' MALIK SHAHZAD AHMAD KHAN, J.---Nazir Ahmad and Intizar Hussain appellants along with Basara co-accused were tried in case F.I.R. No,296, dated 13-5-2003, registered at Police Station.
Lundianwala, District Faisalabad in respect of offences under sections 302/109/34, P.P.C. After conclusion of the trial, learned trial Court vide its judgment dated 25-2-2006 while acquitting co- accused namely Basara has convicted and sentenced the appellants as under:-- Nazir Ahmad ' Under section 302(b), P.P.C. To 'Death' for committing Qatl-e-amd of Zafar Iqbal deceased. He was also ordered to pay Rs,1,00,000 (Rupees one hundred thousand only) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to suffer simple imprisonment for six months.
Intizar Hussain ' Under section 302(b), P.P.C. To 'Imprisonment for Life' for committing Qatl-e-amd of Zafar Iqbal deceased. He was also directed to pay Rs,1,00,000 (Rupees one hundred thousand only) as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. Or in default to suffer simple imprisonment for six months.
2. Feeling aggrieved, the appellants have challenged their convictions and sentences through Criminal Appeal No, 146-J of 2006, whereas the learned trial Court has transmitted Murder Reference No,508 of 2010 for confirmation or otherwise of the Death sentence of Nazir Ahmad appellant. We propose to dispose of both these matters by this single judgment as these have arisen out of the same judgment dated 25-2-2006 passed by the learned Additional Sessions Judge, Jaranwala.
3. Brief facts of the case as disclosed by Mian Noor complainant (P.W.7) in F.I.R. Exh.PH, are that on 13-5-2003 at about 7-00 p.m. He along with Zahoor Hussain (P.W.8), Zahid Abbas (given up P.W.) and Zafar Iqbal (deceased) was coming from village Jalika's side. Zafar Iqbal was ahead of them.
When he (Zafar Iqbal) reached at the agricultural land of one Santa Khan situated near the graveyard, Nazir Ahmad (appellant) while armed with dagger, Intizar Hussain (appellant) who was equipped with daatar' intercepted him and then Nazir Ahmad (appellant) inflicted several dagger blows to Zafar Iqbal on his chest and abdomen. Intizar Hussain also inflicted many Waatar' blows on the person of Zafar Iqbal which landed near his nose, beneath his ear and on his right and left flanks. Upon. Receipt of said injuries Zafar Iqbal fell down on the ground and died at the spot, thereafter, both the accused decamped from the spot while raising lalkara.
4. Motive behind this occurrence was alleged that there was "watta" "satta" marriages between the parties. The sister of Zafar Iqbal (deceased) namely Mst. Kaneez Bibi was married to Nazeer Ahmad (appellant) whereas, sister of Nazeer Ahmad (appellant) namely Mst. Musarat Bibi was married to Zafar Iqbal (deceased). Mst. Kaneez Bibi did not live in the house of Nazir Ahmad appellant and due to this grudge Nazir Ahmad and Intizar Hussain appellants committed the murder of Zafar Iqbal (deceased). It was also alleged that the murder of Zafar Iqbal deceased was committed, on the abetment of co-accused Basra (since acquitted).
5. After completion of investigation, the challan was submitted before the court. The appellants and their co-accused, all of them were charge-sheeted, to which, .They pleaded not guilty and claimed trial.. The prosecution in order to prove its case examined as many as 9 P.Ws. The complainant Mian Noor (P.W.7) and Zahoor Hussain (P.W.8) furnished ocular account of the occurrence, whereas Muhammad Nawaz, S.-I. Had conducted investigation of this case who died during the pendency of trial and Abdul Razzaq Moharrir was called to recognize his signatures on the memos and to lead secondary evidence. Muhammad Nawaz, SI prepared all documents and the memos which were necessary for the collection of evidence. His signatures were identified by Abdul Razzaq Moharrir while appearing as (P.W.9). Abdul Razzaq also drafted the formal F.I.R. Exh.PH on the basis of complaint Exh.PF. Khudah Yar Khan, DSP (P.W.5) also conducted the investigation in this case due to 'illness of Muhammad Nawaz, SI. Manzoor Ahmad P.W.6 is the recovery witness of dagger P-1 from Nazir Ahmad (appellant) which was taken into possession vide recovery memo Exh.PD. He is also witness of daatar' P-2 from Intizar Hussain (appellant) which was taken into possession vide recovery memo Exh.PE.
