' M. JAVED BUTTAR, J.--- The petitioners Zaheer Ahmad alias Kala and Muhammad Shahid Ali alias Mehra, through this petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, are seeking leave to appeal against the judgment, dated 3-4-2003, passed by a learned Division Bench of Lahore High Court, Lahore whereby the petitioners' Criminal Appeal No,256 of 1998, was dismissed and Murder Reference No,139 of 1998 was answered in affirmative.
2. The petitioners were tried by the Additional Sessions Judge, Faisalabad, in crime case F.I.R.
No,589, dated 4-12-1995 (Exh.P.D./1), registered with Police Station Nishat Abad, District Faisalabad, for the offences under section 302/34, P.P.C. Against the petitioners, on the complaint (Exh.P.D.) of the complainant Abdul Wahid (P.W.5), for the murder of Nasir Ahmad (the deceased), his first cousin. The trial Court vide its judgment, dated 7-3-1998 convicted the petitioners under section 302/34, P.P.C. And sentenced each of them to death with a further direction to pay Rs,1,00,000 each to the legal heirs of the deceased by way of compensation as envisaged by the relevant provision of section 544-A, Cr.P.C. Or in default thereof to undergo simple imprisonment for six months each.
The benefit of section 382-B, Cr.P.C. Was, however, extended to them.
3. The prosecution story as revealed in the F.I.R. Is that on 4-12-1995, at about 9-30 a.m., when the complainant, the deceased, Muhammad Rafiq and Barkatullah (P.W.6) were proceeding towards the bus-stop Behar Colony from their houses and when they reached opposite the house of Rana Muhammad Yaqub, they saw the petitioner Muhammad Shahid sitting in his shop armed with a .12 bore double barrel gun and at that time the petitioner Muhammad Zaheer armed with pistol .30 bore emerged from a cluster of Kikar trees in the graveyard and exhorted a Lalkara that the deceased would not go alive and fired a shot through his pistol, hitting at the back of left ear of the deceased and the second shot was fired by petitioner Muhammad Shahid by his gun after he had come out of his shop, hitting just below the front side of the chest of the deceased, who fell down and the accused/petitioners, brandishing their weapons, left the spot. It was also alleged that the deceased died there and then. As per motive it was alleged that in the year 1987 Ijaz Ahmad, the husband of sister of the petitioner Muhammad Zaheer was murdered and in the said case the deceased and others were challaned and the deceased had been released from jail 8/9 months earlier and for this grudge the petitioner Muhammad Zaheer with the association of the petitioner Muhammad Shahid, had killed the deceased.
4. The matter was reported by the complainant to Mehmood Ahmad, S.-I. (P.W.9) at 10-30 a.m., who reduced the same into writing and dispatched it to the police station through a constable for formal registration of F.I.R., which was drawn by Zafar Iqbal, M.H.C. (P.W.8) on the same day at 10-55 a.m.
5. The petitioners, having been found guilty in the investigation, were challaned. They pleaded not guilty to the charge framed by the trial Court and claimed trial.
6. P.W.1 Dr. Muhammad Hussain conducted autopsy on the dead body of the deceased and found two fire-arm injuries on his person. According to him, he died due to excessive haemorrhage and shock resulting from the said injuries, which were sufficient to cause death in the ordinary course of nature. Seven foreign metallic pieces and one wade of cartridge were recovered from the dead body. It is an admitted position before us that these two injuries were caused by two different types of weapons. We are also satisfied that it was so.
7. P.W.5 Abdul Wahid (the complainant) and P.W.6 Barkatullah, who is brother-in-law of the deceased, furnished ocular account they fully supported the prosecution case.
8. The petitioners in their statements under section 342, Cr.P.C., denied the allegations, pleaded innocence and alleged their involvement in the case due to enmity. They opted not to 'make statements on oath under section 340(2), Cr.P.C. The petitioner Muhammad Shahid did not produce any evidence in defence. The petitioner Zaheer Ahmad produced certified copies of F . I.
Rs, (Exhs .D.E., D.F., D.G., D.H., D.J. And D.K.).
