' MUHAMMAD NAWAZ ABBASI, J.---This appeal by leave of the Court is directed against the judgment dated 26-3-2002 passed by the Lahore High Court, Lahore, in Criminal Appeal No,122-J of 2000 whereby the conviction and sentence of death awarded to Dilawar Hussain appellant herein under section 302(b), P.P.C. By the learned Judge Special Court (Suppression of Terrorist Activities), Gujranwala vide judgment dated 15-3-2000 was maintained and appeal was dismissed.
2. The facts of the case in small compass as contained in the F.I.R. Lodged by Ikhlaq Ahmed complainant (P.W.-2) resident of Daska at 10 PM on 11-7-1995 at Police Station Ghakhar District Gujranwala are that on that day complainant along with his wife and children, had gone to see Nazir Hussain, his father in law, in Mauza Fateh Garh situated in the area of police station Ghakhar District Gujranwala and at about 6-00 p.m. While he and his father in law were proceeding towards their dera, an* unknown person approaching them delivered message of Dilawar Hussain (Appellant) to Nazir Hussain to see him at the dera of Ihsanullah (D.W.1) which was situated at a short distance. The complainant and Nazir Hussain proceeded towards the Dera of Ihsanullah and on arrival at the Dera, Dilawar Hussain already present there armed with rifle demanded from Nazir Hussain return of the land purchased by him from his father and on his refusal extended threat to the deceased with the use of filthy language. Meanwhile Ataullah and Muhammad Ilyas, P.Ws. Also came at the dera of Ihsanullah and the appellant in their presence repeated his demand whereupon Nazir Hussain replied that he had purchased the land for valuable consideration and would not return the same without payment of price. The appellant felt annoyed and while raising Lalkara, fired a shot, which hit Nazir Hussain on his left thigh and left the place of occurrence with indiscriminate firing. Nazir Hussain while being taken to the hospital succumbed to the injuries.
3. Shahid Zafar, S.-I. (P.W.-11) on reaching at the spot inspected the place of occurrence, secured the bloodstained earth, prepared the injury statement and inquest report, sent the dead body of Nazir Hussain to the mortuary for autopsy and also prepared a rough site-plan of the place of occurrence. The post-mortem examination of the dead body of Nazir Hussain conducted by Dr. Hafiz Muhammad Akram Gondal (P.W.6) on 12-7-1995, revealed two ante-mortem fire-arm injuries on his 'person. The injury No,1 was an entry wound which caused extensive damage to femoral vessels of the deceased and being fatal was found sufficient to cause death in the ordinary course of nature. The injury No,2 was exit wound and probable time between the injuries and death as noted by the doctor was between 10 to 15 minutes whereas between the death and post-mortem examination it was about 20-1/2 hours. The appellant after the occurrence remained absconded for a considerable period and ultimately was arrested by Iftikhar Ahmed, Inspector (P.W.12) while he was in police custody in connection with some other case at police station Pattoki city. The investigation was then transferred to Hamid Khan, Inspector (P.W.-8) who after completing the procedural formalities challenged the appellant to face the trial.
4. The appellant pleaded non-guilty to the charge framed against him by the trial Court under section 302 (b) P.P.C. And prosecution produced as many as 12 witnesses in proof thereof, Muhammad Ilyas (P.W.1) hamzulf of deceased and Ikhlaq Ahmed complainant (P.W.2) his son-in- law furnished the ocular account of the incident whereas Ghulam Muhammad a retired S.-I (P.W.7) has witnessed the recovery of weapon of offence (rifle) from the appellant. Dr. Hafiz Akram Gondal (P.W.6) conducted post-mortem examination of the deceased and Mudassir Hussain, Head Constable (P. W.10) was deputed to execute the warrant of arrest of the appellant. Shahid Zafar, S.- I/S.H.O. (P.W.11), Iftikhar Ahmed, Inspector (P.W.-12) and Hamid Ali, Inspector (P.W.-8) have conducted the investigation of the case at different stages. The remaining evidence produced by the prosecution was more or less of formal nature, whereas Allah Lok (C.W.1), Muhammad Afzal (C.W.2) and Rasool Bakhsh (C.W.3) were examined as Court witnesses.
5. The appellant in his statement under section 342, Cr.P.C. Denying the charge pleaded innocence and false implication with the assertion that occurrence was unseen which had taken place in the darkness of the night and the claim of eye-witnesses to have seen the occurrence was highly doubtful. The appellant added that even otherwise the witnesses being closely related to the deceased, were interested and were not independent. He however, without making statement under section 340(2) Cr.P.C. Produced Ihsanullah (D.W.1) real brother of Muhammad Ilyas (P.W.1) an eye-witness and Muhammad Ramzan (D.W.2) a kammi of Allah Lok (C.W.1) in his defence.
