' JUSTICE DR. ALLAMA KHALID MAHMUD (MEMBER).---Petitioner seeks leave to appeal against the judgment, dated 24-9-2003 of learned Federal Shariat Court, whereby conviction and sentence under section 302(b), P.P.C. Of death awarded to him was maintained whereas co-convict Muhammad was acquitted under section 10(3) of the Offence of Zina (Enforcement of Hudood)
Ordinance, 1979 (hereinafter referred to as "the Ordinance") but was sentenced to 12 years' R.I.
Under section 18 of the Ordinance with benefit of section 382-B, Cr.P.C.
2. Briefly, stated, the facts of the case are that on 23-10-1996 at 2-30 p.m. Complainant Mst. Suhni (P.W.5) lodged F.I.R. At Police Station Kandiaro, District Naushahro Feroze, alleging therein that two days prior to the occurrence she along with her husband Amir Bakhsh and her sister Mst. Fatul went for Ziarat of Sehvan Sharif and after staying there two nights, they left for their village Ranipur by bus. However, when they reached at Kandiaro they were forcibly deboarded from the bus due to shortage of fare. Her husband went to the town for begging to arrange for the fare. There petitioner Nawab met them and he took them to his village enabling them to spend the night there. The complainant party stayed in the Otak of Sarwar Nangraj to spend a night. It was at mid-night time Mst. Fatul P.W.6 raised cries on which complainant and her husband woke up and saw that petitioner armed with gun and co-convict Muhammad were dragging Mst. Fatul out of Otak for committing Zina with her. The complainant's husband intervened on which petitioner fired a shot hitting him on his head. The deceased fell down on the ground and died at the spot. Petitioner and co-convict ran away from the spot.
3. Petitioner and co-convict Muhammad were arrested on 23-10-1996 and on the same day the petitioner got recovered .12 bore gun and two live cartridges.
4. On conclusion of investigation, both of them were sent up to face trial.
5. At the trial, the prosecution examined as many as 9 witnesses.
6. On autopsy, Dr. Muhammad Malook (P.W.2) found the following injuries on the person of deceased Amir Bukhsh:--
(i) Fire-arm wound of size 12 x 10 c.m. Removing left partial and occipital bone along with brain matter on left side with blackening around the wound and on front of face.
7. P.W.8 Lady Dr. Tasleem Memon on 23-10-1996 medically examined Mst. Fatul and opined that there was no sign of fresh coitus present, therefore, she belied the version of Mst. Fatul that she had been subjected to Zina by co-convict Muhammad.
8. Petitioner and co-convict in their respective statements recorded under section 342, Cr.P.C.
Denied the case of the prosecution and claimed innocence. They neither examined themselves on oath as required under section 340(2), Cr.P.C. Nor led any evidence in defence.
9. On the conclusion of trial, petitioner was convicted under section 302(b), P.P.C. And sentenced to death with fine of Rs,30,000 to be paid to the legal heirs of the deceased Amir Bakhsh under section 544-A, Cr.P.C. Or in default to suffer six months. However, co-convict Muhammad was convicted under section 10(3) of the Ordinance and was sentenced to 25 years' R.I. As Tazir.
10. Being aggrieved, petitioner and co-convict challenged the judgment in appeal before learned Federal Shariat Court, which was disposed as stated above.
11. We have heard Sardar Muhammad Siddique Khan, learned Advocate Supreme Court for petitioner and have gone through the record and the proceedings of the case in minute particulars.
12. It is mainly contended by the learned counsel for petitioner that the impugned judgment is erroneous, untenable in law, unjust and is based on non-appreciation of evidence. 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 evidence, as such, it requires independent corroboration which is lacking in this case.
13. The ocular straightforward and consistent testimony furnished by complainant Mst. Suhni (P.W.5) and Mst. Fatul (P.W.6) was found to be trustworthy by the trial Court as well as the First Appellate Court. 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. It is true that both P.Ws. Are close relatives of the deceased but fact of the matter remains that mere relationship of the witnesses with the deceased per se would not render them as interested or partisan witnesses. The prosecution has fully proved its case by producing cogent and convincing 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. However, it is proved from the record that at the time of incident co-convict Muhammad was empty- handed, therefore, the learned trial Court neither acted illegally nor arbitrarily in extending the benefit of doubt to him. The above ocular version is fully corroborated by medical evidence according to which death of Amir Bakhsh occurred due to fire-arm injury caused by petitioner.
Irrespective of the same, recovery of one empty cartridge from Otak of Gul Hassan and Sarwar Nangraj and a double-barrel gun with two cartridges further strengthens the case of prosecution.
Prompt recording of 164, Cr.P.C. Statement of victim Mst. Fatul in which she implicated the petitioner has been supported by P.W.4 Khair Muhammad the Magistrate. The factor that petitioner was a Tonga driver and took away to Otak the deceased, victim and Mst. Suhni on the pretext that there was no Musafir Khana and subsequently recovery of dead body from there is also a strong reason to believe that he has committed the crime. All the above circumstantial piece of evidence coupled with ocular testimony was sufficient to base conviction against petitioner. At any event, case of petitioner is distinguishable and is not at par with that of co-convict. 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 event of proof of charge of Qatl-e-Amd normal penalty under the law is death and exceptional circumstances must be shown for taking a lenient view and for the award of lesser 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 warranting interference by this Court.
14. 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 .
Leave to .