Muhammad Nawaz Abbasi, J.--This petition under Article 185(3) of the Constitution has been directed against the judgment dated 15.6.2005 passed by a learned Division Bench of High Court of Balochistan, Sibi Bench, whereby criminal appeal filed by petitioner against the conviction and sentence of death awarded to him by learned Judge, Anti-Terrorism Court, Sibi, vide judgment dated 11.6.2004, under Section 302(b)/34 PPC read with Section 7(a) Anti-Terrorism 'Act, 1997, was dismissed and murder reference was answered in the affirmative.
2. The facts giving rise to this petition, in small compass, are that on 17.3.2003 at about 11.55 a.m., Muhammad Murad, complainant, lodged report with police station, Usta Muhammad, District Jafferabad to the effect that on the same date the complainant alongwith Pehalwan (PW 2) and Mian Dad (given up) at 11.30 met his uncle, Ghulam Hussain and nephew, Fateh Ali together with Muhammad Hassan his relative and Manzoor Ahmed, his tenant outside the Sessions Courts at Usta Muhammad. Fateh Ali who had an Alto Car, on asking of complainant to take them with him in car apologized because Ghulam Hussain, Muhammad Hussain and Manzoor Ahmed also had to go with him in the car and the moment Fateh Ali and his companions occupied their seats in the car, the petitioner (Ranjhan) and Shakal (absconding accused) armed with Kalashnikov, suddenly appeared at the scene of occurrence on a motorcycle and opened firing at the car as a result of which all the persons sitting in 'the car having sustained injuries died at the spot. The accused after firing at the deceased escaped from the place of occurrence. The motive for the occurrence was the suspicion of the petitioner regarding the murder of his brother, Andan, by Ghulam Hussain, nephew of the complainant, and his companions. The investigation of the case was carried out by Mushtaq Ahmed, S.I. (PW 9) who on completion of the formalities, submitted challan in Special Court established under Anti Terrorism Act, 1997, Naseerabad Division at Sibi and petitioner was accordingly charged under Section 302 (b)/34 PPC read with Section 7 (a) of Anti Terrorism Act, 1997. The prosecution in order to prove the charge, examined nine witnesses whereas the accused in his statement under Section 342 Cr.P.0 pleaded innocence but did not prefer to make a statement on oath under Section 340 (2) Cr.P.C. or produce the defence evidence. The learned trial Judge, having found the petitioner guilty of the charge, convicted and sentenced him to death under Section 302 (b)/34 PPC read with Section 7(a) of Anti-Terrorism Act, 1997 and on dismissal of appeal preferred by the petitioner against his conviction and sentence by the High Court of Balochistan, he has filed the instant petition Mr. Amanullah Khan, learned ASC, appearing on behalf of petitioner has contended that prosecution has not been able to prove the case against the petitioner beyond reasonable doubt and as such the conviction and sentence of death awarded to him is not sustainable being against the facts and law of the case. The learned counsel submitted that case, against the peptioner was at par to that of Jaind Khan and Mehrulla, his co-accused, who have been acquitted from the charge of murder whereas he was held guilty and was awarded capital punishment despite the fact that sufficient material was available on record to suggest reasonable doubt regarding his involvement in the case. The learned counsel submitted that the trial Court as well as the learned Division Bench in the High Court without independent application of mind to the facts of the case having placed reliance on the testimony of the eye-witnesses who were certainly chance witnesses and were not only closely related to the complainant side, but were also interested, held the petitioner responsible for the murder. The learned counsel forcefully argued that the eye-witnesses were neither independent nor truthful and their deposition being suffering from material contradiction, was not at all reliable without independent corroboration which was not forthcoming and with the exclusion of their statements from consideration, there was no other evidence, direct or circumstantial to connect the petitioner with the commission of offence.
Raja Abdul Ghafoor, learned ASC, appearing on behalf of Advocate General, Balochistan, on the other hand while supporting the impugned judgment, has submitted that in view of the plausible explanation given by the witnesses regarding their presence at the spot coupled with the fact that FIR was lodged without any loss of time, there was not even a remote possibility of deliberation and false implication. The learned counsel submitted that minor contradictions and discrepancies in the evidence, pointed out by the learned counsel for the petitioner being natural, would be of no significance.
3.The perusal of record shows that the report of the incident which took place at 11.30 a.m. was lodged at 11:55 at the police station, Usta Muhammad and soon after the statements of witnesses were recorded at the spot therefore, the assertion of the defence that witnesses were subsequently introduced or they being resident of the village situated at a distance of 14/15 kms from the place of incident were either chance witnesses or were not present at the spot is without any substance.
The occurrence took place in the broad day light outside the premises of district Courts and presence of the witnesses at the public place being not unnatural, they could not be held as chance witnesses: The presence of the witnesses at the scene of occurrence stood established even by the fact that before arrival of SHO at the spot they were already present and could not possibly reach at the spot from a distance of 14/15 miles in such a short time. The defence has neither been able to dislodged the truthfulness of the ocular account nor despite lengthy cross- examination to the witnesses has been able to detect anything favourable to the accused. The substitution is a rare phenomenon and except Ghulam Hussain, who allegedly committed murder of the brother of petitioner, the remaining witnesses have no previous history of any enmity, grudge or malice against the petitioner to suggest that they had a motive for the false implication of the accused. The identity of accused also in the daylight occurrence was free from any doubt. The ocular testimony of quite independent witnesses duly supported by the medical evidence, the recovery of empties from the spot, the post-mortem reports of the two deceased and prompt lodging of FIR without any deliberation and exaggeration as well as the attending circumstances was found truthful and confidence inspiring, therefore, the minor discrepancy and contradiction pointed out in the statement of witnesses being immaterial would be of no significance.
Having heard the learned counsel for the parties and perused the record with their assistance, we have found that the charge against the petitioner stood proved beyond any reasonable doubt through the direct evidence furnished by the quite natural and independent witnesses and have not been able to find out any legal and factual infirmity in the findings of the two Courts regarding guilt of the petitioner calling for, our interference.
5. While taking into consideration the question of sentence, we have not been able to find out any mitigating or extenuating circumstance for lesser sentence and consequently, the impugned judgment would not warrant interference either on merits or on the question of sentence.
In the light of foregoing reasons, we do not find any substance in this petition and the same is accordingly dismissed. Leave is refused.