1. ' MUHAMMAD NAWAZ ABBASI, J.---This judgment will dispose of above petition through jail, for special leave to appeal filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, seeking leave against the judgment dated 20-7-2001 passed by a Division Bench of Lahore High Court, Bahawalpur Bench, in Criminal Appeal No, 104 and Murder Reference No 26 of 1999 whereby the conviction and sentence of death awarded to the petitioner for the charge under section 302(b), P.P.C. By the learned Additional Sessions Judge. Bahawalpur, vide judgment dated 26-64999 was upheld.
2. ' Fazal Ahmed alias Fazla petitioner alongwith three others namely. Mukhtar Hussain, Karim Hussain and Fida alias Fidda was tried by the learned Additional Sessions Judge, Bahawalpur, for the charge under section 302/34, P.P.C. For committing the murder of one Rasool Bakhsh in the area of police station Musafar Khana, District Bahawalpur. The learned trial Judge having found the petitioner guilty of the charge, convicted and sentenced him to death under section 302(b), P.P.C.
3. The petitioner was also directed to pay fine of Rs,25,000 and in default of payment of fine to undergo R.I. For two years. The fine if recovered was ordered to be paid to the legal heirs of the deceased as compensation under section 544-A, Cr.P.C. The co-accused of the petitioner were acquitted by giving them the benefit of doubt. The petitioner challenged his conviction and sentence through a criminal appeal before the Bahawalpur Bench of the Lahore High Court and the learned trial Judge sent a murder reference under section 374, Cr.P.C. For confirmation of death sentence. The learned Division Bench of the High Court while maintaining the conviction and sentence of death awarded to the petitioner dismissed his appeal and answered the murder reference in affirmative. Leave appeal has been sought through this jail petition on the following grounds.
4. ' Firstly that the motive set up by the prosecution remained unproved and with the exclusion of motive, the prosecution story would be falsified. Secondly, the medical evidence was in conflict to the ocular account which would make the presence of eye-witnesses at the spot doubtful. Thirdly, due to the darkness at the time of occurrence the identification of the assaillants was not possible.
5. ' The relevant facts of the case as summarized the judgment of Lahore. High Court and contained in the F.I.R. (Exh.PA) are that Rasool Bakhsh elder brother of Bashir Ahmed complainant, was running a bull-cart and about 15/16 days before the occurrence ,which took place on 28-12-1995 at the occasion of circumcision ceremony of son of one Muhammad Aslam, Fazal Ahmed petitioner alongwith his co-accused named above for celebration of the function, made firing in the air. On restraining them by Rasool Bakhsh deceased, brother of the complainant, and others from firing, the accused exchanged altercation with the deceased and while extending threats to him, left the spot. On 28-12-1995 the complainant alongwith Rasool Bakhsh deceased proceeded from Adda Musaffar Khana with their bull-cart loaded with bags of Khall for Khairpur and when at about 5 p.m.
6. They reached near the house of Saadullah Shah, Fazal Ahmed petitioner and his co-accused Fida Hussain, Mukhtar Hussein and Khan Bakhsh, were found standing at the scene of occurrence. Khan Bakhsh having approached Rasool Bakhsh took him to Fazal Ahmed and the moment Rasool Bakhsh reached near Fazal Ahmed accused, he being armed with a carbine while challenging the deceased to teach a lesson to him for disgracing the accused at circumcision ceremony of the son of Muhammad Aslam, fired which hit on the left side of the body of deceased. On the intervention of the complainant, Mukhtar Hussain and Fida Hussain, who were armed with carbine, started firing in the air and Fazal Ahmed accused fired a second shot which hit on the back on left side of the deceased. In response to the hue and cry raised by the complainant Allah Bakhsh and Maqsood when reached at the spot, the accused escaped from the scene of occurrence. Rasool Bakhsh deceased succumbed to the injuries at the spot. The report of the occurrence was lodged by Bashir Ahmed vide F.I.R. (Exh.PA) at 6-15 p.m. On the same day at Police Station Musafar Khana, District Bahawalpur. Azzizullah, S.-I./SHO, after registration of the case, proceeded to the place of occurrence and having prepared injury statement inquest report of the deceased took into possession blood-stained earth and two empty cartridges from the spot. The Investigating Officer despatched the dead body of Rasool Bakhsh to the mortuary for post-mortem examination and recorded the statements of the witnesses. Fazal Ahmed accused upon arrest on 15-1-1996. The recovered carbine which was handed over to the Moharrar of police station. The parcels of crime empties recovered by Investigating Officer from the place of occurrence during the spot inspection, were sent to the Forensic Science Laboratory subsequently, the weapon of offence recovered from the accused were also sent for fire-arms expert opinion, according to which crime empties recovered from the place of occurrence were found matched with the carbine recovered from the accused and the blood-stained earth sent for chemical examination was found stained with human blood.
