Mst. Irshad Bibi in order to save life of Khyzer Hayat deceased laid upon him but accused also gave Toka blows to her. There is nothing on the record to suggest that he was making a false statement. From the day first, it was the case of Muhammad Arshad complainant that it was Ghulam Haider appellant alone who caused injuries to the deceased and Mst. Irshad Bibi, so the statement of this witness is confidence-inspiring and is trustworthy.
The most important witness of the ocular account is Mst. Irshad Bibi P.W.6. According to her she woke up after hearing noise of foot steps and they saw the accused coming and giving Toka blows to the deceased. She further stated that she in order to save life of her brother stepped forward and laid upon him in order to cover his body but the appellant also inflicted Toka blows upon her.
She is the injured witness. Her presence at the place of occurrence being inmate of the said house cannot be doubted. Injuries on her person fully indicate that she was present at the spot. On the other hand, the case of the defence is that some unknown person had caused injuries to Khyzer Hayat deceased but the defence remained mum regarding the injuries of Mst. Irshad Bibi. The presence of Mst. Irshad. Bibi at the place of occurrence is fully proved and in that eventuality it is not expected from her that she will let free the real culprit and involve the present appellant in this case. No motive or enmity was suggested to this witness for implication of the appellant falsely. It is worth-mentioning here that the deceased was husband of the sister of the appellant and in that eventuality appellant was also related to the witnesses of ocular account. Both the witnesses remained consistent on each and every material point except one point i.e. Muhammad Arshad complainant stated that on hearing the hue and cry 15/20 persons attracted to the place of occurrence, whereas, according to Mst. Irshad Bibi the persons from the vicinity assembled there, may be five hundred in number. But this discrepancy is not fatal to the prosecution as Mst. Irshad Bibi during cross-examination had categorically stated that when the deceased died she became unconscious and regained her senses in the hospital. Such type of discrepancy with the passage of time is bound to occur and the same is not fatal to the prosecution case. Even otherwise, this witness remained consistent on each and every material point regarding the role of appellant, causing of injuries, the weapon used and identity of the appellant etc. This witness has also no enmity or motive to falsely implicate the appellant. It is also not imaginable that. She will substitute the appellant for causing the death of her brother and causing injuries to her. The ocular account furnished by the prosecution comprising of these two witnesses is straight forward and trustworthy.
10. The most stress given by learned counsel for the appellant was upon the identification of the appellant. In this case it is specifically mentioned in the F:I.R. That it was moon lit night. According to calendar the said night was 21st of Rabi-ul-Awwal, in that eventuality at 2-0.0 a.m. There must be sufficient light of moon. The witnesses in their examination-in-chief categorically stated that there was light of moon. They were not suggested by the defence that at that time there was no light of moon. The witnesses were not cross-examined on the point of moon light, meaning thereby the said fact is admitted by the defence. Even otherwise, it has come on the record that accused was living in the same Dera and his room was just adjacent to the room of the deceased and the witnesses. The sister of the appellant was married with the deceased. So, the appellant and the witnesses were already well-known to each other due to their close relationship and living closely to each other. In order to cause injuries to the deceased and Mst. Irshad Bibi, the appellant has to be very close to them. In the ordinary course of life even in the dark hours of the night, people who are acquainted with each other recognize themselves due to their structure and voices etc. In this case E the witnesses and the deceased were sleeping outside in an open place. They were not sleeping under some shadows and in that eventuality in an open place when there was light of moon and stars and appellant is well known by the witnesses, then there could be no mistaken identity of appellant. While causing injuries to Mst. Irshad Bibi, the appellant must be very close to her and it is not expected that she will not identify the person who was causing injuries to her from such a close range as appellant caused injuries with a Toka front a very close distance from the injured and the witnesses. So, there is no doubt regarding the identification of the appellant.
The argument of learned counsel regarding the conduct of the witnesses as they have not step forwarded to save the life of the deceased has no force. The complainant during the cross- examination categorically stated that Anwar P.W. Was also frightened by Toka of the accused. Mst.
Irshad Bibi categorically stated that none of the other P,Ws. Had come nearer to appellant to rescue due to fear of Toka. She further stated that Mst. Hussain Bibi also did not come forward due to fear of the accused. We have observed that Mst. Irshad Bibi step forwarded to rescue the life of her brother but she was also dealt brutally by the appellant. The act of the appellant was so brutal that it must have frightened the witnesses and inmates of the said house, especially, when Mst.
Irshad Bibi was also dealt with in the same manner when she step forwarded, so, this argument is not helpful to the appellant.
