Abdul Hameed Dogar, J.--Petitioners seek leave to appeal against the judgment dated 5.4.2006 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby Criminal Appeal No. 1072 of 2000 filed by them was partly allowed. The conviction under Section 302(b) PPC was maintained whereas the sentence of death was converted into imprisonment for life each.
However, the amount of Rs. 50,000/- as compensation under Section 544 Cr.P.C. was enhanced to.
Rs. 1,00,000/- each or in default to undergo S.I for six months each. The sentence of fine of Rs.
20,000/- imposed by the trial Court was set aside. However, the benefit of Section. 382 Cr.P.C. was given to them.
2. Briefly, stated the facts of the case are that on 25.12.1996 at 4.15 p.m Sher Muhammad complainant lodged FIR at Police Station Sadar Jhang wherein he alleged that on the same day at 3.00 p.m. he along with Murtaza alias Pappu, Sajjad,,Ahmad and Muhammad Anwar while on their way back to the village after having delivered sugarcane at Sultanpura Kanda reached at Kacha road near Thatha Romana, petitioner Naik Muhammad alias Naika armed with .8 MM rifle, petitioner Said armed with .7-MM rifle alongwith acquitted accused Amir and Haider armed with hatchet emerged from the sugarcane crop. Acquitted accused Haider instigated his co-accused that a lesson be taught to Murtaza for assisting Waris in the theft committed at his house (Jhuggi). In the meanwhile, petitioner Said fired a shot which hit Murtaza on his arm near left shoulder. Murtaza ran towards the Barseen crop when petitioner Naik Muhammad alias Naika fired a shot from his rifle hitting him on his left flank, as a result whereof Murtaza fell down. The complainant, PWs Sajjad and Muhammad Anwar took ' shelter in the nearby watercourse and saw the incident.
3. The motive as stated is that Naik Muhammad and Said petitioners had committed theft in the house of Waris, a close relative of the complainant. The complainant and his son Murtaza deceased was extending help to Waris in that connection which nourished a grudge in the mind of petitioners. A few days prior to the occurrence when complainant alongwith Muhammad Aslam and Haq Nawaz PW-10 was present at his Dera, the acquitted accused Sher, Kanda, Zulfiqar, Humayun and Allah Yar came there and asked the complainant to restrain his son Murtaza from helping Waris, otherwise he would be killed.
4. On 26.2.1997 petitioner Naik Muhammad was arrested along-with .8-mm rifle and six bullets. On 30.3.1997 petitioner Said was arrested and .7-mm rifle alongwith four cartridges were recovered from his possession.
5. On completion of investigation, petitioners and their co-accused were sent up to face trial before the learned Additional Sessions Judge, Jhang. In order to establish its case, the prosecution examined twelve witnesses, namely, Qamar-uz-Zaman PW-1, Mushtaq Hussain, Revenue Patwari PW-2, Dr. Mansoor Ahmad Cheema, M.O. PW-3, Riaz Hussain, ASI PW-4, PW-5 Muhammad Anwar, PW-6 Zafar Hayat, PW-7 Muhammad Siddique, Inspector, Sher Muhammad PW-8, Muhammad Anwar PW-9, Haq Nawaz PW-10, Naib Ali S.I. PW-11 and Jan Muhammad, S.I/SHO PW-12.
6. On 26.12.1996 PW-3 Dr. Mansoor Ahmad. Cheema, Medical Officer, DHQ Hospital Jhang, conducted the post mortem examination of the dead body of Murtaza alias Pappu deceased and noticed the following injuries on his person: (i)A fire-arm wound of entrance with inverted margins .2 cm x 1.5 cm on the outer side of the right chest lower part.
(ii)A fire-arm wound of exit with averted margins 4 cm x 3 cm on the outer side of left chest middle part about 5 cm lateral, from left nipple.
(iii)A fire-arm wound of entrance with inverted margins 1.5 cm x 1 cm on the outer side of left upper arm, upper part.
(iv)A fire-arm wound of exit with averted margins 3 cm x. 2 cm on the inner side of left upper arm, upper part.
7. The petitioners in their respective statements recorded under Section 342 Cr.P.C. claimed innocence. They deposed that PWs are close relatives of the deceased and inimical towards them.
