MUSHTAQ AHMAD Versus STATE

1. JAVID IQBAL, J.- -There are two appeals before us namely Criminal Appeal No. 24 of 1979 filed by Mushtaq Ahmad convict appellant and Criminal Appeal No. 80 of 1982 filed by Zahoor Ahmad alias Billi convict-appellant through jail as of right. Dr. Khalid Ranjha, Advocate who has appeared on behalf of Mushtaq Ahmad appellant in Criminal Appeal No. 24 of 1979 submits that he had received no instructions from his client, and he is of the view that Mushtaq Ahmad appellant has already undergone his sentence. He is, therefore, not pressing the said appeal. Consequently Criminal Appeal No. 24 of 1979 is hereby dismissed as not having been pressed.

2. Mr. M.A. Pirzada, Advocate is appearing in Criminal Appeal No. 80 of 1982 on behalf of Zahoor Ahmad alias Billi appellant. The background is that Zahoor Ahmad alias Billi appellant and Vushtaq Ahmad co-accused were originally tried by the Sessions Judge, Bahawalpur for an offence under section 302/34, P.P.C. The name of the deceased in the instant case was Rehmat Ali. The trial Court vide its judgment, dated 12th July, 1973 acquitted them of the charge under section 302/34, P.P.C. and instead convicted both of them under section 304, Part II, P.P.C. whereunder Zahoor Ahmad alias Billi appellant was sentenced to seven years' R.I. and Mushtaq Ahmad co-accused was sentenced to five years' R.I. Zahoor Ahmad alias Billi appellant was to pay a sum of Rs.10,000 as compensation to the heirs of the deceased, whereas Mushtaq Ahmad co-accused was to pay Rs.5,000 as such compensation. The aforesaid judgment of the trial Court was challenged by the State in appeal which was heard by a Division Bench of the Lahore High Court, Bahawalpur Circuit, Baghdadul Jadid, which vide its judgment, dated 19th February, 1976 accepted the State appeal altering their conviction from under section 304, Part II, P.P.C. to one under section 302/34, P.P.C. for the murder of Rehmat Ali deceased, and Zahoor Ahmad alias Billi appellant was sentenced to death plus a fine of Rs.1,000 to be paid as compensation to the heirs of the deceased, whereas Mushtaq Ahmad co-accused was sentenced to imprisonment for life plus fine of Rs.5,000 to be paid as such compensation.