7. ' Dr. Muhammad Zahid, Medical Officer P.W.5 having conducted post-mortem on the dead body of Rasool Bakhsh on 29-12-1998, traced following injuries:-- ' "Entrance Wounds:
(1) An entrance wound 1 c.m. x 1.5 c.m. Oval shaped was present on antero-lateral aspect of left side of upper chest. On interior wall of left exilla, margins of wound were lacerated and inverted.
8. Blackening and tatooing around margins were present. It was passing through and through, all layers of skin and second intercostal space into the chest cavity. Corresponding holes/tears were present on clothes.
(2) An entrance wound 1 c.m. x 1.5 c.m. Oval shaped was present on left side of lower back in left lumber region. Margins of wound were irregular and were inverted. Blackening and tatooing of margins was present. Corresponding holes in clothes were present. Blood was oozing from both wounds. Entrance wound was passing anteriorly on abdominal cavity.
9. ' Exit Wounds;
(3) An exit wound 1.5 c.m. x 1.8 c.m. Was present at lower angle of left scapula on left side of back of chest. Margins were everted and lacerated. Corresponding holes in clothes were present. Bloody discharge was oozing, wound was passing through intercostal space. This wound was mixed with another oval wound forming same exit and entrance wounds.
(4) An exit wound 1.5 c.m. x 1.8 c.m. Present on anterolateral aspect of left side of lower abdomen. It was just on left anterior-superior ilic supine. Marines were everted and lacerated. Corresponding holes on clothes were present. Bone was fractured at this level.
10. ' Wounds forming same entrance and exit.
(5) An oval shaped wound 5 c.m. x 1.5 c.m. Was present on lower margins of left scapula forming same entrance an exit. It was black coloured. Holes in the clothes were present. This wound was mixing with injury No,3, the exit wound.
(6) An oval shaped wound 1.5 c.m. x 2 c.m. Blackish burnt was present on left medical and upper aspect of left upper arm forming same entrance and exit wounds. Holes in clothes were present.
11. This injury was corresponding to the injury No, 1 entrance wound showing that both were due to the same fire.
(7) Bleeding from nose was present. It was due to crushing of lungs and heart injury."
12. ' In the opinion of the Doctor, injuries on the person of deceased were anti-mortem which were caused with fire-arm and were sufficient to cause death in the ordinary course of nature. The Investigating Officer during the investigation, having found Fida Hussain alias Fidda innocent placed him in column No,2 of the report under section 173, Cr.P.C. And challaned the petitioner and his co-accused namely, Mukhtar Hussain and Karim Bakhsh since acquitted to face the trial.
13. ' We have gone through the evidence on the record with the assistance of learned counsel. Bashir Ahmed P.W.2 (complainant) stated that he and his deceased brother were coming with bull-cart loaded with bags of Khall and when reached near the house of Saadullah Shah, the deceased was fired at by Fazal Ahmed petitioner with carbine whereas his co-accused Mukhtar Hussain and Fida Hussain made firing in the air. The witness has further narrated that motive behind the occurrence was grudge for restraining the accused from making firing in the air in the function in the house of Muhammad Aslam. Allah Bakhsh P.W.3 at the time of occurrence was present in his land situated at a short distance who claimed that in his view the fateful incident took place in which Fazal Ahmed fired two shots at the deceased. The cumulative effect of the evidence of the two eye- witnesses goes to establish the manner of taking place the occurrence and the sustaining of fire- arm injuries by the deceased at the hands of petitioner. . The prosecution in addition to the eye- witnesses also produced Muhammad Afzal, A.S.-I./Moharrar of the police station who kept the sealed parcels of bloodstained earth, crime empties and weapons of offence in Malkhana and later sent the same to the office of Chemical Examiner and Forensic Science Laboratory, Lahore for expert opinion. Manzoor P.W.4, who escorted the dead body of Rasool Bakhsh to mortuary for post- mortem, handed over the last worn clothes of the deceased to the Investigating Officer. Atta Muhammad P.W.6 witnessed the recovery of carbines from Fazal Ahmed and Mukhtar Hussain.
14. Khalid Safdar P.W.7, Halqa Patwari, prepared the site plan of the place of occurrence on the pointation of eye-witnesses and directions of police. Azizullah Investigating Officer of the case and Muhammad Sadiq Constable, who took the sealed parcel of pistol to the Forensic Science Laboratory, were examined as P.Ws. 8 and 9 respectively. Fazal Ahmed petitioner while denying the incriminating evidence put to him in his statement under section 342, Cr.P.C. Pleaded innocence in reply to a question as under:-- ' "I am innocent and prosecution roped me in the case because of suspicion and grudge. P.Ws. Of this case are related to the deceased so they have deposed against me falsely."
15. ' The petitioner and his co-accused without making statement on oath under section 340(2), Cr.P.C.
16. Produced Muhammad Aslam, Muhammad Shahzad and Pir Mehr Shah in their defence.
17. Muhammad Aslam has stated that neither he invited the deceased nor the petitioner and his co- accused in the function. Muhammad Shahzad D.W.2 and Pir Mehr Shah D.W.3 having claimed participation in the function, stated that deceased and the accused were not seen by them in the function.
18. ' We having gone through the evidence, deem it proper to deal with the arguments advanced by the learned counsel in support of the contentions stated above one by one as under.
19. ' The first contention was that Muhammad Aslam host of the circumcision ceremony of his son, categorically stated that neither he invited the accused and the deceased in the function nor they were present in the ceremony and that statement of Muhammad Aslam was supported by two independent defence witnesses namely, Muhammad Shahzed and Pir Mehr Shah and thus, the prosecution case relating to the presence of deceased and the accused in the house of Muhammad Aslam was rebutted through direct evidence with the result that motive part of story would fall to ground. We having considered the arguments of learned counsel find that same have no substance. The prosecutiop has led the evidence to prove that about a fortnight prior to the occurrence at the occasion of circumcision ceremony of son of Muhammad Aslam, an altercation had taken place between the deceased and the accused. The defence examined three witnesses including Muhammad Aslam, host in rebuttal. The perusal of statements of defence witnesses would show that they having claimed their participation in circumcision ceremony of son of Muhammad Aslam have not supported the statement of Muhammad Aslam and further have not claimed to appear before the Investigating Officer in support of the defence version relating to the motive part of the prosecution story during the investigation. There is no convincing evidence available on the record to show that there was some other motive behind the fateful occurrence and if the altercation in question had not taken place between the deceased and accused as pleaded then what was the reason of setting up such a motive by the complainant was not brought on record by the defence. The defence has also not suggested any other enmity of the accused with the complainant party which prompted the witnesses to make a false deposition against the accused. The defence witnesses except Muhammad Aslam, have not as such stated that the deceased and accused were not invited in the function rather their evidence was that the deceased and accused were not seen by them in the function. We having scrutinized the defence evidence find that it was afterthought which was not trustworthy and confidence inspiring to be given any importance.