11. The motive mentioned in the F.I.R. Was that 2/4 days prior to the occurrence the appellant had damaged the crop of the deceased upon which the deceased abused the appellant and the appellant threatened the deceased to teach him a lesson.' Although both the witnesses of the ocular account narrated this motive but the defence had not cross-examined the said two witnesses on this point. Even it was not suggested that the motive put forward was false. It is the settled principle that if a party asserts some fact in examination-in-chief and the said fact was nOt controverted by the other side, then the said fact would be an admitted fact. Likewise, in this case the defence did not cross-examine the assertion of these witnesses regarding the motive. Meaning thereby, the said assertion made by P.W.6 regarding motive is an admitted fact. P.W.5 during cross-examination had categorically answered to the question that except the motive quarrel appellant and the deceased had never quarrelled due to any reason. The said motive quarrel was not disputed by the defence during the cross-examination and the defence did not try to rebut the motive. Although, the Investigating Officer gave concession to the defence during the cross- examination that he did not record statement of any P.W. In respect of the alleged motive but this concession given by the I.O. Is obliging one as he had recorded the statement Exh. PA and in the said statement complainant categorically stated the motive part. Likewise, P.W.6 categorically stated in her examination-in-chief regarding the motive part. The said part of the evidence was not confronted by her previous statement recorded under section 161, Cr.P.C., meaning thereby, that the said stance must have been recorded in the statement recorded under section 161, Cr.P.C.
So, the assertion of the Investigating Officer that he did not record statement of any witness regarding the motive is an obliging concession to the defence. Hence, the prosecution remained successful in proving the motive part of the occurrence which gives support to the ocular account.
12. In the F.I.R. It is specifically mentioned that the appellant gave repeated blows of Toka on the person of the deceased. The first blow given by the appellant hit on the mouth of Khyzer Hayat deceased. It is also alleged in the F.I.R. That the deceased fell down while facing downward and thereafter appellant caused injuries hitting on the back of neck and then he caused injuries with his Toka hitting on shoulder, head, arm and other parts of his body. According to the Doctor under injury No.1 there were incised wound on left side of lower lip making it into two parts and the mandible bone was exposed. Injuries Nos.3 and 4 on the person of the deceased was on the back of base of skull near the neck. There were injuries on the head, shoulder and arm etc. Of the deceased. It is mentioned in the F.I.R. That the deceased fell down while facing downward and most of the injuries on his person were on his back Likewise, it is the prosecution case that Mst. Irshad Bibi fell on the deceased in order to save him and appellant caused injuries to her, hitting on her back, forehead and other parts of the body. According to the Lady Doctor there were injuries on her forehead from level of lateral angle of right eye, posterior aspect of the lower part of right side of the chest. So, the medical evidence fully supported the ocular account. Although the doctor had not declared the result of any injury of Mst. Irshad Bibi and the said injuries were kept under observation but injuries on her person could not be self-suffered. P.W.3 Dr. Ajaz Ahmad Mughal categorically stated that injuries were result of sharp-edged weapon but the weapon either it was hatchet, Chhurri, Toka or any other of the alike nature, cannot be evaluated. Mst. Irshad Bibi was examined on the same day in the hospital at 6-30 a.m. The I.O. Has mentioned that he prepared the injury statement of Mst. Irshad Bibi and sent her to the hospital for medical examination. On the other hand, when he was recording the statement of the complainant at 8-30 p.m. He recorded in the said statement that Mst. Irshad Bibi had already been sent to the hospital for first aid. The doctor had not given the time of examination and only the date is given. So, his arrival in the hospital at 6-30 a.m. Is not indicative that she was medically examined at that time rather said time was her arrival time in the hospital. Her medical examination might have been conducted after receiving the injury statement.
13. The post mortem examination was conducted on the same day at 5-00 p.m. According to the Investigating Officer he after reaching the place of occurrence, prepared the relevant documents sent the dead body to the mortuary through Muhammad Ashraf constable. The dead body was shifted to the Civil Hospital, Phalia. Muhammad Ashraf categorically stated that from the place of occurrence he took the dead body to the hospital. He was not suggested that the dead body was taken to the hospital at a belated stage. It is possible that the doctor may not be available at the relevant time and the post mortem examination was conducted at 5-00 p.m. The accused in this case was specifically nominated for causing injuries to the deceased and P.W.6 and in presence of the evidence of natural witnesses especially the injured witness the delayed post mortem is not fatal to the prosecution. Even otherwise the medical evidence has fully supported the ocular account, as discussed above.