6. The statement of appellants and their co-accused under section 342, Cr.P.C. Were recorded.
They refuted the allegations levelled against them and professed their innocence. While answering to question "Why this case against you and why the P.Ws. Have deposed against you" they replied as under:-- Nazir Ahmad "The case is false and I am innocent. Actually, Kaneez Bibi daughter of complainant wanted to marry with Allah Ditta son of Sadiq and Allah Ditta also wanted to marry with Kaneez Bibi.
Deceased Zafar Iqbal admonished Kaneez Bibi and Allah Ditta from having relationship with each other and due to this reason Allah Ditta had murdered Zafar Iqbal. Allah Ditta being closely related to complainant, I have been falsely involved in this case. P. Ws. Are closely related to the complainant and Allah Ditta therefore they have falsely deposed against me".
' The appellant Intizar Hussain adopted the same plea as taken by Nazir Ahmad appellant.
7. The appellants opied not to make statements under section 340(2) of Cr.P.C. But Nazir Ahmad Appellant produced Mst. Nusrat Bibi as (D.W.1) in his defence. The learned trial Court vide its judgment dated 25-2-2006, while acquitting co-accused Basara, found Nazir Ahmad and Intizar Hussain appellants guilty and convicted and sentenced them as mentioned and detailed above.
8. The learned counsel for the appellants, in support of this appeal, has contended that both the appellants have falsely been implicated in this case; that ocular account was furnished by Mian Noor complainant (P.W.1), who is father of the deceased and Zahoor Hussain (P.W.8) was close relative of the complainant and as such they are interested witnesses; that there is delay in reporting the matter to the police as the occurrence has allegedly taken place on 13-5-2003 at 7- 00 p.m.. Whereas the matter was reported to the police at 9-45 p.m. And postmortem examination was conducted on the next day and in this regard no explanation whatsoever has been given by the prosecution; that recovery of dagger and daatar' at the instance of the appellants is of no avail to the prosecution)as there is no report of Serologist; that motive alleged by the prosecution is highly improbable; that the defence evidence produced by the appellants has not been properly appreciated by the learned trial Court; that Mst. Nusrat Bibi (D.W.1) who is widow of Zafar Iqbal (deceased) has categorically stated that the complainant Mian Noor and prosecution witnesses Manzoor and Zahoor were present at their house when they were told about the murder of Zafar Iqbal deceased; that the defence evidence of D.W.1 has fully established, that neither the complainant nor prosecution witnesses were present at the time of occurrence; that the prosecution has failed to prove its case against the appellants beyond any shadow of doubt and that the appellants are entitled to acquittal.
9. On the other hand, the learned Deputy Prosecutor-General assisted by the learned counsel for the complainant has vehemently opposed the contentions of the learned counsel for the appellants on the grounds that the delay per se in lodging the F.I.R. Is no ground to discard the evidence of the eye-witnesses and even otherwise there is no delay in reporting the matter to the police; that in order to prove its case, the natural eye-witnesses' account has been furnished by the prosecution, which inspired confidence and despite cross-examination, the defence could not shake the testimony of the prosecution witnesses; that there could not be any reason to falsely implicate the appellants in this case; that the ocular account is fully supported by the medical evidence as the deceased received as many as 10 injuries on his person, which fact is evident from the post mortem examination report (Exh.P/A); that motive has also been proved and it has not been denied by the appellants that Nazir Ahmad (appellant) was married to the sister of the deceased and similarly sister of the appellant was married to the deceased; that even otherwise in such like cases substitution is a rare phenomenon; that the prosecution has proved its case against the appellants beyond any shadow of, doubt and the defence evidence is not reliable; that the appeal filed by the appellants against their convictions and sentences be dismissed.
10. We have heard the arguments of learned counsel for the appellants at length and perused the record minutely with their able assistance.
