' MANZOOR AHMAD MALIK, J.---This judgment shall decide. Criminal Appeal No.268 of 2009 titled as "Ishtiaq Ahmad alias Tak v. The State" and Murder Reference No.105 of 2009 titled as "State v. Ishtiaq Ahmad alias Tak" as both these matters have arisen out of private complaint titled as "Mst Ramzan.
Bibi v. Ishtiaq Ahmad, alias Tak etc. " filed under sections 302, 337-A(i), 337-A(ii), 337-F(ii) and 34, P.P.C. Regarding an occurrence alleged to have taken place in the area of Kothey Saria within the jurisdiction of Police Station Lassar Kalan, District Narowal.
2. Ishtiaq Ahmad alias Tak (appellant) has been convicted by the learned Additional Sessions Judge Shakargarh District Narowal vide judgment dated 18-2-2009 and sentenced as under:-- "15. ...The accused Ishtiaq Ahmad is held guilty for the Qatl-e-Amd of Faryad Ali (deceased) son of the complainant so he is convicted under section 302(b), P.P.C. And sentenced to Death. He be hanged by the neck till he is dead. He is further ordered to pay Rs.100,000 (one lac) to the legal heirs of the deceased as compensation under section 544-A , Cr . P. C . Failing which the convict shall undergo imprisonment for four months'The convict Ishtiaq Ahmad is also held guilty for causing injuries to Muhammad Usma n, so he is convicted under, section 337 F-1, P. P . C . And sentenced to imprisonment for 1 year's (R.I) and also to pay Rs.4000 as Daman. He is further convicted under section 337. F-4, P.P.C. And sentenced to imprisonment for 4 years' R.I and to pay Rs.5000 as Daman. In addition to this Ishtiaq Ahmad convict is held guilty for causing injuries to Ramzan Bibi complainant, so he is convicted under section 337F-2 and sentenced to imprisonment for 2 years' (R.I) and pay Rs.5000 as Daman."
' All the sentences were ordered to run concurrently and benefit of section 382-B, Code of Criminal Procedure was also extended to the appellant. The learned trial Court has sent Murder Reference No.105 of 2009 for confirmation or otherwise of the sentence of death awarded to Ishtiaq Ahmad alias Tak (convict).
3. Initially, the matter was reported to the police and F.I.R. (Exh.PJ) was recorded on the basis of statement (Exh.PJ/1), made by Mst Ramzan Bibi (P.W.4) wherein she stated that she (complainant) was resident of mouza Kothey Saria and had installed a flour grinding machine.. On 19-8-2008 at 10-30/11-00 p.m. (night) Ishtiaq Ahmad alias Tak armed with dagger like churri, Imtiaz Hussain armed with dagger, Shahzad Ahmad both sons of Muhammad Iqbal and Muhammad Iqbal, all barber by caste in furtherance of their common intention came in the street situated in front of the house of the complainant. They caught hold of Nisar Ahmad alias Goonga son of the complainant and Imtiaz Ahmad caused him injury with dagger. When complainant and her son Faryad Ali stepped forward to rescue Nisar Ahmad alias Goonga, Ishtiaq Ahmad (appellant) gave dagger blows to Faryad Ali who received injuries on his head, arm and back. Thereafter the complainant stepped forward, Ishtiaq Ahmad caused injuries on her right breast and right arm. Muhammad Usman who had come in the house of complainant as guest came forward in order to rescue the complainant party, who also received injury on his arm. Muhammad Iqbal and Shahzad Ahmad had been raising lalkaras that nobody should go alive. Faryad Ali fell on the ground and smeared with blood. Muhammad Hanif son of Muhammad Shafi and Zahid Hussain son of Mubarik Ali residents of the same village had witnessed the occurrence. Motive behind the occurrence as alleged in the F.I.R. Was that Ishtiaq Ahmad (appellant) came at the flour machine twice in order to commit .Theft who was apprehended. Ishtiaq Ahmad stated that a false allegation of theft had been levelled against him and for that reason he would punish the complainant party. On 19-8- 2008 Ishtiaq Ahmad after having a chance caused injuries to Faryad Ali and others with intention to commit their murder. On hearing alarm of the complainant party, people of the locality came at the spot. The accused persons fled away from the spot. Faryad Ali was shifted to Civil Hospital Shakargarh in injured condition who succumbed to the injuries there.
4. Ghulam Haider S.I (P.W.8) was posted at Police Station Lassar Kalan. In the night between 19th and 20th of August, 2008 he received information about the occurrence in the village Kothey Saria.