14. In this case, the blood-stained. Toka P-2 was recovered at the instance of appellant. Although in his examination-in-chief, Shahid Imran recovery witness/P.W.7 has not stated that said Toka P-1 was stained 'with blood but during cross-examination he clarified and categorically stated that the same was blood-stained and was covered by a piece of cloth. In the recovery memo Exh. PD, it is specifically mentioned that said Toka was blood-stained. The evidence of Shahid Imran P.W.7 and the I.O. P.W.10 remained consistent on each and every material point regarding the recovery. It is in the evidence that room of the appellant was adjacent to the Dera of the deceased and the Toka was recovered on the pointation of the accused from his residential room. Although, complainant P.W.5 Muhammad Arshad is not the recovery witness, but during cross-examination he stated that "once the I.O. Had brought the accused Haider on the spot for the recovery of Toka where Haider did reside" so, the deposition of Shahid and the I.O. Is also supported by the complainant who also confirmed that the appellant was brought to his house for the purpose of recovery of Toka. Said Toka was kept in safe custody by Moharrir Ijaz Ahmad A.S.-I./P.W.1 and the same was further delivered to Muhammad Ashraf constable P.W.2 who delivered the same to the office of the Chemical Examiner. According to the report of the Chemical Examiner Exh. PM and the report of the Serologist Exh.
PQ the said Toka was found to be stained with human blood. So, recovery of the Toka further corroborates the ocular account. The objection of the learned counsel for appellant that cot was not taken into possession is without any substance as it is mentioned in the F.I.R. And also in the statements of the witnesses that after receiving the first blow the deceased tried to stand up but he fell on the ground while facing downward and the remaining blows were given in that position.
The I.O. Reached at the place of occurrence in the morning, so it is not expected from near relatives that they will let the dead body lying on the ground and certainly they had put the same on the cot that is why the I.O. Found the dead body on the cot but he had collected the blood stained earth from the ground and not from the cot. So, in that eventuality, when deceased fell on the ground, then the cot is not supposed to be taken into possession.
15. There is another circumstance that sister of the appellant was the wife of the deceased. She had a son namely Farman. It has also come on the record that wife of the appellant was also available there, but no one came forward to support the appellant. Even the real sister of the appellant had not supported the version of the appellant. The real sister of the appellant and her son could have compounded the offence but even they did not come forward to rescue the appellant as such it is a circumstance which indicates that it was the appellant alone who had committed this occurrence mercilessly in the presence of his real sister and even she was not ready to make statement in his favour.
16. Now to sum up the matter. As already discussed, the ocular account furnished by P.W.5 and P.W.6 is confidence-inspiring. They were the residents of the same Dera where this occurrence had taken place. The injury on the person of Mst. Irshad Bibi fully proved her presence at the place of occurrence. Both are brother and sister of the deceased and cannot be expected from them to let of the real culprit and involve the appellant in this case falsely. They have no motive to falsely.
Implicate the appellant and the appellant in his statement under section 342, Cr.P.C. Admitted that there was no enmity between the parties. Both the witnesses narrated the motive part of the occurrence. The complainant in his.Cross-examination admitted that except the motive quarrel the accused had never quarrelled due to any reason. This admission during the cross-examination further confirmed the motive asserted by the prosecution. The medical evidence fully corroborated the ocular account as mentioned above. The blood-stained Toka is also a circumstance which corroborates the ocular account. The same was found to be stained with human blood. The deceased was the husband of sister of the appellant who was also present in the same Dera and she did not come forward to support the version of. The appellant. Even it has come on the record that wife of the appellant was also present there but she also did not come forward to support the appellant. The identity of the appellant as already discussed is not doubtful. As from the day first the stance of the prosecution was that it was a moon lit night. According to the Calendar its was 21st of Rabi-ul-Awwal. So, the presence of the light is proved by the prosecution which is not controverted by the defence during cross-examination. Even otherwise for causing injuries with a Toka the appellant must have been very close to the injured witness, so there could be no mistaken identity in this case. It has come on the record that 2/3 days prior to the occurrence, appellant had damaged the crop of the deceased and abuses were exchanged between the deceased and appellant. Appellant threatened the deceased to teach him a lesson. The appellantin a very brutal manner caused injuries to the deceased and When Mst. Irshad Bibi stepped forward she was also given Toka blows on her body. She stated that due to these injuries she had lost her left eye. So, the desperate and brutal act. Of the appellant indicates that it was a calculated murder. There is nothing on the record to provide any mitigating circumstance qua the sentence of the appellant.
The trial Court had rightly convicted and sentenced the appellant.
Resultantly, conviction and sentence of Haider appellant awarded by the learned trial Court is upheld and death sentence of the appellant is confirmed. Consequently, Criminal Appeal No. 1323 of 2005 filed by Haider appellant is hereby dismissed.
17. Murder Reference No. 622 of 2005 is answered in the affirmative.