11. The occurrence in this case took place on 13-5-2003 at 7-00 p.m. The Police Station Lundianwala is at a distance of two miles from the place of occurrence. The matter was reported to the police at 9-45 p.m. And the formal F.I.R. Was chalked out at 10-15 p.m. On the same day. So the F.I.R. In this case. Was lodged with promptitude. A promptly lodged F.I.R. Rules out the possibilities of concoction and deliberations and carries the sanctity of truth. After considering the time, place and its distance from the police station we are of the view that there was no delay in reporting the matter to the police.
' The objection of the learned counsel for the petitioner in respect of delay in conducting the postmortem of the deceased is also misconceived. The occurrence, as mentioned earlier, had taken place on 13-5-2003 at 7-00 p.m. (evening) whereas the postmortem was conducted on. 14- 5-2003 at 2-50 a.m. (night). Dr. Muhammad Hammad (P.W.4) has given the time that elapsed between death and post mortem as 7 to 8 hours, therefore, there was no delay in conducting the postmortem of the deceased Zafar Iqbal.
12. The prosecution in order to prove its ocular account, had produced the complainant Mian Noor as P.W.7 and Zahoor Hussain as P. W.8. The appellant Nazir Ahmad has been ascribed the role of inflicting several blows of dagger, which landed on the front side of chest and belly of Zafar Iqbal deceased whereas the appellant Intizar Hussain has been attributed the role of inflicting several 'daatar' blows, which landed near the nose, under the ear and on right and left flanks of Zafar Iqbal deceased. The above mentioned prosecution witnesses were cross-examined at length but their testimony could not be shattered during the cross-examination. The postmortem of the deceased Zafar Iqbal was conducted on 14-5-2003 at about 2-50 a.m. By Dr. Muhammad Hammad P.W.4.
While conducting post mortem, he found the following injuries on the person of deceased:-
(1) An incised wound 11 cm x S x bone, cut on the upper lip and the right cheek below the nose.
(2) An incised wound 3 cm x 2 cm x bone, cut in the underneath of left ear.
(3) An incised wound 5 cm x 2 cm x bone, cut on the left chest, 2.3' cm below the right nipple.
(4) An incised wound 6 cm x 2.5 cm x bone, cut along with omentum coming out of the wound in the epigastrium area of the abdomen.
(5) An incised wound 4 cm x 2 cm with intestine coming out from the wound, 2 cm below the injury No, 4 and 6 cm above the umblicus.
(6) An incised wound 5 cm x 2.5 cm in the middle of the abdomen 3 cm below the umblicus. This wound was cavity deep.
(7) An incised wound 3 cm x 2 cm on the lateral side of the left lumber region 7 cm above the left superior iliac spine. This was cavity deep.
(8) An incised wound 4 cm x 2.5 cm on the lateral side of the right lumber region 9 cm above the right superior iliac spine. This was cavity deep.
(9) An incised wound 6 cm x 3 cm of the back of the right lumber region 5 cm back to the injury No,8.
(10) An incised wound 5 cm x 1 cm on the anterior aspect of the right fore-arm near right wrist joint.
' In his opinion, 'it was difficult to point out which injury was responsible to cause death because all injuries described previously were grievous, causing excessive bleeding, injuries, soft tissue organs, specially, notable injuries Nos.2, 3 and 5 involving soft major blood vessels and nerves in, neck, heart and intestine respectively were enough to cause death in the natural way. The time between injuries and death was immediate and between death and post-mortem was 7 to 8 hours.
The post mortem report of the deceased Zafar Iqbal is Exh.PA and his pictorial sketch is Exh.PA/l.
According to Dr. Muhammad Hammad (P.W.4) the time which elapsed between the death and injury was immediate and between the death and post mortem was 7 to 8 hours. The above- mentioned medical evidence has fully supported the ocular account given by the complainant Mian Noor P.W.7 and Zahoor Hussain, P.W.B. According to the post mortem report of the deceased, the seat of injuries on the person of the deceased were the same, which were narrated by the above-mentioned prosecution witnesses. The time of occurrence/death given in the F.I.R. And mentioned by the eye witnesses has also tallied with the time of death given by Dr. Muhammad Hammad (P.W.4). The medical evidence has further supported the ocular account regarding the kind of weapon used in the occurrence. The above-mentioned medical officer (P.W.4) was also cross-examined by the learned defence counsel but no material favourable to the accused/appellants could be brought on the record in the course of his cross-examination.
13. The learned counsel for the appellants has contended that complainant Mian Noor (P.W.7) and Zahoor Hussain (P.W.8) are closely related to the deceased, therefore, their evidence cannot be relied upon as they are interested witnesses. Mere relationship of a witness with the deceased is no ground to . Discard his evidence, out rightly. If the evidence of a related witness is trustworthy and confidence-inspiring then the said evidence can safely be relied upon in order to award punishment to an accused. Reference in this respect may be ma o the case of Sahib Khan v. The State (2008 SCM R 1049 at page 1052). The relevant part of the said judgment is reproduced hereunder for ready reference:- "The occurrence has taken place on the road- at 8-30 a.m. And the was recorded on the same day at 9.45 a.m. Promptly without wasting any time in the negotiations and conversation which is proof of the fact that the witnesses of the occurrence were natural. Even otherwise, the mere relationship of the prosecution witnesses with the deceased is no ground to discredit their evidence if it is proved that it is straightforward, fair and confidence inspiring as laid down in the cases of Umarzad versus the State 1990 SCMR 571, Bashir Khan v. The State 1995 SCMR 900 and Nazir Ahmad v. Muhammad Siddique 1995 SCMR 1740. The prosecution witnesses have passed the test of lengthy cross-examination but the defence has not been able to extract any material discrepancies or contradictions from their mouth which could be fatal to the prosecution case."
Similar view was taken by the Hon'ble Supreme Court of Pakistan in the case of Umar Draz v. The State (1990 SCM R 571) and Bashir Khan v. The State (1995 SCM R. 900).
14. As discussed earlier, the prosecution witnesses stood the test of lengthy cross-examination but their evidence could not be shattered by the learned defence counsel. Their evidence is quite natural straightforward and confidence-inspiring. The above-mentioned ocular evidence of the prosecution has further been supported by the medical evidence. Even otherwise, substitution in such like cases where both the eyewitnesses are close relatives of the deceased, is a rare phenomenon because it is not possible that near kith and kin of the deceased would let off the real culprit and shall substitute some innocent person in a murder case.
' The complainant Mian Noor P.W.7 is real father of Zafar Iqbal deceased. It is not believable that he will let the real culprits off and would falsely implicate innocent persons (the appellants) for the murder of his real son.
15. According to the prosecution case on 22-5-2003 the appellant Nazir Ahmad led to the recovery of dagger P-1, which was taken in to possession vide recovery memo Exh.PD. The said recovery was witnessed by Manzoor Ahmad (P.W.6) and Muhammad Fazil (given up P.W.). Similarly, on 22-5- 2003 the appellant Intizar Hussain made a disclosure and led to the recovery of Vaatar P-2, which was taken into possession vide recovery memo Exh.PE. The said recovery was also witnessed by Manzoor Ahmad (P.W.6) and Muhammad Fazil (given up P.W.). The above-mentioned recoveries are not helpful to the prosecution case because the prosecution failed to establish that the dagger P-1 and `daatar' P-2 were stained with human blood because there is no report of the serologist to this effect, therefore, we disbelieve the prosecution evidence qua the above referred alleged recoveries.
16. Coming to the motive part of the prosecution evidence, we have noted that it was mentioned in the F.I.R. That daughter of the complainant namely Mst. Kaneez Bibi was married to the appellant Nazir Ahmad whereas the sister of Nazir Ahmad appellant namely Mst. Nusrat Bibi was married to Zafar Iqbal deceased. There were marriages of "watta" "satta" between the appellant Nazeer Ahmad and the deceased Zafar Iqbal. According to the complainant his daughter namely Mst.
Kaneez Bibi left the house of the appellant Nazir Ahmad and was not living with him, therefore, due to that rancor the appellants committed the murder of Zafar Iqbal deceased. The said motive was not established by the prosecution through any confidence inspiring evidence during the course of trial. The complainant Mian Noor (P.W.7) has stated during his cross examination that his daughter Mst. Kaneez Bibi was not living with her husband (the appellant Nazir Ahmad) because the accused Nazir Ahmad never tried for it. If the appellant Nazir Ahmad never tried to take back Mst.
Kaneez Bibi to his house, then there was no motive with him to commit the murder of Zafar Iqbal deceased as alleged by the prosecution. Therefore, we disbelieve, the motive as set forth by the prosecution.