20. ' The second contention was that as per statement of the Investigating Officer, the crime empty recovered from place of occurrence did not match with the pistol recovered from Fazal Ahmed and the same was found matched with the carbine recovered from Mukhtar Hussain, therefore, the evidence of recovery has no evidentiary value qua the guilt of petitioner. The learned counsel further argued that keeping in view oval shape of entry wounds, the same appear to have been caused with bullet and not with pellets whereas as per prosecution story, petitioner fired at the deceased with carbine in which cartridge is used. In the post-mortem examination of the deceased, the doctor traced on the dead body, four fire-arm entry wounds. Injury No,1 was of the size of 1 c.m. x 1.5 c.m. Oval in shape on the left side of chest and injury No,2 of the same size and shape, was on the left side of back region of chest. Injury No 6 was also of oval shape which was a corresponding wound and injury No, 5 was mixing with injury No, 3 an exit wound. The doctor has declared that injuries Nos. 1 and 2 were entrance wounds whereas injuries Nos.3 and 4 were the corresponding wounds of the said injuries and there was no blackening around the injuries to suggest that the same were caused from close distance. The eye-witnesses have consistently stated that Fazal Ahnied being armed with carbine twice fired at the deceased from a reasonable distance. The size of entry wounds would show that same were caused with pellets and not bullets and mere description of injuries of oval shape and recovery of pistol from the petitioner by the Investigation Officer would not be a convincing ground to disbelieve the ocular account of natural witness. The recovery of pistol from the petitioner during the investigation would not change the fate of prosecution case as the same appears to have been done by the Investigating Officer to oblige the petitioner at the cost of damaging the prosecution case. Undoubtedly the empties recovered from the spot matched with the carbine recovered from Mukhtar Hussain and not with the pistol recovered from the petitioner, therefore, the recovery of pistol from petitioner would be of no consequence and particularly in view of the evidence of eye-witnesses that petitioner was armed with carbine, the attempt made by the. Investigating Officer to create doubt in favour of petitioner, would be undone. This artificial contradiction was created through dishonest investigation which would not be fatal to the prosecution. The conclusion is that medical evidence is not found in conflict to the ocular account.
21. ' The third contention raised by the learned counsel was that as per prosecution, the occurrence took place near the house of Saadullah Shah but no one was produced as witness from his house which would seriously reflect upon the correctness of the eye-witnesses account for want of independent corroboration as the eye-witnesses being closely related were interested. The occurrence took place at 5 p.m. And the case was registered on the statement made by Bashir Ahmed P.W.2 at 6-15 p.m. At the police station situated at a distance of about three kilometres from the place of occurrence. The witness has stated that he reached at the police station before sunset and it is important to note that defence despite lengthy cross-examination has not been able to bring any material on record to suggest that at the time of occurrence it being dark the identification of the assailant was not possible or that complainant being inimical to the petitioner substituted the accused with the unknown culprit. Allah Bakhsh the other eye-witness, while present in his land situated near the place of occurrence, witnessed the occurrence. He was natural and entirely independent witness who made statement in full corroboration to the statement of Bashir Ahmed complainant. The defence has not been able to bring any material on record to suggest that either this witness was interested or inimical to the petitioner or his evidence was not trustworthy. There is also nothing on record to suggest that occurrence took place in the dark after sunset. We having scrutinized the evidence of the eyewitnesses, find that they have absolutely no reason to falsely implicate the petitioner in the murder case and further defence has not seriously challenged their presence at the place of occurrence. The defence, except putting vague suggestion to the witnesses that the petitioner was not the real culprit, has not been able to establish that they due to some motive or malice made false deposition against the petitioner. We having analyzed the evidence, have come to the conclusion that the trial Court and also the High Court have taken much pain to deal with all material aspects of the case. The evidence of eyewitnesses has not only satisfied that test of reliability but also appeared to be convincing and trustworthy which has received ample and adequate support from the motive and medical evidence, therefore, no exception can be taken to the view of the evidence formed by the trial Court and High Court.
22. ' For the foregoing discussion, we do not find it a fit case for grant of leave and this petition must fail. We therefore, while upholding the conviction and sentence awarded to the petitioner by the trial Court and maintained by the High Court, dismiss this petition. Leave to appeal is refused.