He proceeded to the place of occurrence, recorded the statement (Exh.PJ/1) of Ramzan Bibi complainant in the hospital and transmitted it to the Police Station for recording of formal F.I.R.
(Exh.PJ). He prepared inquest report (Exh.PD) injury statement (Exh.PC) and drafted an application (Exh.PB) for post mortem examination on the dead body of Faryad Ali (deceased). He prepared injury statement of Usman (Exh.PE) and injury statement of Nisar Ahmad alias Goonga (Exh.PG).
Thereafter he proceeded to the place of occurrence and prepared visual site plan (Exh.PN). After post mortem examination last worn clothes of Faryad Ali (deceased) were produced before him which he took into possession vide recovery memo. (Exh.CW.1/1). The injured P.Ws. Were medically examined and he also received their Medico-legal Reports. He added the relevant sections with regard to injuries in the case and started search of the accused persons. On 22-8-2008 he summoned the iDraftsman Mirza Tahir Tasleem (CW.7) and got prepared site plan in duplicate after pointing him the place of occurrence. The said Draftsman prepared scaled site plan (Exh.CW- 7/1 and Exh.CW-7/2). On 5-9-2008 he arrested Ishtiaq Ahmad (appellant). On 8-9-2008 Ishtaiq Ahmad (appellant) made a disclosure and led to the recovery of dagger (P.4) which was taken into possession vide recovery memo (Exh.CW.6/1). He also associated Imtiaz Hussain, Shahzad Ahmad and Muhammad Iqbal accused in the investigation but, declared them innocent.
' On 17-9-2008 the complaidant filed a private complaint (Exh.PL) titled as "Mst. Ramzan Bibi v.
Ishtiaq Ahmad alias Tak etc." under sections 302, 337-A(i), 337-A(ii),. 337-F(ii) read with section 34 P.P.C. On the same lines with the assertion that the police in collusion with the accused side, had declared co-accused of the appellant, namely Imtiaz Hussain, Shahzad Ahmad and Muhammad Iqbal, innocent.
5. After cursory evidence of the complainant, the appellant and his co accused namely Imtiaz 'Hussain, Shahzad Ahmad and Muhammad Iqbal were summoned to face the trial. Copies of the documents as required under section 265-C Code of Criminal Procedure were provided to them and formal charge under sections 302, 337-F(i), 337-F(ii) 337-F(iv), '337-A(i) read with 34 P.P.C. Was framed against them on 21-11-2008 to which they pleaded not guilty and claimed trial. In order to prove its case prosecution examined eight witnesses in all whereas seven witnesses were called by the learned trial Court as court witnesses. Ocular account was furnished by Mst. Ramzan Bibi complainant (P.W.4), Muhammad Usman '(P. W.5) and Nisar Ahmad alias Goonga (P.W.6). Dr. Muhammad Latif Afzal (P.W.1) and Dr. Zahida Imtiaz (P.W.3) furnished the medical evidence. Liaquat Ali (CW.6) witnessed the recovery of dagger (P.4) at the instance of the appellant. Ghulam Haider S.I. (P.W.8) investigated this case and while appearing in the witness box narrated the various steps taken by him during the course of investigation. Rest of the witnesses are formal in nature. Learned DDPP gave up Muhammad Haneef, Zahid, Abdul Rauf and Muhammad Javed 312/C (P.Ws.) being unnecessary vide statement dated 3-2-2009. Learned ADPP tendered in evidence report of Chemical Examiner No.4141/B (Exh.PP), report of Chemical Examiner No.4140/B (Exh.PQ) and that of Serologist (Exh.PR) and closed the prosecution case on 10-2-2009. Statements of the appellant and his co-accused were recorded under section 342,. Code of Criminal Procedure on 10-2-2009 wherein they refuted all the allegations of prosecution levelled against them. To a question as to why the case against him and why the prosecution Witnesses had deposed against him, Ishtiaq Ahmad alias Talc (appellant) replied as under- "We are Kameen/barber of the village and there is party faction in the village. Umar Hayat Naib Tehsildar who belongs to my village is our opponent. Due to non voter-he bore grudge against us and the complainant in league with Umar Hayat Naib Tehsildar and police got involved me and my family in this false case. It was a dark night occurrence and unknown dacoits came in the house of the complainant party and on the resistance shown by the complainant the injuries came on their body and on the deceased. On the day of occurrence my father Muhammad Iqbal was at Nawanpind in the house of my sister Shamshad and I along with my other brothers were sleeping in my house at the time of occurrence and this fact to the extent of my father and my brother co- accused has been proved by the I.0 and they have been declared innocent by police in the investigation. I have bees roped in the case falsely on the behest of the Umar Hayat in league with police. A few days before this occurrence we also refused to work as barber of the complainafit party so they also pore grudge against us. The P. Ws. Are interested witnesses, inimical to me and my family hence they have deposed against us falsely."
