' FAQIR MUHAMMAD KHOKHAR, J.--- The convict-petitioner seeks leave to appeal against judgment, dated 1-4-2002, passed by a learned Division Bench of the Lahore High Court, Lahore in Criminal Appeal No,145-J of 1998.
2. According to the prosecution case as narrated by Ghulam Rasool, complainant, in the F.I.R. That on 14-7-1995, he, after having a chat with his son Muhammad Fayyaz deceased, his brother Muhammad Amir and cousin Muhammad Siddique, went to sleep in the compound of his house along with his wife and children. At about 2-00 a.m. During the night they woke up upon barking of a dog and in the light of an electric bulb they saw the petitioner Mehfooz Alam and his co-accused Fayyaz Khaliq alias Pappu, both armed with pistols .30 bore. Muhammad Fayyaz stood up and started proceeding towards the petitioner and his co-accused whereupon the petitioner fired a shot at him hitting his left side of chest who fell down. The complainant took the petitioner in his clasp. The co-accused Fayyaz Khaliq alias Pappu fired at the complainant hitting him on his left buttock and right thigh, whereupon he released the petitioner. Muhammad Fayyaz succumbed to the injuries at the spot. The motive for the offence was that some time prior to the occurrence the petitioner had attempted to commit sodomy with Muhammad Fayyaz for which a criminal case F.I.R. No,90 of 1994 under sections 377/511, P.P.C. Read with section 12 of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, was registered against him.
3. The petitioner and Fayyaz Khaliq alias Pappu were tried by the Additional Sessions Judge- I/Special Judge, Suppression of Terrorist Activities, Mianwali. They were convicted under section 302(b)/34, P.P.C. By the trial Court, by judgment, dated 31-10-1998. The petitioner was sentenced to death whereas co-accused Fayyaz Khaliq alias Pappu was sentenced to imprisonment for life. The petitioner and co-accused Fayyaz Khaliq were also ordered to pay a sum of Rs,50,000 and Rs,30,000 respectively as compensation under section 544-A, Cr.P.C. To the heirs of the deceased or in default of payment to undergo R.I. For six months each. They were also convicted under section 460, P.P.C. And were sentenced to R.I. For 10 years each. The sentences of imprisonment were ordered to run concurrently. Another co-accused Khurshid Alam was acquitted of the charge of abetment by giving him the benefit of doubt. The petitioner preferred Criminal Appeal No,145/J of 1998 against his conviction and sentence of death which was dismissed by a learned Division Bench of the Lahore High Court, by the impugned judgment dated 1-4-2002 with the modification that in case of his failure to pay compensation, he would undergo S.I. For six months instead of R.I.
For six months. The other co-accused Fayyaz Khaliq was acquitted by extending him the benefit of doubt. Hence this petition by the convict-petition for leave to appeal.
3. The learned counsel for the petitioner argued that the prosecution had failed to prove its case against the petitioner beyond reasonable doubt. The learned counsel emphasized that the eye- witnesses of the occurrence were related inter se and were inimically disposed towards the petitioner. The F.I.R. Was lodged after deliberations and consultations with a delay of four hours.
Only one fire shot was attributed to the petitioner and the other to the co-accused Fayyaz Khaliq who was acquitted by the High Court. The alleged weapon of offence and empties were not timely sent by the police to the Forensic Science Laboratory. It was a night time occurrence. The police did not seem to have taken into possession the electric bulb nor was the same exhibited during the trial. The ocular version was in conflict with the medical and other evidence on record. Therefore, the same could not be relied on in view of the Article 102 of the Qanun-e-Shahadat Order, 1984 in view of the law laid down in the case of Islam-ud-Din v. Allah Rakha Sajid 1988 SCM R 1989. The learned counsel also relied on an unreported judgment, dated 4-12-2003 of this Court in Criminal Appeal No,9(S) of 2003 in the case titled as Ziaullah alias Jajj v. The State. It was lastly contended that co-accused Fayyaz Khaliq alias Pappu and Khurshid Alam had already been acquitted in the case and the motive was also not proved.
4. On the other hand, the learned counsel for the State submitted that the trial Court as well as the High Court properly appreciated the evidence on record and found the petitioner guilty of the offence of murder of Muhammad Fayyaz. The presence of the eyewitnesses in the house of the complainant was natural and their evidence was confidence inspiring. The report of the Forensic Science Laboratory was also positive. The ocular version was supported by the medical evidence.
5. We have heard the learned counsel for the parties at length and have also perused the available record. P.W.9 Ghulam Rasool, the complainant, was an injured eye-witness in whose house the occurrence of the murder of his son had taken place. All the eye-witnesses had clearly stated that at the time and place of occurrence the electric light was on. The blood-stained earth was also collected from the spot. The eye-witnesses, although related inter se, were the natural witnesses of the occurrence. The medical evidence also supported the ocular version of the case. The report of the Forensic Science Laboratory was positive. The precedent cases relied on by the learned counsel involved facts and circumstances different from the present case. In the absence of any exceptional circumstances, we are not expected to re-appreciate the evidence which has already been properly appraised by the High Court and the trial Court. The prosecution had succeeded in proving its case against the petitioner to the hilt. No mitigating circumstances were shown in favor of the petitioner for the lesser penalty. The impugned judgment does not suffer from any error of law or fact so as to warrant interference by this Court.
5-A. For the foregoing reasons, we do not find any merit in this petition which is dismissed and leave to appeal is refused accordingly. The death sentence of the petitioner as awarded by the trial Court and confirmed by the High Court is maintained.