SYED DEEDAR HUSSAIN SHAH, J.- This Appeal by leave of the Court is directed against the judgment of the Lahore High Court, Lahore, dated 25.9.1997, passed in Criminal Appeal No. 590 of 1994 and Murder Reference No. 252 of 1994, whereby the appeal tiled by the appellant and five others was partially accepted qua the. Co-accused of the appellant and dismissed insofar as the appellant was concerned. The Murder Reference was accepted and the death sentence awarded to the appellant was confirmed.
2. Briefly stated the prosecution story as set up in the FIR No. 252, dated 24.8.1991, is that on the day of occurrence Muhammad Yar complainant alongwith Gulzar deceased proceeded from his Behak (cattle shed) to his village. When they reached in the village, Muhammad Yar Complainant stayed at the shop of Ahmad Ali for purchasing cigarettes, while Gulzar deceased continued walking ahead. When at about an hour, prior to the Maghrib Azan time, he reached near the "Ahata" of Muqeem in the bazar, the complainant at the time also reached the Masjid Chowk. In the meantime, Wallayat appellant, his brother Mazhar, Yaqub Alias Yousaf, Amanat Ali, Mumtaz alias Tazoo duly armed with 12 bore guns emerged out of the "Ahata" of Muqeem raising lalkara that Gulzar be murdered and simultaneously the accused launched attack on Gulzar. Wallayat appellant fired a shot with his 12-bore gun hitting the back side of the chest of the deceased, who fell down on the ground, thereafter all the accused started firing. The occurrence was witnessed by Muhammad Aslam (PW not examined). Thereafter, the assailants ran towards their houses. When the complainant and Muhammad Aslam PWs went closer to the deceased they found him dead due to firing.
3. The motive, as alleged in the FIR, was that about to years prior to the occurrence, Mazhar etc. murdered Ismail, uncle 'of Gulzar deceased. To avenge the murder the relatives of Gulzar deceased had attacked Wallayat appellant by firing at him, but he escaped. For that grudge all the accused including the appellant in consultation with each other attacked and murdered Gulzar at the instigation of Riaz, Shera, Ghaus and Nasir.
4. After usual investigation, the police arrested the appellant and his co-accused. Ali the accused in their statements under Section 342, Cr.P.C, denied the prosecution allegations and pleaded their false implication in the case due to enmity.
5. The learned Trial Court vide judgment dated 23.10.1994 acquitted Nasir, Riaz, Shera and Ghaus co-accused, as no witness regarding the conspiracy and abetment was produced at the trial.
However, the Trial Court convicted the appellant and co-accused under sections 302/148/149, PPC.
Appellant Wallayat was sentenced to death under section 302/149, PPC, while the remaining accused were sentenced to imprisonment for life. All the accused were also sentenced to 2. Years'
R.I. Under section 148, PPC extending the benefit of Section 382-B Cr.P.C.
6. Feeling aggrieved, the appellant and co-accused, namely, Mumtaz alias Tazoo, Amanat Ali, Mazhar and Yaqub alias Yousaf jointly filed an appeal before the Lahore High Court, Lahore. Vide impugned judgment dated 25.9.1997 the appeal in respect of co-accused was accepted and their convictions and sentences were set aside, but the appeal to the extent of Wallayat appellant was dismissed confirming his death sentence.
7. Vide order dated 13.4.1999, leave to appeal was granted to the appellant to re-appraise the evidence on the record as to whether the conviction recorded against and the sentence of death awarded to the appellant, under section 302, PPC, was in accordance with the principles enunciated by this Court for safe administration of criminal justice in criminal cases.
8. Raja Muhammad Anwar, Sr.ASC, learned counsel for the appellant, inter alia, contended that learned Division Bench of the High Court has not appreciated the evidence on record in its proper perspective, which resulted to miscarriage of justice; that-the sentence awarded by the Courts below is harsh and not in accordance with law1 and circumstances of the case; and that the case of the prosecution is doubtful, inasmuch as eight co-accused have already been acquitted by the Courts below on the same piece of evidence.
9. Mr. Dil Muhammad Tarar, learned counsel for the State has supported the impugned judgment and stated that the Courts below have properly considered the evidence.
10. We have considered the arguments of the learned counsel for the parties and also minutely examined the record. The role of effective firing was attributed to the appellant. The FIR was promptly lodged. The evidence of eye-witnesses has rightly been believed by the Trial Court as well as the High Court as well as the High Court with regard to the role played by Wallayat appellant.
The evidence of the PWs is natural, trustworthy and nothing has been brought out in cross- examination to disbelieve their veracity. It is a daylight incident and there is no possibility of mistake in identification of the appellant. In the impugned judgment the learned High Court has observed as under:-- "As regards Wilayat, appellant, we are of the opinion that the Trial Court has correctly recorded his conviction and sentence because the motive occurrence of an attack on him by the complainant party including the deceased, which is proved from the ocular account, shows that he bore a grudge and wanted to 'kill Gular before the deceased had an opportunity to kill him and the deceased died due to a single fire-arm injury which is attributed to him. The plea of alibi raised by him is false as no evidence is available on the record to the same effect and the plea raised from the accused side as suggested in the cross- examination that it was in fact the complainant party which had attacked the accused side and the deceased got killed due to the fire-arm injury caused by one. Of the persons belonging to the complainant party is also without any basis."
11. The Courts are bound to sift the chaff from grain and keeping in view this principle, the Courts below rightly acquitted the co-accused because sufficient material was not available against them, but natural reliable and trustworthy evidence was furnished by the prosecution against the appellant, which had rightly been believed by the Courts below. The appellant has committed brutal murder with firearm. The normal penalty under section 302, PPC is death, which has been properly awarded by the Courts below. In this respect, reference may be made to Moazam Shah v.
Mohsan Shah (PLD 2001 S.C. 458, at p. 465) wherein this Court held as under:- "Besides, such cases must be seen with reference to the interest of society and be condemned as such. To curb crime is the need of hour. One of the object of criminal justice is to award exemplary punishment to offenders in order to deter them from committing crimes and in this way also to serve a stern warning to those members of society, who have behavioral leaning towards criminality.
18. Adverting to the facts of this case it is noted that the respondent had killed the deceased under a preconceived strategy, which stunned the deceased and prevented him from taking any step to save his life. Ex-facie, it was premeditated and cold-blooded murder. The deceased was only 24 years old.
19. In consequence, the judgment of High Court, to the extent of altering the sentence of death to imprisonment for life, is set Aside and that of Trial Court, awarding death penalty to respondent Mohsan Shah, is restored."
12. For the facts and circumstances mentioned herein-above we see no substance in this appeal, which is hereby dismissed.