9. We have heard the learned counsel for the parties and have also seen the relevant record.
10. It is submitted by the learned counsel for the petitioners that the petitioners are not related to each other, motive alleged by the complainant relates only to Zaheer Ahmad whereas the petitioner Shahid Ali has been involved only because the occurrence took place in front of his shop, the eye-witnesses are closely related to the deceased, they were chance witnesses, they had an animosity against the petitioner Zaheer Ahmad, no empties were recovered from the spot although two P.Ws. Were left with the dead body for its protection when the complainant had gone to lodge the report and the police had come to the spot soon, meaning thereby that the place of occurrence remained secure in the meanwhile and this shows that occurrence had taken place at some other time, the medical evidence does not support the ocular account qua the time of occurrence because the stomach contained semi-digested food and large intestine contained faecal matter, that the deceased and the complainant could not have been going together for getting some sale-deeds registered because the bladder was full of urine and normally the people ease themselves before going out on an errand, both the injuries were caused from close range, which were in the straight line and as per prosecution story, they were caused one after the other, which is impossible because after suffering first injury, the deceased could not have remained in the standing position, that some overwriting was made in the F.I.R. (Exh.P.D./1) and inquest report (Exh.P.H.), the word "right" had been made "left", in relation to the injury No,1 behind the ear, which makes the ocular account extremely doubtful. The contentions have been opposed and it has been highlighted by the learned counsel for the complainant that no suggestion was ever put to the witnesses that the petitioner Shahid Ali had no connection with the petitioner' Zaheer Ahmad.
11. It was broad-daylight occurrence which took place on a road near shops and residential houses.
It could not have gone unnoticed. The presence of semi-digested food in the stomach, faecal matter in the large intestines and urine in the bladder, cannot necessarily lead to a conclusion that it was a night time occurrence or an occurrence which had taken place much earlier than 9-30 a.m. It all depends on the time of intake of food and liquid by deceased, regarding which no evidence is available on record. The time of the occurrence cannot be doubted merely on the basis of presumptions. The eye-witnesses remained firm in their detailed searching cross-examination.
They cannot be doubted merely because of their relationship with the deceased. The trial Court as well as the High Court believed them and we have no reason to disbelieve them. Both the said judgments are detailed and do not suffer from any misreading or non-reading of evidence or any legal infirmity. All aspects have been covered in detail by the learned Judges of the High Court. The conclusion drawn by them that the change of the word "right" into "left", by Mehmood Ahmad, S.-I.
(P.W.9), in the inquest report, did not reflect upon the honesty either on the part of the complainant or the Investigating Officer, is reasonful, which are given in para.19 of the impugned judgment. Both the petitioners were known to the P. Ws. The occurrence took place at 9-30 a.m. There is no question of mistaken identity or false involvement. The learned Judges of the High Court have dealt with this aspect in depth and have held as follows:- "Both the accused were fully known to the complainant and witnesses. Contents of scaled site plans (Exhs.P.B. And Exh.P.B./1) clearly reveal that occurrence took place quite close to the village Abadi of Chak No,121/JB Gokhwal on the metalled road, about 30 feet away from house and shop of Muhammad Shahid Ali alias. Mehra appellant. Other houses of Ijaz son of Muhammad Ali, Rana Muhammad Yaqoob and Muhammad Ali adjoin his house. Acacia arabica trees were also available at a distance of five/six feet, a very short distance from place of murder. The metalled road leads to population of Chak No,121/JB. Occurrence of the alleged incident could not have remained unnoticed. If accused were not the real culprits, then people living close to the place of occurrence would have appeared before the investigating agency voluntarily or associated by the investigators. Throughout, none came forward to say a word about false involvement of the appellants. It is a daylight occurrence. Presence of eye-witnesses is not at all doubtful. They are the probable witnesses of occurrence. Barkatullah (P.W.6) did not have the slightest reason to furnish false voucher against the appellants. The accused side appears to have maximum interest in killing Nasir Ahmad deceased. The background of victim provides valuable insight into this murder.
Victim was a convenient and effective means of revenge. This murder can be termed as revenge murder or elimination murder. Elimination murder is committed mostly to eliminate person who is considered a formidable hindrance to the objectives of the accused and their relatives or party men."
12. The occurrence was promptly reported to the police. Specific roles played by both the petitioners were narrated in detail. The use of different types of fire-arms by both the petitioners were given. Had the eye-witnesses or the complainant been not present on the spot. The detail of two types of weapons could not have been mentioned, which fact stood established only later on when the post-mortem was conducted.
13. There is no doubt with regard to the criminal liabilities of both the petitioners. The prosecution, in our opinion, had successfully proved its case beyond any doubt. We also do not find any mitigating circumstance in favour of either of the petitioners for the awarding of lesser punishment. The petitioners' appeal was correctly dismissed by the High Court.
This petition, therefore, has no merit. It is accordingly dismissed, and the leave is refused.