1. ' FAZAL ILAHI KHAN, J.---Leave to appeal is prayed for against the judgment dated 22-3-1994 of the Honourable Lahore High Court, Rawalpindi Bench, Rawalpindi passed in Criminal Appeal No,33 of 1990 and in Murder Reference No,102 of 1990.
2. ' Petitioner was tried for the offence under section 302/307, P.P.C. For committing the murder of Najbul Hassan deceased by the learned Additional Sessions Judge, Rawalpindi who found him guilty and on conviction sentenced him under section 302, P.P.C. To death and a fine of Rs,20,000 or in default to undergo further R.I. For 5 years. The fine if realised was ordered to be paid to the legal heirs of the deceased as compensation. Petitioner was also found guilty of offence under section 307, P.P.C. For murderous assault at Qamarul Hassan (P.W.6), the real brother of the deceased, and sentenced to 5 years' R.I. With a fine of Rs,5,000 and in default to undergo further R.I. For one year.
3. Challenging his conviction and sentence the petitioner filed Criminal Appeal No,33 of 1990 while Qamarul Hassan, the injured, filed a Revision Petition No,101 of 1990 for enhancement of sentence and fine under section 307, P.P.C.
4. ' The learned trial Judge also sent the murder reference under section 374, Cr.P.C. The learned High Court on re-appraisal of the entire evidence while maintaining the conviction of appellant under section 302, P.P.C. Altered his sentence from death to life imprisonment. However, his sentence of fine was maintained. Similarly his conviction and sentence under section 307, P.P.C. Was maintained but it was directed that both the sentences shall run concurrently.
5. ' Leave to appeal is prayed for mainly on the ground that the witnesses to the occurrence are interested being closely related inter se and to the deceased; that the prosecution evidence is materially discrepant and full of improbabilities. That there was no independent corroboration to the testimony of the witnesses as required under the law when ocular evidence is .That of interested witnesses. Admittedly these contentions were raised before the trial Court as well as before the learned High Court and have been rejected on proper scrutiny of the evidence.
6. Undoubtedly the eye-witnesses are interested and no independent evidence was available but that by itself will not be a ground for discarding their evidence. If their presence is established at the spot and their testimony is not shattered in the cross-examination conviction can be based on such evidence. However, for safe dispensation of criminal justice Superior Courts have always insisted on some sort of corroboration to such ocular evidence. In this case both. The Courts below have concurrently held that the witnesses were present at the time of occurrence and that they have witnessed the occurrence. It has further been held that their evidence is confidence inspiring.
7. The motive for the offence is also found proved through the statement of a disinterested witness; namely, Adil Khatak who was examined as C.W.1 by the trial Court. Qamarul Hasan (P.W.6) complainant who is the real brother of the deceased has stated that on 28-5-1987 at about 10-15 a.m. Sajid Mehmood accused came at their residence in Sadiqabad and knocked at the door at which Najbul Hasan deceased went outside. Sijid accused threatened his brother that in case he visited the Bazar he would not be spared. He asked from his brother as to what was the matter for extending such threat who informed him that on the preceding night altercation had taken place between him and the accused in the house of Khattak, their common friend. On the same day he (the complainant) alongwith his deceased brother started from their house and were proceeding towards the Magistrate Colony to visit their maternal aunt and when reached near Nishan Rah Chowk situated in Sadiqabad Bazar, Sajid accused approached from behind and shouted as to how he had dared to come out in spite of his having forbidden him. He took out revolver from the fold of his Shalwar and fired at him 3 shots successively. Two shots hit him on the right flank and one shot, which pierced through, hit him at his right wrist. He wanted to catch hold of the accused but he fired at him and he escaped unhurt. Thereafter, accused waiving his revolver disappeared in the Magistrate Colony. Mushtaq, Irafan Safdar and Rafiullah P.Ws. Are stated to have witnessed the occurrence. In his presance the I.O. Secured 2 bullet lead from the spot and made it sealed into a parcel. A pair of ' Chappal was also recovered from the spot and taken into possession. On the disclosure of the accused the revolver Exh.P2 was taken into possession from the house of the accused. His statement is fully supported by Mushtaq Hussain (P.W.7) who has stated that he was present in his shop situated in Nishan-eRah Chowk, Sadiqabad, Rawalpindi when at about 11-15 a.m. Sajid accused came there and challenged Najmul Hassain deceased as to why he has dared to come to the Bazar. That the deceased was accompanied by Qamaural Hassan (P.W.6). That Sajid accused took out revolver and fired 3 successive shots at the deceased. He remained associated with the police and witnessed the recovery of 2 bullets lead from the spot which were taken into possession. He is also witness to the recovery of revolver P2 at the instance of the accused. Both these witnesses have thoroughly been cross-examined but their credibility has not been shattered in any manner. Their testimony is confidence inspiring.
8. ' Motive for the offence has been established in the evidence of Adil Khattak examined as C.W.1 who has stated that Najmul Hassan was his friend. Csimilarly Sajid accused was also his friend. That on 27-5-1983 at about 9 p.m. Najmul Hassan deceased and Sajid accused were present in his house and as on the following day he had to go to his village (Nowshera). As on the next evening it was Eid, therefore, he had to leave his car. Najmul Hassan and Sajid accused both individually wanted to take his car which led to altercation . Between them. Najmul Hassan then took him in the car to a Hying Coach Stand. Adil Khattak is a disinterested person and has been examined as a Court- witness, for the motive.
9. ' Undoubtedly there was no previous enmity between the parties rather it appears from the statement of Adil Khattak that the accused and the deceased both were his friends and that they had cordial relations and on visiting terms. The accused was asked as to why he has been charged for the offence to which he has stated that the deceased was a wanderer and free-lancer and used to tease girls students of the local school. That on the day of occurrence a group of girls who were victims of the above activities of the deceased were from his family and in the process the deceased was fired at by some one not known to him. That the girls belong to his family, therefore, he was involved in the case on suspicion. The Courts below have not accepted the defence version rather it reflects otherwise on the conduct of the accused and his annoyance with the accused.
10. This being a broad daylight occurrence and in the absence of any previous enmity, false involvement is a rare phenomenon specially substitution of the appellant for the real culprit by the eye-witnesses of the occurrence. Keeping in view background of their relations and the motive for the commission of the offence on being a petty altercation, the High Court has already taken a lenient view in exercise of the discretion not confirming the death sentence imposed on the petitioner. We in the facts and circumstances of the case do not feel that it is a fit case for grant of leave to appeal and dismiss the petition.