IFTIKHAR ALIAS TINDA Versus THE STATE

SH. MUHAMMAD ZUBAIR, J------- The appellant was convicted under section 302, P.P.C. by the learned Additional Sessions Judge, Lahore vide his judgment dated 5-10-1988 and sentenced to death, plus a fine of Rs.10,000, or in default thereof further R.I. for two years. It was ordered that if the fine be realised, it would be paid to the legal heirs of the deceased. The appellant has filed the appeal through jail. The learned trial Judge has referred the case to this Court under section 374, Cr.P.C. for confirmation of the death sentence. We propose to dispose of both the matters by this judgment.

2. The occurrence in this case took place on 15-3-1987 at 1-00 p.m. in the area of Chah Miran Khurd at a distance of one k.m. towards eastern side of Police Station Misri Shah, Lahore and the F.I.R. Exh.P.A./1 was recorded on the statement of Imran Younas complainant (P.W.1) by Muhammad Rashid S.I. (P.W.10) at the said police station the same day at 1-40 p.m.

3. As for the main occurrence it was stated by the complainant that on 15-3-1987 he was present at his home when he heard noise of quarrelling of two persons, he saw in the street lftikhar alias Tinda son of Mehr Din appellant armed with a Khanjar in his hand saying to the deceased Anees that he should give Rs.100 to him just now, otherwise, he would lose his life. On his refusal on the plea that he had no money the appellant attacked on the deceased with a Khanjar which hit him on his left side of neck. The deceased fell down on the ground. The complainant tried to catch hold the appellant with the help of Muhammad Ilyas (P.W.8) and Fayyaz Rashid (P.W.9), but the appellant made good his escape while waiving Khanjar. Then they came towards the injured Muhammad Anees who succumbed to his injuries.

4. The investigation was conducted by Muhammad Rashid S.I. (P.W.10). He reached the place of occurrence and prepared rough sketch of the inquest report Exh.P.E. and sent the dead body of Anees to the mortuary for post mortem examination on 15-3-1987. He prepared rough sketch Exh.P.H. He took into possession blood-stained earth vide memo. Exh.P.F. and recorded the statements of the witnesses the same day at the spot. On the same day he arrested the appellant. On 16-3-1987 while in police custody the appellant led to the recovery of Khanjar Exh.P.l from the graveyard Tibba Changhran, which took the same into possession vide memo. Exh.P.B. He took into possession clothes of the deceased Kameez P.2, Bunyan P.3 and Shalwar P.4 vide memo. Exh.P.G. After completing all the formalities, the challan was submitted in the Court.

5. Dr. Rizwan Mahmood (P.W.6) on 16-3-1987 at 10-15 a.m. conducted the post-mortern examination on the dead body of Muhammad Anees and found the following injuries on his person:--

(1) Stab wound 2.5 c.m. x 1 c.m. present-on the left side of neck, 3 c.m. from the mid line and 9 c.m. below the left ear:

(2) Incised wound 2.5 c.m. x 1 c.m. present on left side of neck 4 c.m. from the mid line and 10.5 c.m. below left car, and its upper and joining injury No.l. It was muscle deep.

(3) Abraded area 5 c.m. x 2.5 c.m. present on right cheek.

In the opinion of doctor all the injuries were ante-mortem and caused by sharp-edged weapon, except injury No. 3 which was caused by blunt means. The cause of death was injury No.l, which was sufficient to cause death in the ordinary course of nature. Probable time between the injuries and death was soon after and between the death and post-mortem was within 18 to 24

6. Placing reliance on the ocular version furnished by Imran Younas (P.W.1), Saeed Muhammad Ilyas (P.W.8) and Fayyaz Rashid (P.W.10), fortified by the recovery of blood-stained Khanjar Exh.P.l., at the instance of the appellant, the learned trial Judge convicted the appellant and sentenced him as mentioned above.

7. The learned counsel for the defence appearing at State expense, has not seriously challenged the conviction of the appellant on merits but has vigorously argued that the sentence of death imposed upon the appellant needs consideration as the immediate cause of murder is shrouded in mystery.

8. The learned counsel for the State has supported the impugned judgment.

9. We have examined the respective submissions of the learned counsel for the parties and have gone through the record with their able assistance.

10. The learned counsel for the defence has rightly not challenged the conviction of the appellant on merits because there is overwhelming evidence of independent witnesses on the record, whose presence at the spot cannot be disputed being the witnesses from the locality where the A occurrence took place. These eye-witnesses have no animus against the appellant, neither any enmity was suggested nor proved, so we uphold the conviction of the appellant.

11. We have given our anxious consideration to this aspect of the case whether the sentence of death imposed upon the appellant needs consideration or not. We find in the present case there is no mitigating circumstance available on the record in favour of the appellant, accordingly, we dismiss the y appeal of the appellant and confirm his death sentence.

12. As the appellant was convicted by the learned Additional Sessions Judge vide his judgment, dated 5-10-1988, his case is covered by letter No.8/15/88-Ptns, Islamabad the 8th December, 1988 issued by the Ministry of Interior whereby the sentences of death of all the convicts were reduced to imprisonment for life which were awarded to them by the Military or other Courts up to the sixth of December, 1988. We hope that if the sentence of the appellant is not already commuted by the President of Pakistan, he would consider the request of the appellant sympathetically in the light of the letter referred to above, if moved.

N.H.Q./I-92/L Appeal dismissed