' The appellant did not appear as his own witness in disproof of the prosecution allegations as provided under section 340(2) Code of Criminal Procedure. Though he opted to produce defence evidence but vide statement dated 13-2-2009 a joint statement was got recorded by all the accused persons that they did not want to produce any evidence in their defence.
6. After conclusion of the trial, the learned trial Court convicted and sentenced the appellant as detailed above. Hence, this appeal and Murder Reference. However, through the same judgment three co-accused of the appellant namely Imtiaz Hussain, Shahzad Ahmad and Muhammad Iqbal were acquitted of the charges while extending them benefit of doubt and their acquittal was not assailed any further as confirmed by the learned counsel for the complainant and the learned Deputy Prosecutor-General for the State.
7. Learned counsel for the appellant, .In support of this appeal, contends that the appellant has falsely been implicated in this case; that the occurrence took place in the dark hours of night and no source of light has been mentioned either in the F.I.R. Or statements of the witnesses of ocular account before the learned trial Court; that there is a delay of more than two hours in reporting the matter to the Police; that the. F.I.R. Was got registered after medical examination of the three injured witnesses, therefore, chances of consultation and concoction on the part of the complainant and Police cannot be ruled out; that according to contents of the F.I.R., co-accused of the appellant namely Imtiaz Hussain inflicted dagger blows to Nisar Ahmad alias Goonga (P.W.6), said Nisar Ahmad alias Goonga was examined before the learned trial Court through an interpreter and categorically stated that he was injured at the hands of Shehzad Ahmad instead of Imtiaz Hussain; that Nisar Ahmad alias Goonga (P.W.6) was not believed by the learned trial Court even qua the injuries sustained by him as both Imtiaz Hussain and Shahzad Ahmad were acquitted by the learned trial Court; that motive behind the occurrence as per F.I.R. Is that the appellant had committed theft in the flour machine of the complainant's side twice and he was apprehended and as such he nourished grudge and extended threats that he will take revenge for the same; that while appearing before the learned trial Court the complainant stated that a punchayat was convened with regard to the motive occurrence but no witness of that panchayat was produced during the investigation or before the learned trial Court; that three co-accused of the appellant have been acquitted by the learned trial Court on the basis of same evidence, therefore, the prosecution evidence which has been disbelieved by the learned trial Court to the extent of acquitted co-accused of the appellant cannot be believed against the appellant without there being any independent and strong corroboration, which is very much lacking in this case; that the prosecution has miserably failed to connect the appellant with the commission of crime and the appellant deserves acquittal.
8. On the other hand, learned Deputy Prosecutor-General assisted by learned counsel for the complainant opposes this appeal on the grounds that the appellant is nominated in the F.I.R. With the specific allegation of inflicting dagger blows to the deceased and two injured witnesses; that the complainant stated during the course of cross-examination that there was some moon light and electric light was also on at that the time of occurrence; that even otherwise the complainant's side and the assailants belong to the same vicinity and as such there is no question of misidentification; that the ocular account in this case was furnished by three injured witnesses including the complainant; that eye-witness account is exactly in line with the medical evidence; that the prosecution case is corroborated by the recovery of dagger at the instance of the appellant and positive report of Chemical Examiner; that the motive has also been proved; that the appellant's case is quite distinguishable from that of his acquitted co-accused as none of them of accused of causing any injury to the deceased; that the prosecution has successfully brought home guilt of the appellant to the hilt and there is no merit in this appeal; that the appellant acted in a brutal and callous manner and as such, deserves no leniency even in the quantum of his sentence.
9. We have heard learned counsel for the appellant as well as the learned Deputy Prosecutor- General for the State assisted by learned counsel for the complainant at a considerable length and have also 'gone through the record.
