Abdul Hameed Dogar, J.--Petitioner seeks leave to appeal against the judgment dated 20.5.2002 of a learned Division Bench of Lahore High Court, Lahore, whereby Criminal Appeal No, 44-J of 2002 filed by him and Criminal Revision No, 280 of 2002 filed by State were dismissed and sentence of death awarded by the trial Court was confirmed.
2. Briefly, stated, the facts of the case are that on 30.7.2000 Muhammad Anwar Khan, Constable No, 937 lodged FIR No, 120/2000 under Sections 302/353/186 PPC at Police Station Kamar Mashani, District Mianwali, wherein he alleged that on the day of occurrence i.e. 30.7.2000 he alongwith Muhammad Amir Constable, Muhammad Ayub and Khaliq Dad ASI were on patrolling duty in official Vehicle No, MLA-7679. At about 10.15 p.m. when they reached Bus Stop of Manda Khel, a spy information was given to them that two absconders, namely, Atta Muhammad and Abdul Razzaq, who were the accused in Case FIR No, 85/2000, registered on 3.6.2000 at Police Station Kamsar Mashani, District Mianwali under Section 302/34 PPC were present at the Dera of petitioner and if a raid was conducted they could be arrested. Thereafter on the same day, at 12.30 p.m. a raid was conducted at the Dera of petitioner who was sitting on a cot armed with a .12 bore pistol. They were encircled and enquired loudly about the presence of Atta Muhammad and Abdul Razzaq absconders. Petitioner told that both of them had gone away. Complainant party directed him to hand over his pistol to them but he refused. In the meanwhile deceased Khaliq Dad, ASI tried to overpower petitioner whereupon he fired a shot at him which hit on this chest towards the left side who fell down and died at the spot.
3. On conclusion of investigation, petitioner was sent up to the Court of Special Judge, Anti- Terrorism, Sargodha, to face trial. A charge under Sections 302/353/186/212 PPC and Section 7 of the Anti-Terrosim Act. 1997 was framed against petitioner, to which he pleaded not guilty and claimed trial.
4. Prosecution examined eight witnesses in order to prove its case.
5. On autopsy, Dr. Mehr Khan, Medical Officer DHQ Hospital, Mianwali !PTV-1) found the following injury on the person of deceased: "An entry wound of fire-arm 3 cm x 21/2 cm. Over the front of left chest, just over the nipple, with blackening around and burnt margins."
6. Petitioner in his statement recorded under Section 342 Cr.P.C., denied the case of the prosecution and claimed innocence. On a question 'as to why this case against him', he stated as under: "Atta Muhammad and Abdul Razzaq against whom a case under Section 302 PPC was allegedly registered are not even known to me. Neither the FIR nor any other documentary evidence nor oral evidence had been produced by the prosecution to substantiate the motive against me as I had no relation with the aforesaid accused. So the question of their arrival at my Dera does not arise.
On 30.7.2000 in the early dark hours of the morning the people of the vicinity informed the local police about killing of deceased who was laying unattended in the Mongi crop. The Police reached there. They enquired from me about the death of the deceased. My reply infuriated the police. They took me to police station and got me involved in this case. I never committed the murder of Khaliq Dad. I never possessed any illicit arms. I am innocent. Khalid Dad deceased was not a man of goods reputation. He met this death under some mysterious circumstances.'
7. He neither examined himself on Oath as required under Section 340(2) Cr.P.C. Nor led any evidence in defence.
8. On the 'conclusion of trial, petitioner was convicted under Section 302(b) PPC and sentenced to death. He was also directed to pay Rs, 1,00,000/- as compensation to the legal heirs of the deceased or in default thereof to further suffer six months S.I. in case of non-payment, the amount of compensation shall be recoverable as arrears of land revenue. He was also convicted under Section 7 of the Anti-Terrorism Act, 1997 and sentenced to death. He was furthered convicted under Section 353 PPC and sentenced two years R.I.
9. Being aggrieved, petitioner challenged the judgment in appeal before learned Lahore High Court, Lahore which, was dismissed vide impugned judgment.
10.We have heard Syed Ali Hassan Gilani, learned ASC for petitioner and have gone through the record and the proceedings of the case in minute particulars.
11.It is mainly contended by the learned counsel for petitioner that the impugned judgment is erroneous, untenable in law, unjust and is based upon conjectures and surmises. He maintained that the ocular evidence is contradicted by the medical evidence and suffers from material discrepancies. He pointed out that the case of the prosecution is based on interested and inimical evidence, as such, it requires independent corroboration which is lacking in this case. According to him it was an unseen incident and there is no independent witnesses to substantiate the case. He contended that the ocular evidence furnished by the prosecution is consisting of police officials and no independent witness has been cited and , therefore they are interested witnesses and their testimony is not free of doubt and should not be accepted without any independent corroboration.
12. The ocular straightforward and consistent testimony furnished by complainant Muhammad Anwar Constable (PW-5) and Muhammad Amir (PW-6) was found to be credit worthy by the trial Court as well as the First Appellate Court. Being a policeman, there is no bar to accept his testimony. His evidence should be accepted like other prosecution witnesses and if it fulfils and such conditions which are necessary for accepting and believing a witness, it cannot be discarded.
There is a growing tendency, as has been observed in several judgments of the superior Courts, that public neither voluntaries to become witness nor the eye-witnesses come forward to help the investigation. Such reluctance on the part of the general public may be due to various reasons including the fear from persons of impeachable ' and dubious character who are dangerous, desperate and revengeful. It has become a common feature which can be noticed that in cases of dacoity, kidnapping for ransom, recovery of big hauls of heroin drugs, and prohibited arms, the eye-witnesses prefer either to avoid or refuse to testify anything' due to fear and risk to personal safety. These are some of the explainable factors and circumstances which may justify acceptance of testimony of Police Officer which otherwise does not suffer from infirmity. There appears to be no inherent defect or material lacuna in the evidence of both the witnesses whose presence at the site has been established beyond any reasonable shadow of doubt. The prosecution has fully proved its case by producing cogent evidence to the extent that it was petitioner who fired at the deceased. Though the witnesses were cross examined yet their evidence was not shattered at all. Both the eye-witnesses have categorically stated in their statements that the deceased sustained fire-arm injury on his chest. The callous and brutal manner in which petitioner acted in this case and caused fatal fire-arm injury, in our view, does not justify mitigation of sentence. In the even of proof of charge of qatl-e-amd normal penalty under the law is death and extenuating circumstances must be shown for taking a lenient view and for the award of lessor penalty, which do not appear to exist on the face of record. The learned counsel for petitioner has failed to point out any illegality or irregularity in the impugned judgment to warrant interference by this Court. The evidence of the police officials the natural witnesses has been believed by the two Courts below, therefore, we are not inclined to reappraise it as on the face of it, it does not seem to suffer from any infirmity.
13.For what has been stated above, we do not find any reason to interfere with the concurrent findings of two Courts below. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused.