' GULZAR AHMED, J.---Brief facts of the matter, as disclosed by PW-Shahadat Ali, complainant, in FIR No,80 lodged by him on 07.03.1999 at 9:30 a.m., under sections 302, 324 and 109, P.P.C. At Police Station Manga Mandi, Lahore, are that he is a zamindar and is in the business of selling milk. On 07.03.19 at 6:45 a.m., he as usual went to the house of his real brother Haji Liaquat Ali where Muhammad Ashiq of village Rangeel Pur was also present. While the complainant was picking up a cane of milk, his brother Haji Liaquat Ali came out of the residential room and while he was in the courtyard, suddenly Ali Abbas @ Bholi armed with Kalashnikov, Muhammad Mansha (appellant) armed with .44 bore rifle present at the rooftop of the house of Muhammad Yasin, Mannan armed with .222 bore rifle present on the rooftop of the house of Shah Muhammad and Muhammad Ali Chhurimar armed with .12 bore gun present on the rooftop of the house of Shahadat son of Chiragh, started firing with their respective weapons at Haji Liaquat Ali. The first fire by Muhammad Mansha, appellant, hit Haji Liaquat Ali on the left side of his chest upon which he fell down. It was followed by a burst of Kalashnikov by Ali Abbas Bholi, which hit Haji Liaquat Ali on his left buttotk. On raising hue and cry by the complainant and Muhammad Ashiq-PW, the accused Mannan and Muhammad Ali @ Chhurimar fired at them with their respective weapons but the bullets hit neem tree. All the four accused resorted to further firing, which hit the walls of premises. The motive for the occurrence was stated to be the enmity between Haji Liaquat Ali and Muhammad Ali @ Chhurimar and that the incident was alleged to be instigated by Muhamntad and Mst. Shakeela, wife of Muhammad Ali Chhurimar. Haji Liaquat Ali was taken to the hospital in an injured condition.
Initially the FIR was registered under sections 324, 109 and 34, P.P.C. Later on Haji Liaquat Ali died on the same day i,e, 07.03.1999 in the hospital and the offence under section 302, P.P.C. Was added.
2. The appellant along with other co-accused were sent up for trial. After trial, the learned trial Court vide its judgment dated 31.07.2002 found the appellant Muhammad Mansha guilty of committing murder of Haji Liaquat Ali and convicted him under section 302(b), P.P.C. And sentenced him to death as Ta'zir. He was also directed to pay Rs,50,000/- as compensation to the legal heirs of deceased in terms of section 544-A, Cr.P.C. And in default to undergo SI for six months. Two of the accused namely Muhammad Ali @ Chhurimar and Muhammad son of Mand Bux were declared proclaimed offenders and their perpetual non-bailable warrants of arrest were issued. The other two co-accused namely Mst. Shakeela and Muhammad Ali @ Mannan were acquitted by giving the benefit of doubt. It is noted in the judgment of the trial Court that accused Ali Abbas @ Bholi was killed in police encounter on 26.06.1999. Against the judgment of trial Court, appellant Muhammad Mansha has filed Criminal Appeal No,1197 of 2002 through his Advocate. He has also filed Criminal Appeal No,2-J of 2003 from Jail. Murder Reference No,683 of 2002 was also filed in respect of death sentence awarded to Muhammad Mansha, appellant. By the impugned judgment, both the appeals filed by the appellant were dismissed and the Murder Reference was also answered in affirmative.
3. We have heard the submissions of the learned ASC for the appellant so also the learned Additional Prosecutor General and the learned ASC for the complainant and have also gone through the record. The learned ASC for the appellant has contended that it was an un-witnessed occurrence, which took place in the dark night at about 2:30 a.m.; that the PWs could not have identified the accused persons as there was considerable distance between the eye-witnesses and the accused persons; that the prosecution witnesses being related to each other were inimical towards the accused party, therefore, their testimony could not have been believed by the Courts below, particularly, the testimony of PW Shahadat Ali, who is an accused in a case registered by the accused party. In support of his submissions, the learned ASC has relied upon the cases of Ata Muhammad and another v. The State (1995 SCM R 599) and Sarfraz alias Sappi and 2 others v.
State (PLD 2000 SC 1505). The learned ASC has also made an alternate submission that the appellant has remained as a condemned prisoner for 17 years, therefore, by treating it to be a mitigating circumstance, the sentence of death may be converted into imprisonment for life. On the other hand, learned ASC appearing for the complainant and also the learned Additional Prosecutor General have supported the impugned judgment.
