Muhammad Nawaz Abbasi, J.--This jail petition has been directed against the judgment dated 13.4.2006 passed by a Division Bench of the Lahore High Court, Lahore, whereby the criminal appeal filed by the petitioner alongwith the murder reference sent by Sessions Judge, Jhang, for confirmation of sentence of death awarded to the petitioner on the charge of murder under Section 302(b) PPC, has been disposed of.
2. The petitioner was tried for the charge that on 26.2.1998 at about 1.30 p.m. he armed with pistol fired successive shots at Zulfiqar Ahmed when he was sitting outside the Barber Shop of Mukhtar and caused his death. The motive behind the occurrence was that Ashiq Hussain, father of petitioner used to sell narcotics at Darbar Shah Malang and the deceased having got a case registered against him and his companions, turned them out of the premises of the Darbar. The local police after usual investigation of the case submitted challan against the petitioner to face the trial for the charge of murder before the District & Sessions Judge, Jhang and learned trial Judge at the conclusion of the trial having found the petitioner guilty of the charge, convicted and sentenced him to death, which was upheld by the High Court.
3. The post-mortem examination of the deceased conducted by Dr. Nasir Mehmood (PW-8) revealed six lacerated wounds on different parts of his body of the following descriptions:--
(1) (i) an inverted margin lacerated wound 0.6 cm x 0.5 cm on the upper most outer surface of left arm. Wound of entry.
(ii) A lacerated inverted margin wound 2.2 cm x 1.2 cm on the frontal face of upper left chest, 4 cm below the neck. Exit wound
(2) (i) A lacerated inverted margin wound 0.6 cm x 0.5 cm on the back of right shoulder. Wound of entry
(ii) An inverted margin lacerated wound 2 cm x 1 cm on the front upper surface of right chest, 7 cm above the right nipple. Wound of exit
(3) (i) An inverted margin lacerated wound 0.6 cm x 0.5 cm on the mid back of right chest near backbone. Wound of entry.
(ii) An everted margin lacerated wound 1.4 cm x 1 cm on the front face of mid right chest, 7 cm below the nipple. Wound of exit.
(4) (i) An inverted margin lacerated wound 1 cm x 0.6 cm on the left front of the neck. Wound of entry
(ii) An everted margin lacerated wound 1.5 cm x 1 cm on the right side front of the neck. Wound of entry.
(5) An abrasion 4 cm x 1.5 cm on the front surface of lowest part of arm, left side.
4. Ahmed Sher, ASI (PW-9) having prepared the injury statement and inquest report of the deceased, visited the place of occurrence and secured blood stained earth from the spot with five, crime empties of .30 bore pistol. The petitioner after arrest on 21.3.1998 led to the recovery of unlicensed .30 bore pistol from his residential house and as per report of ballistic expert, the crime empties were found to have been fired from the pistol recovered from the accused.
5. The ocular account was furnished by Alamdar Hussain, complainant (PW-1), the real son of Zulfiqar Ahmed deceased and Talib Hussain (PW-2) not related to either party but had friendly relations with the deceased. The parties are resident of Mohallah Darkhana wala, Chiniot City and fateful occurrence took place at a distance of 200 yds from their residences, therefore, the presence of the witnesses near the shop in question at the relevant time was quite natural. The occurrence took place in the broad-day-light and there was no serious enmity between the parties either to implicate the petitioner in a false case or substitute him for an unknown culprit. In absence of any serious enmity or personal grudge it would not appeal to mind that the complainant and son of the deceased would make a false deposition against the petitioner and involve him in a case of capital punishment. The ocular account furnished by two natural eye- witnesses is fully supported by the medical evidence as well as other evidence on record and also seek corroboration from independent source.
6. Alamdar Hussain complainant undoubtedly is closely related to the deceased but relation itself may not be sufficient to discard his deposition unless it is proved that he has not been able to stand on the test of cross-examination and his evidence was not confidence inspiring. Talib Hussain (PW-2) was entirely an independent person who had no relationship with the complainant party except that he had friendly relations with the deceased and we have not been able to find out any good reason to exclude his statement from consideration.
7. The close scrutiny of the prosecution evidence would suggest that ocular account sought sufficient corroboration from other sources and the defense has not been able to create even a slight doubt qua the truthfulness of the evidence of eye-witnesses. The medical evidence, and recovery of weapon of offence which was found matched with the crime empties recovered from the spot on the day of occurrence have provided an independent corroboration to the ocular account and motive part of the story would be another strong source of corroboration.
8. The learned counsel for the petitioner has contended that the prosecution story is highly doubtful as the circumstances leading to the fateful occurrence would evidently suggest that deceased was killed as a result of sectarian clash but truth has been suppressed by implicating the petitioner in the false case. The learned counsel with reference to the statement of the petitioner under Section 342 Cr.P.0 submitted that petitioner has been substituted for the real culprit at the instance of Syed Rafaqat Shah, president, Tehreek-e-Nafaz-e-Fiqa-e-Jafaria, but he has neither been able to substantiate the plea of false implication or substitution by any evidence direct or circumstantial nor could point out any material contradiction or discrepancy in the prosecution evidence to create any doubt in the correctness of the prosecution version. The mere assertion that the petitioner belonged to Shia sect and the president, Tehreek-e-Nafaz-e-Fiqa-e-Jafaria with a view to save the skin of Maulana Manzoor Ahmed Chinioti who was responsible for the murder of deceased was made scape goat would not be believable to discard the prosecution story and doubt the credibility of eye-witnesses. The occurrence certainly took place in the front of Barber Shop in the Bazar and no other person including the shopkeeper present at the spot, was produced and similarly as pointed out by the learned counsel for the petitioner, the medical evidence would show that deceased also sustained injuries on his back whereas according to the prosecution story he was attacked from the front side and thus the above contradiction in the prosecution evidence may create a doubt qua the truthfulness of the eyewitnesses but detail examination of evidence would not as such lead to an inference that either the witnesses have not seen the occurrence or the prosecution by not producing any other person present at the spot, suppressed the truth. The place of occurrence being situated close to the residential houses of the parties, the presence of the eye-witnesses at the barber shop would not be challengeable and in any case the unconcerned persons present at the seen of occurrence usually hesitate to become witnesses in such cases to avoid enmity, therefore, the non-production of the barber or any other person present at the spot is quite understandable and cannot be considered a circumstance adverse to the prosecution.
10. The learned counsel has not been able to point out any misreading or non-reading of the evidence causing material defect in the conclusion drawn by the High Court regarding the guilt of the petitioner leading to the result of acquittal and consequently, concurrent finding of the two Courts qua guilt of the petitioner would not call for interference of this Court. The learned counsel has also not been able to point out any mitigating circumstance for lessor punishment as the petitioner armed with pistol repeatedly fired at the deceased with the intention to kill on account of the grudge of expulsion of his father from Darbar Malang Shah by the deceased who restrained him from selling narcotics in the area of Darbar.
11.In the light of foregoing reasons, this petition being without any substance is hereby dismissed.
Leave is refused.