Muhammad Sair Ali, J.--Leave to appeal is sought through this jail petition by Muhammad Faryad, petitioner against the judgment dated 28.11.2008 passed by the Lahore High Court, Multan Bench dismissing petitioner's Criminal Appeal No, 878 of 2002 thereby confirming the death sentence etc. awarded by the trial Court and answering the murder reference in affirmative.
2. Briefly stated the facts of the case are that on report of the complainant Muhammad Ramzan (PW.6) FIR No, 174 of 1999 under Section 302 PPC, Police Station Jehanian, District Khanewal was registered alleging the murder of his brother Muhammad Islam by the petitioner through a pistol shot. The motive was stated to be reprimand by Muhammad Islam deceased on petitioner's staring at the girls through the gate of the Girls College.
3. After completion of investigation, the case was sent up for trial. The petitioner was charge sheeted, but he denied the charges and opted for the trial. Prosecution examined 10 witnesses.
Muhammad Ramzan complainant appeared as PW.6 and Iftikhar Ahmed as PW.5 to support the prosecution story, the motive and the recoveries. Recovery of pistol i,e, (P.3) was effected through Farman Ali (PW.7) and Nazir Ahmed S hah, Investigation Officer (P.W.9). Dr. Mumtaz Ahmed Khan (PW.10) appeared to depose on post-mortem examination of Muhammad Islam deceased detailing and describing nature of injuries on the person of the deceased. Report of the Chemical Examiner (Ex.PK) and that of Serologist (Ex.P.L) and of Forensic Science Laboratory (Ex.PN) were tendered in the evidence by the prosecution. In his statement under Section 342 Cr.P.C, petitioner denied the prosecution story and claimed that he had been falsely implicated in lieu of the sons of the deceased who were the actual killers of their father on a land dispute. However, he neither appeared as his own witness nor produced any defence witnesses.
4. The learned Sessions Judge, Khanewal through judgment dated 24.09.2002 convicted the petitioner under Section 302(b) PPC and sentenced him to death and to pay compensation of Rs,50,000/- to the legal heirs of the deceased under Section 544-A Cr.P.0 and in default thereof to undergo 6 months R.I.
5. The petitioner filed an appeal against trial Court's judgment before the Lahore High Court, Multan Bench. The High Court dismissing the appeal maintained petitioner's conviction and sentence thereby also answering the reference in affirmative. Hence the present jail petition.
6. To support this petition Mr. Aftab Ahmed Khan, ASC contended that medical evidence and the ocular evidence contradict each other as to the distance of fire of the pistol shot. Iftikhar Ahmed, PW.5 and Muhammad Ramzan, PW.6 stated that the fire was made at a distance of about 3-5 feet while Dr. Mumtaz Ahmed Khan, in his opinion has stated the fire to have been made from a distance of 20 feet. He further contended that perusal of the site-plan shows that the deceased was sitting in the Baithak of Basit Ali with his back to the door from where the convict allegedly entered and fired but the prosecution story, the deposition of eye-witnesses and the medical evidence describe the fire to have hit the deceased on the frontal part of the body causing the fatal injury on the front of the neck.
7. The learned Dy. Prosecutor General, Punjab has supported the impugned judgment.
8. Having heard the learned counsel for the parties and perused the record minutely, we do not find any substance in the submissions of the learned counsel for the petitioner. The story in the FIR was proved by the consistent, credible and natural depositions of Muhammad Ramzan, PW.6 i,e, the complainant and Iftikhar Ahmed, PW.5. They both stated the petitioner to have entered the room from the door and firing the shot directly at the deceased hit him on the frontal of the neck. This ocular evidence was endorsed by the statement of Dr. Mumtaz Ahmed Khan PW.10 who conducted the post-mortem examination and described the injuries as under:-- "1. A lacerated wound 1 cm x 1cm penetrating deep with inverted margins (entry wound) on left side of front of upper neck, 5 cm from laryngeal box.
2. A lacerated wound 1.5 cm x 1 cm going deep everted margins (exit wound) on back of right shoulder 13 cm below top of right shoulder,"
Injury No, 1 and 2 were the entry and exit wounds, caused by fire-arm and were anti-mortem in nature, sufficient to cause death in the ordinary course. Dr. Mumtaz Ahmed, PW.10 in answer to the 'questions in the cross-examination stated that The Injury No, 1 paneterated from left side in the neck. The assailant was on the left side of the deceased at the time of firing. The direction of the injury was downwards towards right shoulder hence exit was on the back of the right shoulder." In answer to the question on distance, Dr. Mumtaz Ahmed Khan, PW.10 stated that "I cannot give the exact distance between the deceased and the assailant at the time of firing. There is possibility that the assailant may be at a distance of 20 feet at the time of firing."
This statement is adequate to meet the objections of the learned counsel for the petitioner as to the distance and direction of the fire.
9. We also examined the site-plan and the place of the two Cots and the door from where the petitioner entered and fired on the left front side of the deceased as per the PWs. The site-plan does not support the plea of the learned counsel for the petitioner that the door was at the back of the accused and fire, if shot from the door, could only hit the accused in the back. The door as shown in the site-plan was on the left side of the Cot of accused and fire could only hit him as stated by PWs. The medical evidence, the statement of the PWs and the site-plan read. together proved the story of the prosecution beyond doubt. On the distance, Dr. Mumtaz Ahmed Khan, PW.10, initially denied his ability to give the exact distance but on further cross-examination as to the possible distance, he mentioned that the distance may be 20 feet. This uncertain expression on the probable distance cannot belie the consistent and credible version of the PWs on the distance and the manner of commission of crime.
10. It was a day light occurrence. Petitioner was known to the PWs. In the FIR he was nominated as the only accused person who fired the single but fatal pistol shot. Recovery of the pistol was also proved to have been made from the accused. The prosecution witnesses had no motive to falsely implicate the accused in absence of any previous enmity. Reprimanding the petitioner by the deceased for staring at the college girls was the immediate motive for the murder and the same was also duly proved by mutually corroborative statements of Iftikhar Ahmed, PW.5 and Muhammad Ramzan, PW.6. No material contradictions or serious discrepancies in the evidence of the prosecution witnesses existed. No ground to interfere in the concurrent findings of the Courts below is therefor available.
11. In view thereof, this petition is dismissed. Leave is declined.