6. The learned trial Judge on the conclusion of the trial, having found the appellant guilty of the charge, convicted and sentenced him as aforesaid and appeal filed by the appellant before the High Court was dismissed with conversion of fine imposed by the trial Court into compensation under section 544-A, Cr.P.C. And in default of payment of compensation, he was directed to undergo S.I. For six months. Being aggrieved of the judgment of the High Court, the appellant preferred the present appeal before this Court in which leave was granted vide order dated 26-5- 2003 as under:-- "The petitioner was tried by the learned Judge, Special Court (Suppression of Terrorist Activities)
Gujranwala on the charge of committing murder of his uncle Nazir Hussain. He was convicted under section 302, P.P.C. And sentenced to death and a fine of Rs,50,000 or three years' R.I. In default. The appeal preferred by him was dismissed by a learned Division Bench of the Lahore. High Court, vide judgment dated 26-3-2002, and the sentence of death awarded to him was confirmed.
The sentence of fine was, however, set aside and he was directed to pay the said amount as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or suffer six months'
S.I. In default. Hence this petition for leave to appeal.
(2) It was contended by the learned counsel for the petitioner that the eye-witnesses were trumpeted-up and not natural witnesses, the eye-witnesses were closely related to the deceased but their evidence has been accepted and relied upon without any satisfactory corroboration and the proceedings with regard to abscondence of the petitioner did not meet the requirements of the law on the subject.
(3) Leave to appeal is granted to consider the above contentions and to ascertain whether the principles laid down by this Court for the safe administration of criminal justice were correctly followed while appreciating the evidence on record.
(4) The petition is barred by 12 days. The delay is condoned in view of confinement of the petitioner in jail and serious nature of the sentence."
7. Learned counsel for the appellant has contended that undoubtedly the venue of the occurrence was the dera of Ihsanullah (D.W.1) and as per his statement, the deceased was fired at 10-00 p.m.
In the dark and on hearing the fire report, he immediately reached at his dera from his residence situated at a short distance and found the deceased lying dead. Learned counsel submitted that this witness was most natural witness and being related to both sides was quite independent and reliable as his statement was testified by the contents of postmortem report wherein the time of death was given as 10-40 p.m. Which was subsequently changed as 6-00 p.m. And in view thereof the claim of the witnesses to have seen the occurrence and the time of its taking place at 6-00 p.m. Stands falsified. The learned counsel submitted that both the eye-witnesses were closely related to the deceased and not only were interested but their presence at the scene of occurrence, was doubtful as they being not belonged to village Fateh Garh were not expected to be present there in the normal circumstances and taking us to the statement of the defence witness, argued that eye-witnesses on receiving the information regarding the incident in the next morning through Muhammad Ramzan (D.W.2) came to the house of deceased. The learned counsel forcefully argued that in the light of statement of Ihsanullah and Muhammad Ramzan D.Ws. The prosecution story regarding taking place of the occurrence at 6-00 p.m. In presence of witnesses, stood demolished whereas defence version being supported by the quite natural and independent witness was more plausible and near to truth. Learned counsel argued that in the circumstances leading to the occurrence it would not be safe to place reliance on the testimony of related and interested witnesses and commenting upon the motive for the occurrence set up by the prosecution, contended that appellant had no dispute with the deceased and failure of the prosecution to prove the motive through reliable and independent evidence would seriously reflect upon the credibility and truthfulness of the prosecution evidence. In short learned counsel argued that the evidence produced by the prosecution being shaky and not confidence inspiring was not of unimpeachable character to be given much credence and relied upon without a strong independent corroboration which was not available in the present case to sustain the conviction and sentence awarded to the appellant.
8. The learned counsel in the alternative argued that appellant is closely related to the deceased and had no motive, or enmity against the deceased to kill him and in any case deceased was caused a. Single fire-arm injury on the lower part of the body which would indicate that the assailant had no intention to kill and death was also not the direct result of injury rather the deceased subsequently died in the hospital probably for want of proper care and treatment which would be considered a strong mitigating circumstance for lesser penalty.