3. Briefly the facts are that Muhammad Salim P.W. complainant, at the relevant time, was a school-going student, and residing with his father Rehmat Ali deceased in Model Town, Bahawalpur. Zahoor Ahmad alias Billi appellant who was a bad character and a resident of the same area, about 3/4 months before the present occurrence, tried to develop friendship with Muhammad Salim P.W. But Muhammad Salim P.W. refused to have any relationship with him. He also informed his father Rehmat Ali deceased about this matter and Rehmat Ali deceased is stated to have reproached Zahoor Ahmad alias Billi appellant on this account. Anyway, Zahoor Ahmad alias Billi appellant did not refrain from asking Muhammad Salim P.W. to have friendship with him. On one or two occasions when he approached Muhammad Salim P.W. Mushtaq Ahmad co-accused was also with him. On the fateful day i.e. 17th January, 1973 at 5-30 p.m. Muhammad Salim P.W. came out of his house and saw Zahoor Ahmad alias Billi appellant and Mushtaq Ahmad co-accused standing in front of his house in the lane. Both of them tried to call him but he did not go to them. Thereafter, Mushtaq Ahmad co-accused is stated to have thrown a Malta at him. On this Muhammad Salim P.W. went back to his house and told his father Rehmat Ali deceased who at that time was taking his meals. On hearing the complaint of his son Rehmat Ali deceased came out with him and admonished both Zahoor Ahmad alias Billi appellant and Mushtaq Ahmad co-accused. Since he was speaking in a loud voice some of the neighbours were also attracted to the scene of crime namely Firdous Akhtar, Abdur Rahim and Abdul Ghafoor P.Ws. In the meantime Mushtaq Ahmad co-accused is stated to have caught hold of Rehmat Ali deceased, then came forward Zahoor Ahmad alias Billi appellant who inflicted Khanjar blows on the left thigh of Rehmat Ali deceased. Muhammad Salim P.W. while trying to rescue his father also received some injuries on his left hand. Abdur Rahim, Firdous Akhtar etc. tried to rescue Rehmat Ali deceased but they were threatened not to come near. After inflicting injuries to Rehmat Ali deceased both of them ran away. Rehmat Ali deceased fell down on the ground in an injured condition. Muhammad Salim P.W. put his injured father in the car and alongwith other P.Ws. took him to the hospital but Rehmat Ali deceased died on reaching hospital after about 20 minutes. The matter was reported to the police and a case was registered on the statement of Muhammad Salim P.W. which was recorded at 6-45 p.m. on the same day at the hospital. From the spot apart from the blood-stained earth, Malta was also picked up. Zahoor Ahmad alias Billi appellant was arrested on 19th January, 1973 and he led to the recovery of human blood-stained Khanjar. Mushtaq Ahmad co-accused was arrested on 20th January, 1973. According to the medical evidence Rehmat Ali deceased had a stab wound on the posterior surface of left thigh, upper most part just below the hip, and another stab wound on the lower part of left thigh. In the opinion of the doctor death occurred as a result of the injuries caused by a sharp-edged weapon and which were sufficient to cause death in the ordinary course of nature, as the big feneral artery was completely cut.

4. The prosecution case was based on the ocular testimony of the eye-witnesses corroborated by the recovery evidence and supported by the medical evidence as well as the motive version. The plea of Zahoor Ahmad alias Billi appellant was that he caused injuries to Rehmat Ali deceased in the exercise of his right of self-defence.

5. We have heard the learned counsel for the parties. The fact that Zahoor Ahmad alias Billi appellant caused injuries to Rehmat Ali deceased which eventually led to his death has not been denied by him. A perusal of the record indicates that it was neither a sudden flare up nor was the right of self-defence available to Zahoor Ahmad alias Billi appellant in the circumstances of the case. In that view of the matter there was no justification on the part of the trial Court to acquit Zahoor Ahmad alias Billi appellant of a charge under section 302/34, P.P.C. and instead to convict and sentence him under section 304, Part II, P.P. C. Consequently in our view the High Court correctly accepted the State appeal in this case and altered the conviction and sentence awarded to Zahoor Ahmad alias Billi appellant. At this stage learned counsel attempted to argue that at the time of the commission of crime Zahoor Ahmad alias Billi appellant was aged 17/18 years and was a student of matrio class, and that furthermore, he was arrested in 1973, was first convicted and sentenced by the trial Court in the same year and thereafter his conviction and sentence were altered in 1976. In other words it is now about 15 years that he had been implicated in this case. It was also submitted that he had not caused injuries to Rehmat Ali deceased on a vital part. It was, therefore, submitted that a case was made out for the awarding of lesser penalty to him even if his conviction under section 302/34, P.P.C. was to be maintained. We do not agree with the learned counsel, for in out view there is no mitigating circumstance in the instant case. Zahoor Ahmad alias Billi appellant tried to develop friendship with Muhammad Salim P.W. who was a school boy and when he refused or complained to his father about it, Zahoor Ahmad alias Billi appellant who carried a special type of Khanjar did .not hesitate to attack the father of the boy namely Rehmat Ali deceased when he reproached him for his behaviour. In these circumstances he deserves no leniency.

6. In the light of the above discussion no case is made out for interference in the judgment of the Lahore High Court, Bahawalpur. Circuit, Baghdadul Jadid. As a result Criminal Appeal No. 80 of 1982 is also hereby dismissed.

7. M. I. /M-249/S Appeals dismissed.