5. The occurrence has taken place in the house of Haji Liaquat Ali (deceased) at about 6:45 a.m. In the month of March. It is alleged that the appellant while standing on the rooftop of the house of one Muhammad Yasin fired with his .44 bore rifle on the deceased which hit him on his chest and the deceased fell to the ground, thereafter the co-accused Ali Abbas @ Bholi, who was also standing on the rooftop of the house of Muhammad Yasin fired a burst from his Kalashnikov hitting the deceased on his left buttock. The deceased was taken to Jinnah Hospital, Lahore, in an injured condition where he succumbed to the injuries. The case of the prosecution is supported by both the eye-witnesses of the occurrence i:e. PW-1 Muhammad Ashiq and PW-5 Shahadat Ali, PW-1 Muhammad Ashiq is the resident of same village and a childhood friend of deceased. PW-5 Shahadat Ali is the brother of deceased. He resides adjacent to the house of deceased Haji Liaquat Ali. He and Haji Liaquat Ali were engaged in the business of selling milk. The presence of both the eye-witnesses at the place of occurrence could not be doubted for that they have given reasons for their presence, which in our view are quite natural. Thus, it is not correct that the occurrence was an un-witnessed one. In the FIR, the time of occurrence is given to be that of 6:45 a.m. In the morning. This time of occurrence is also mentioned in the testimonies of PW-1 Muhammad Ashiq and PW-5 Shahadat Ali. PW-1 Muhammad Ashiq was suggested that the occurrence has taken place at 5:00 a.m. In darkness, which he denied. No suggestion of darkness was made to PW-5 Shahadat Ali. Learned counsel for the appellant has referred the evidence of PW-2 Latif, who stated that he has received information of the incident at 4:00 a.m. And he arrived at his house at 8:00 a.m., travelling distance of four miles on Tanga. It seems that this time of 4:00 a.m. Was erroneously written and is a typographical mistake. This witness in his cross-examination stated that he was not at his house when the occurrence took place as he has left for Tube-well early in the morning for taking milk. He has reached the village at 8:00 a.m. And at best the time for travelling of four miles on a Tanga will take about one hour, which will come to 7:00 a.m. When the information is received by this PW. Be that as it may, in view of documentary evidence in the shape of FIR and the deposition of two eyewitnesses that the incident has taken place at 6:45 a.m., we accept the time of occurrence to be that of 6:45 a.m. And consider it to be a day time. The further submission of the learned counsel for the appellant that the PWs could not have identified the accused as they were at considerable distance. The occurrence has taken place in the house of Haji Liaquat Ali, deceased. The house of Muhammad Yasin, on the rooftop of which the appellant was said to be standing, was adjacent to the house of deceased. The site-plan also shows that there is no obstacle in viewing the appellant by the PWs. The appellant was in clear view of the PWs and being known to the PWs, no possibility exists that he could not have been identified. No suggestion was made to the PWs about their inability to identify the appellant nor the Draftsman was suggested that the PWs could not have identified the appellant from the distance where they were standing.
The further submission of the learned ASC that the prosecution witnesses being related to each other were inimical to the accused party, therefore, their evidence is not reliable. PW-1 Muhammad Ashiq, in categorical terms, has stated that he was not related in any manner with the deceased Haji Liaquat Ali. PW-5 Shahadat Ali has also stated that Muhammad Ashiq is not related to him.
PW-1 Muhammad Ashiq denied his inimical terms with the appellant. Thus, the testimony of PW-1 Muhammad Ashiq is that of an independent person, who has no personal grudge or reason to falsely implicate the appellant in the crime of murder. His evidence is not tainted by any reason whatsoever and appears to be quite unimpeachable and stood the test of cross-examination.
Though PW-5 Shahadat Ali is the real brother of Haji Liaquat Ali deceased and seems to be on inimical terms with the accused party but this witness was subjected to lengthy cross-examination and his veracity could not be shattered. Further the testimony of both the eye witnesses find corroboration from recovery of .44 bore rifle from the appellant and its matching with the crime empties recovered from the place of occurrence as per report of the Forensic Science Laboratory, Medical evidence further corroborates the evidence of the eye-witnesses inasmuch as the post- mortem report shows that Haji Liaquat Ali deceased has received firearm injuries on the chest and buttock and the cause of death is given 'damage to vital organs of thorax and abdomen and severe haemorrhage and shock'. In view of these corroborative materials on record, we find it safe to rely upon the evidence of PW-5 Shahadat Ali also. Both the Courts below have found both the eye-witnesses trustworthy and reliable.
6. The two cases cited before us by the learned ASC for the appellant are of no help to the appellant. In the case of Ata Muhammad (supra) this Court has dealt with the question about reliability of interested witness on account of their close relationship with the deceased, their enmity with the accused persons and criminal litigation. On facts, it was noted that the complainant and the eye-witnesses have implicated as many as 10 persons and during investigation the complainant substituted another person in place of one named by him in the FIR.
The Court held that ocular evidence in such a case should not be accepted unless substantially corroborated. Similar principle was also considered in the case of Sarfraz alias Sappi (supra). In the case in hand PW-Muhammad Ashiq is an independent eye-witness while PW-Shahadat Ali is related and inimical to the accused party but his evidence is found to be consistent with that of PW-Muhammad Ashiq. The evidence of both these PWs is also corroborated by independent pieces of evidence i,e, recovery and the medical evidence. We, therefore, find evidence of both these eye-witnesses to be reliable and trustworthy.
7. Now adverting to the alternate submission of the learned ASC for the appellant that appellant having remained a condemned prisoner for a period of 17 years, this may be treated as mitigating circumstance and his death sentence may be converted into life imprisonment. We may note that this Court has held in successive cases that long incarceration as a condemned prisoner alone is not a ground for seeking mitigation for reducing the sentence from death to life imprisonment.
Reference in this regard is made to the case of Dilawar Hussain v. The State (2013 SCM R 1582).
8. The case in hand is the one in which the appellant was named in the promptly lodged FIR with a specific role, which role is established on record. The occurrence was of a day time and the appellant was known to the PWs, who have identified him to be the person who has committed cold-blooded murder of Haji Liaquat Ali, deceased, and there seems to be no reason as to why the appellant should not undergo the maximum punishment provided for the offence. The impugned judgment does not suffer any illegality, perversity or impropriety, which is maintained. The appeal is, therefore, dismissed.