9. The learned D.P.G. On the other hand has submitted that occurrence in the present case took place at 6 pm in broad daylight at the dera of Ihsanullah (D. W.1) and the presence of the eye- witnesses together with the deceased at his dera situated at a short distance from the residence of the deceased was quite natural. The mere fact that the witnesses were not residents of the village in which the sad incident happened would not be sufficient to discard their evidence and exclude their presence at the scene of occurrence or hold them chance witnesses. This may be seen that these witnesses being closely related to the deceased were not stranger, therefore, they at any time could pay visit at his house and also had no enmity or malice against the appellant or any personal reason to falsely implicate him in the case of capital punishment or substitute him for the actual culprit.
The examination of the record with assistance of learned counsel for the parties revealed that report of the occurrence was lodged within reasonable time and the eyewitnesses who were named in the F.I.R. Have narrated the occurrence in its natural sequence quite consistent with the facts given therein and their testimony also sought strong corroboration from independent source.
The learned trial Judge as well as the learned Judges in the High Court having made detailed scrutiny of the evidence have correctly found the witnesses truthful and confidence inspiring and learned counsel for the appellant has not been able to point out any disability in their statement to exclude the same from consideration or misreading and non-reading of the evidence or that the conclusion of the guilt of the appellant drawn by the trial Court, and affirmed by the High Court was not supported by the evidence, or was suffering from any legal or factual infirmity, calling for interference of this Court. The medical evidence has provided strong corroboration to the ocular account in respect of the time of occurrence, the number and nature of injuries C and weapon of offence used by the accused. The clerical mistake in respect of time of death recorded in post- mortem report (Exh.PD) was the result of confusion as the time of lodging the report at 10-40 p.m.
Was wrongly mentioned as time of death which was corrected by the doctor under his signature and thus the omission having no material bearing on the merit of the case would be of no significance.
10. The careful examination of the ocular account in the light of medical evidence would show that prosecution has been successful in proving the charge of murder against the appellant beyond doubt. The defence version that occurrence took place at 10-00 p.m. In the dark at the dera of Ihsanullah and was unseen is contradicted by the fact that in the normal circumstances deceased would have no business to go all alone to the dera of Ihsanullah, late in the night whereas his visit at the said dera at 6-00 p.m. On the call of appellant as stated by the eyewitnesses was quite possible. The defence has not been able to point out any lacuna in the evidence suggesting any doubt in the correctness of the prosecution version or any disability in the eye-witness account to create even a slight doubt qua the truthfulness of their testimony. The assertion that the eye- witnesses due to the close relationship with the deceased were not independent and also being not resident of the village of deceased were not expected to be present with him at the dera of Ihsanullah has no substance. The parties as well as the witnesses were closely related inter se and also have good relations except that appellant was annoyed with the deceased for his purchase of land from his father and thus in absence of any enmity or mere relationship is not a valid ground to discard the evidence of a person and similarly a witness non-resident of locality, is not as such unnatural witness, therefore the evidence of such witness cannot be excluded from consideration for mere reason that he was related to the deceased or was not resident of the area in which crime was committed.
11. In the peculiar facts and circumstances of the present case, the learned counsel has not been able to convince us that either it was an unseen occurrence which took place in the dark night at the dera of Ihsanullah or the witnesses were not present at the spot and appellant. Was substituted for an unknown culprit. The eye-witnesses were quite natural and independent and they had no reason' to nominate the appellant as murderer of his uncle and substitute him as accused. There is sufficient evidence on the record in proof of the fact that the appellant due to the purchase of land by the deceased from his father was annoyed with him and being desperate to get the land back from the deceased had a strong motive to commit the crime.
12. The detail scrutiny of the evidence with the help of learned counsel for the parties has brought us to the conclusion that there was no material discrepancy or contradiction in the evidence suggesting even a slight doubt qua the truthfulness of the prosecution evidence. The ocular account was amply supported by independent corroborative evidence and in the circumstances leading to the occurrence the learned counsel has not been able to satisfy us that either the occurrence was not preplanned or it was a sudden episode and appellant had no intention to kill or the injury sustained by the deceased was not direct result of death. There is nothing on record to show that the infection in the body of deceased if any was caused due to the negligence of the medical staff and injury as such was not dangerous to life. In the opinion of the doctor who conducted post-mortem of the deceased, the injury was fatal which was sufficient to cause death in the ordinary course of nature and thus the mere fact that there was chance of survival would not reduce the liability of the appellant and similarly death in hospital after some time also cannot be as such considered a mitigating circumstance for lesser punishment.
13. In the light of foregoing reasons, we do not find any substance in this appeal either on merits or for reduction of sentence and the same is accordingly dismissed.