10. In this case, the occurrence, as per F.I.R. (Exh.PJ), took place on 19-8-2008 at 10-00/10-30/11-00 p.m. In mauza Kothay Saria situated four kilometers in the east of Police Station Lassar Kalan, District Narowal. The matter was reported to the Police through the statement of Mst. Ramzan Bibi complainant (P.W.4) on 20-8-2008 at 1-15 a.m on the basis whereof formal F.I.R. Was registered on the same night at 2-00 a.m vide Rapt No.28. Four persons namely Faryad Ali, Muhammad Usman (P.W.5), Nisar Ahmad alias Goonga (P.W.6) and Mst. Ramzan Bibi complainant (P.W.4) were initially injured. All of them were shifted to the Civil Hospital Shakargarh, District Narowal and one namely Faryad Ali later on succumbed to the injuries. Mst. Ramzan Bibi (P.W.4), Muhammad Usman (P.W.5) and Nisar Ahnaad alias Goonga (P.W.6) were medically examined on the same night. Considering the circumstances of the case, such as time of occurrence, place of occurrence and social status of the parties we are of the view that there was no deliberate or conscious delay in reporting the matter to the Police. Objection of learned counsel for the appellant that F.I.R. Was got registered after medical examination of Mst. Ramzan Bibi complainant (P.W.4), Muhammad Usman (P.W.5) and Nisar Ahmad alias Goonga (P.W.6) does not hold much water as both these injured were got medically examined by the Police and even otherwise the first and foremost priority of the kith and kin of injured in such like cases is to rush for medical treatment instead of having resort to the Police.
11. The ocular account was furnished by Raman Bibi complainant (P.W.4) Muhammad Usman (P.W.5), maternal nephew (Bhanjha) of the complainant and Nisar Ahmad alias Goonga (P.W.6) son of the complainant. The occurrence took place in the street outside the house of the complainant party. Presence of the complainant, her son and Bhanjha in the house of the complainant at odd hours of the night is quite probable and natural specially when all these three witnesses of the ocular account had stamp of injuries on their person and two of them namely Muhammad Usman and Nisar Ahmad alias Goonga were examined at 11-30 p.m. On 19-8-2008 i.e. Just after one hour of the occurrence. It is true that in the F.I.R. As well as in the examinations-in- chief of the witnesses of ocular account no source of light has been mentioned but the situation was got clarified by the defence when the complainant stated during the cross-examination that there was some moonlight and electric light was also on at, that time. Mordver both the parties were residents of the same vicinity and known to each other and in such situation question of misidentification of the appellant does not arise at all.
12. In the F.I.R. It was the case of the complainant that Imtiaz Ahmad injured Nisar Ahmad alias Goonga with his dagger. Nisar Ahmad alias Goonga (P.W.6) was dumb. He was examined by the learned trial Court through an interpreter and he levelled the allegation of causing him dagger blow on right side of upper lip to Shahzad Ahmad, co-accused of the appellant. Said Shahzad Ahmad was acquitted of the charge by the learned trial Court. In the circumstances, the evidence of Nisar Ahmad alias Goonga was not believed by the learned trial Court qua the injuries sustained by him and as such same is straightway excluded from consideration against appellant. However, in criminal cases it is the quality and not the quantity of the evidence which settles the guilt or innocence of the accused and in this case even after excluding the evidence of Nisar Ahmad alias Goonga (P.W.6) we are left with the testimonies of Mst Ramzan Bibi complainant (P. W .4) and Muhammad Usman (P.W.5).
13. It is the case of the prosecution in the F.I.R. And before the learned trial Court that Ishtiaq Ahmad (appellant) gave dagger blows to Faryad Ali on his head, arm and back. Dr Muhammad Latif Afzal (P.W.1) conducted post mortem examination on the dead body of Faryad Ali (deceased) and noted the following injuries:--
(i) An incised wound 1-1/2 cm x 1.Cm on the lateral aspect, of right forearm.
(ii) Two incised wounds a. 3 cm x 1 cm b. 3-1/2 cm x 2 cm on the back of left side of chest. An incised wound 3-1/2 cm x cm on the back of chest 23 cm from the vertebral column.
(iv) An incised wound 3 cm x 1 cm on the front of left shoulder.
(v) An incised wound 3-1/2 cm x 1 c.m. On the left shoulder.
(vi) An incised wound 4 cm x 1.Cm on the left forearm.
(vii) An incised wound 5 x 1 cm left forearm near the wrist.
(viii)An incised wound 5 cm x 2 cm on the back of left lumber region.
(ix) An incised wound 3 cm x 2 cm on the back of left lumber region 3 cm from the injury No. Viii.
(x) An incised wound in the front of left side of chest middle part.
' Similarly injuries on right breast and right arm of the complainant were attributed to the appellant.
In the MLR (Exh.PK) of the complainant conducted by Dr. Zahida Imtiaz (P.W.3) following injuries were noted on her person:--
(i) An incised wound 6 x 1.5 c.m on the lateral aspect of middle of right arm. It was muscle deep collated blood was present.
(ii) An incised wound 2 c.m x .5 cm on the upper outer quadrant of right breast.