The local MPA Maher Muhammad Nawaz Bharwana was inimical towards them. He got them falsely involved in this case in league with the complainant. They did not examine themselves on Oath as required under Section 340(2) Cr.P.0 but produced Akbar Ali, S.I. DW-1 and Ghazanfar Hayat DSP DW-2 in their defence.
8. On conclusion of trial, the learned trial Court convicted the petitioners under Section 302/34 PPC and sentenced them to death each with fine of Rs. 20,000, each or in default to further undergo R.I. for six months. They were also directed to pay Rs. 50,000/- each as compensation under Section 544-A Cr.P.C. to the legal heirs of the deceased or in default to undergo six months R.I., whereas accused Amir, Haider, Sher, Kanda, Zulfiqar, Hamyun and Allah Yar were acquitted while giving them the benefit of doubt.
9. Feeling aggrieved from the conviction and sentence, petitioners preferred Criminal Appeal No. 1072 of 2000. Before the learned High Court, which was partly allowed as, stated above.
10.We have heard Syed Rafaqat Hussam Shah, learned ASO for the petitioners and Ch. Munir Sadiq, learned Deputy Prosecutor General Punjab and have gone through the record and the proceedings of the case in minute particulars.
11.Learned counsel appearing on behalf of the petitioners mainly contended that the petitioners have been falsely implicated in the case. He further contended that on identical evidence co- accused, namely, Amir, Holder, Sher, Kanda, Zulfiqar, Hamyun and Allah Yar had been acquitted by the learned, trial Court, therefore, the benefit of doubt should also have been extended to the petitioners. The learned counsel challenged the ocular evidence on the ground that PW-8 Sher Muhammad is the real father and PW-9 Muhammad Anwar is cousin of the deceased and are the chance witnesses. According to him, there are material discrepancies in the medical evidence and the ocular evidence.
12.The learned counsel for the State supported the impugned judgment and contended that the conviction and sentence were rightly awarded to them by the trial Court and affirmed by the High Court and the petitioner has not been able to show any reason for his false implication in the case.
He further contended that it was a day light occurrence and the FIR was lodged promptly.
According to him the learned trial Court has acted on the principle of sifting the grain from the chaff.
13.We have gone through the evidence and the judgments of both the Courts below and do not find any illegality, misreading or non-appreciation, which otherwise is convincing and truthful. The ocular evidence furnished by PW-8 Sher Muhammad and PW-9 Muhammad Anwar was found to be credit worthy by the trial Court as well as the learned High 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 the PWs are closely related to the deceased but fact of the matter remains that mere relationship of the witnesses with the deceased per se would not render them interested or partisan witnesses.
Prosecution having proved the guilt of the petitioner by strong motive, ocular-reliable testimony coupled with corroborative medico legal opinion and recovery of crime weapons, we are unable to subscribe to the view of the learned counsel for the petitioners that there is a conflict between the ocular and medical evidence. Regarding the argument of the learned counsel for the petitioners that on identical evidence co-accused had been acquitted by the learned trial Court, we have considered this argument with utmost care and found from the record that fire-arm injuries attributed to the acquitted accused was not established on record from the medical evidence, therefore, learned trial Court, neither acted illegally nor arbitrarily in extending the benefit of doubt to the acquitted accused. At any event, case of the petitioners is distinguishable and not at par with that of co-accused, since acquitted. Before the learned High Court, the learned counsel appearing on behalf of the petitioners did not press the appeal on merits but urged for reduction of sentence alone. As according to him mitigating circumstances existed on record in their favour. In view of this, learned counsel appearing on behalf of the petitioners cannot argue the case on merits. The main ground which weighed with the learned High Court as an extenuating circumstance to reduce the sentence was that though one shot each was attributed to the petitioners but which of the shot was fatal, was not ascertainable from the medical evidence. In support of this, the learned High Court relied upon the case of Allah Dad & another v. The State (1995 SCM R 142), wherein mitigating circumstance to alter the sentence of death to imprisonment for life was that record did not show with certainty that the shot fired by appellant Allah Ditta proved fatal or that of other appellant.
14.Accordingly, we do not find any reason to interfere with the impugned judgment, thus the petition being devoid of force is dismissed and leave to appeal refused.