17. The appellants did .Not opt to make statement on oath under section 340(2) of Cr.P.C. In disproof of allegations levelled against them. Anyhow they have produced Mst. Nusrat Bibi as D.W.1, in their defence. She has stated that the complainant Mian Noor (P.W.7), Manzoor (P.W.3) and Zahoor Hussain (P.W.8) were present at their house when they were told about the murder of Zafar Iqbal deceased. Mst. Nusrat Bibi is widow of Zafar Iqbal deceased. It was a marriage of "watta satta". The sister of deceased Zafar Iqbal namely Mst. Kaneez Bibi was married to the appellant Nazir Ahmad whereas the above-mentioned witness Mst. Nusrat Bibi (D.W.1) who is sister of Nazir Ahmad appellant was married to the deceased Zafar Iqbal. She never appeared before the Investigating Officer during investigation of the case. She has admitted in here cross-examination that she never made any statement before the police. She has also admitted that she had never appeared before any court prior to recording of her statement on 18-2-2006. The occurrence in this case had taken place on 13-5-2003 but she never agitated the defence version of the appellants before any forum. She remained silent for a period of almost two years and nine months. No plausible explanation has been rendered by this witness for the above-mentioned inordinate delay in making her statement regarding the presence of complainant and prosecution witnesses at their house at the time of occurrence. She was not present at the spot at the time of occurrence.
She is real sister of the appellant Nazir Ahmad. It appears that the appellants have produced her at a belated stage in order to save their skin. In view of the above discussion, we disbelieve the defence evidence produced by the appellants.
' If the evidence of motive and recoveries of the weapons of offence is excluded from consideration, even then there is sufficient incriminating evidence available on record against the appellants. As discussed earlier, the prosecution case was fully established through evidence of eye-witnesses Mian Noor (P.W.7) and Zahoor Hussain E (P.W.8). They stood the test of cross-examination but their evidence could not be shattered by the learned defence counsel. The evidence of said witnesses is quite natural, reliable and confidence-inspiring. The ocular account. Of the prosecution' is fully supported by the medical evidence of Dr. Muhammad Hammad (P.W.4), post mortem report Exh.PA and pictorial sketch of the deceased Exh.PA/1. The injuries attributed to the appellants, seat of injuries, the kind of weapons used in the occurrence and time of death of the deceased, as given by the prosecution eyewitnesses were fully supported by the above-mentioned medical evidence, therefore, we hold that the prosecution has proved its case against the appellants beyond the shadow of any doubt.
18. Now coming to the quantum of sentence, we hold that the case of the appellant Nazir Ahmad is of lesser punishment due to various reasons. The prosecution in this case, as discussed earlier, could not prove the motive as alleged by the complainant party. It is not determinable in this case as to what had actually happened immediately before the occurrence, which had resulted into the death of deceased. Zafar Iqbal, therefore, the death sentence to the appellant Nazir Ahmad is quite harsh. It has been held in number of judgments of the Hon'ble Supreme Court of Pakistan that if a specific motive has been alleged by the prosecution then it is duty of the prosecution to establish the said motive through cogent and confidence-inspiring evidence and non-proof of motive may be considered a mitigating circumstance in favour of the accused. While treating it a case of mitigation, we have fortified our view by a judgment of the Hon'ble Supreme Court of Pakistan reported in the case of Ahmad Nawaz and another v. The State (2011 SCM R 593), wherein, at page 604, the Hon'ble apex Court of the country, has been pleased to lay emphasis as under:-- "10. The recent trend of the courts with regard to the awarding of penalty is evident from several precedents. In the case of Iftikhar-ul-Hassan v. Israr Bashir and another (PLD 2007 SC 111), it was held that "This is settled law that provisions of sections 306 to 308,P.P.C. Attracts only in the cases of Qatl-eamd liable to Qisas under section 302(a), P.P.C. And not in the cases in which sentence for Qatl-e-amd has been awarded as Tazir under section 302(b), P.P.C. The difference of punishment for Qatl-e-amd as Qisas and Tazir provided under sections 302(a) and 302(b), P.P.C.