(iii) An incised wound 1.5 c.m x .5 c.m behind the injury No.2.
' In her examination-in-chief, the complainant did not mention injuries on the person of Muhammad Usman (P.W.5), however, situation was got clarified in the cross-examination when the complainant stated that Ishtiaq Ahmad (appellant) caused injuries to. Muhammad Usman (P.W.).
Muhammad Usman (P.W.6) while entering in the witness, box corroborated the statement of the complainant vis-a-vis the injuries sustained by him (P.W.6). As per Medico-legal Report (Exh.PG) following' injuries were noted on the person of Muhammad Usman (P.W.6):--
(i) An incised wound 7 c.m x 1-1/2 c.m on the lateral aspect of right forearm bone was exposed, clotted blood was present on the wound margin.
(ii) An abrasion 2 cm x 1/2 cm on the right hand index finger.
' In view of the above we hold that medical evidence is exactly in line with the ocular account.
14. Recovery of dagger (P.4) at the instance of the appellant and taken into possession vide recovery memo. (Exh.CW.6/1) is immaterial because in the recovery memo it is nowhere mentioned that the same was stained with blood and moreover no report of Serologist qua the dagger is available on the record.
15. Motive behind the occurrence as alleged in the F.I.R. Was that Ishtiaq Ahmad (appellant) came at the flour machine twice in order to commit, theft who was apprehended. Ishtiaq Ahmad stated that a false allegation of theft had been levelled against him and for that reason he would punish the complainant party. On 19-8-2008 Ishtiaq Ahmad (appellant) after having a chance caused injuries to Faryad Ali and others with intention to commit their murder. During the cross- examination the complainant stated that. a Punchayat was held with regard to the motive part of the occurrence but admitted that no witness of punchayat was produced during the investigation.
Therefore, we hold that the prosecution has failed to establish the motive part of the occurrence.
16. The appellant cannot get any benefit from the acquittal of his co-accused namely Imtiaz Hussain, Shahzad Ahmad and Muhammad Iqbal because as per F.I.R., private complaint and statements of the witnesses recorded by the learned trial Court no injury to the deceased or anybody else was attributed to Shahzad Ahmad and Muhammad Iqbal. Though injury on the person of Nisar Ahmad alias Goonga (P.W.6) was attributed to Imtiaz Hussain but while appearing before the learned trial Court said Nisar Ahmad alias Goonga was examined through an interpreter and he specifically attributed injury on the right side of upper lip to Shahzad Ahmad. The appellant has, however, been attributed successive dagger blows to Faryad Ali, Mst. Ramzan Bibi and Muhammad Usnian.
17. Even if the evidence of motive and recovery of dagger are excluded from consideration, there remains sufficient incriminating evidence against the appellant in the form of straightforward and confidence inspiring ocular account furnished by Mst. Ramzan Bibi complainant (P.W.4) and Muhammad Usman (P.W.5) fully supported by the medical evidence furnished by Dr. Muhammad Latif Afzal (P.W.1) and Dr. Zahida Imtiaz (P.W.3) to maintain conviction of the appellant under sections 302(b), 337-F(i), 337-F(iv) and 337-F(ii) P.P.C., which is accordingly maintained.
18. As far as quantum of sentence is concerned, we have noted that the appellant committed cold- blooded murder of a young son of the complainant aged 24 years by causing eleven incised dagger blows besides causing injuries to the complainant (P. W.4) as well as Muhammad Usman (P.W.5) and as such there is no mitigating circumstance in favour of the appellant. The learned trial Court has rightly awarded the normal penalty of qatl-e-amd to the appellant and in the circumstances he deserved nothing lesser than death sentence. While holding so, we are fortified by the dictum of law laid down by the Hon'ble Supreme Court of Pakistan in the case titled as "Asad Mahmood v. Akhlaq Ahmed and another" (2010 SCM R 868) wherein it was observed as under:-- "28. The penalty of death must be imposed if the Court finds the manner and method of incident to be in the nature of a brutality, horrific, heinous, shocking involving terrorist nature. Normal sentence in a conviction under section 302(b), P.P.C. Is death except where Court finds some mitigating circumstances which may warrant imposition of lesser sentence."
19. In this backdrop of the situation, we hold that the prosecution has fully proved its case against the appellant beyond any shadow of doubt, therefore, there is no merit in this appeal, which is hereby dismissed.
20. Murder Reference No.105 of 2009 for confirmation or otherwise of the sentence of death awarded to Ishtiaq Ahrnad alias Tak (convict) is answered in. The AFFIRMATIVE and the sentence of death is CONFIRMED.