Respectively is that in a case of Qisas, Court has no discretion in the matter of sentence whereas in case of Tazir Court may award either of the sentence provided under section 302(6)4 P.P.C. And exercise of this direction in the case of sentence of Tazir would depend upon the facts and circumstances of the case. There is na cavil to the proposition that an offender is absolved from sentence of death by way of qisas if he is minor at the time of occurrence but in a case in which qisas is not enforceable, the Court in a case of Qatl-eamd, keeping in view the circumstances of the case, award the offender the punishment of death or imprisonment for life by way of Tazir. The proposition has also been discussed in Ghulam Muretaza v. State (2004 SCMR 4), Faqir Ullah v.
Khalil-uzZaman (1999 SCMR 2203), Muhammad Akram v. State (2003 SCMR 855) and Abdus Salam v. State (2000 SCMR 338)". The Court while maintaining the conviction under section 302(b), P. P. C. Awarded him sentence of life imprisonment under the same provision and also granted him the benefit of section 382-B, Cr.P.C. In Muhammad Riaz and another v. The State (2007 SCMR 1413) while considering the penalty for an act of commission of Qatl-e-amd it was observed that "No doubt, normal penalty for an act of commission of Qatl-e-amd provided under law is death, but since life imprisonment also being a legal sentence for such offence must be kept in mind wherever the facts and circumstances warrant mitigation of sentence, because no hard and fast rule can be applied in each and every case".
(In Iftikhar Ahmad Khan v. Asghar Khan and another (2009 SCM R 502) it has been noted that:) "In other words, the law has conferred discretion upon the Court to withhold the penalty of death and to award the punishment of imprisonment for life, if the outlook of a particular case requires that course". (underlining, italic and bold supplied).
' Apart from above mentioned law and facts of this case, the prosecution witness, Dr. Muhammad Hammad (P.W.4) has categorically stated in his examination-in-chief that in his view it was difficult to point out as to which injury was responsible to cause death of deceased Zafar Iqbal. Although he has stated in the latter part of his examination-in-chief that all injuries described previously were grievous, causing excessive bleeding injuring soft tissues organs, especially, injuries Nos.2, 3 and 5 involving major blood vessels and nerves in neck, heart and intestine which were respectively enough to cause death in the ordinary course of nature, but the said latter part of his statement is contradictory to the former part of his statement where he has categorically stated that it was difficult for him to pin point the injury which was responsible for the cause of death. Injuries on the person of deceased Zafar Iqbal were attributed to both the appellants Nazir and Intizar Hussain.
Even the above-mentioned injuries Nos.2, 3 and 5 have also been attributed to both the appellants.
Injury No,2 which is under the left ear of the deceased Zafar Iqbal has been attributed to Intizar Hussain (appellant) whereas injuries Nos.3 and 5 which are on the chest and abdomen of the deceased Zafar Iqbal have been assigned to Nazir Ahmad, appellant. It is evident from the above- mentioned medical evidence that death of the deceased was the result of cumulative act of dagger and daatar blows caused by both the appellants which is a strong mitigating circumstance in favour of Nazir Ahmad appellant and he was entitled to equal treatment of lesser penalty which has been awarded to his co-accused Intizar Hussain appellant.
Intizar Hussain has already been awarded lesser punishment of life imprisonment by the learned trial Court. The prosecution has not filed any criminal revision for enhancement of his sentence. The appellant Nazir Ahmad cannot be treated differently when his role is not distinguishable from the role of his co-accused who has been awarded lesser punishment. The recovery of dagger from G Nazir Ahmad has already been disbelieved because no report of the serologist was placed on record to establish that the said dagger was stained with blood.
19. Due to the above mentioned reasons the conviction of Nazir Ahmad appellant under section 302(b), P.P.C. Awarded by the learned trial Court is maintained but his sentence is altered from the: death to imprisonment for life. The compensation awarded by the learned trial court or sentence in default thereof is maintained and upheld. The conviction and sentence awarded to the appellant Intizar Hussain is, hereby, maintained. The benefit of section 382-B, Cr.P.C. Is also given to the appellants.
20. Consequently, with the above said modification in the sentence of Nazir Ahmad appellant, Criminal Appeal No, 146-J of 2006 filed by the appellants is hereby dismissed. Murder Reference (M.R. No,508 of 2010) is answered in the negative and death sentence of the appellant Nazir Ahmad is not confirmed.