HAMID ALI MIRZA, J.---This criminal petition for leave to appeal is directed against the judgment dated 13-6-2001 in Criminal Appeal No,193 of 1996 passed by the Lahore High Court, Lahore, whereby the said appeal was dismissed and murder reference was answered in the affirmative maintaining the conviction and sentence of death awarded to the petitioner/accused.
2. Brief facts of the case are that Umer Farooq got registered F.I.R. No,16/93 on 9-3-1993 at 6-00 p.m.
At Police Station Khichiwala, District Bahawalnagar, stating therein that on the fateful day at "Dupehrwela" his brother Muhammad Arshad, when he was coming back and reached the shop of Mistri Nazir Ahmad, had a quarrel with Yousaf because of old enmity, who went away threatening Arshad that he would be taught a lesson. In the evening he along with his brother Arshad was coming to home from their land and when they reached near the house in front of Madina Cloth House, Zakaullah armed with 7 mm rifle, Tufail armed with 12 bore gun and Muhammad Yousaf, emerged out of the Baithak of Tufail whereupon Zakaullah and Yousaf raised Lakaras that they would not be spared and all three of them surrounded them. On their hue and cry Muhammad Ibrahim and Nasim Ahmad resident of the village also appeared and within their sight Zakaullah fired with his 7 mm rifle but the fire missed. Thereafter Muhammad Tufail fired with his 12 bore gun which hit Arshad on his left flank and at that very moment Muhammad Amjad also arrived to lend a helping hand to his co-accused. First informant (Umer Farooq) tried to save his brother Arshad but Amjad gave fist blows. Muhammad Arshad while soaked in blood fell to the ground and as a result of fire-arm injury died at the spot.
3. After usual investigation the petitioner along with acquitted co- accused was challaned. The learned Trial Court framed the charge against the petitioner and three other co-accused under section 302/34, P.P.0 to which petitioner and co-accused pleaded not guilty consequently, the prosecution examined as many as ten witnesses. Petitioner was examined under section 342, Cr.P.C. Wherein he denied the charged offence and stated that the gun was produced by him and that there was no empty in its chamber and he further stated that there was old enmity and a criminal case was lodged by Muhammad Ashraf (given up P.W.) for the murder of his father against the petitioner/convict and co-accused Zakaullah, Muhammad Yousaf and Muhammad Ibrahim but during investigation petitioner/convict and other co-accused were found innocent and discharged. As he had spent lot of money in the case therefore he made demand of share of expenses from Muhammad Ibrahim P.W. To which he was annoyed, who in collusion with Muhammad Ashraf got him and co-accused involved in the instant case for the murder of deceased Muhammad Arshad which incident had taken place during night time and was committed by some unknown persons but Muhammad Ibrahim and Muhammad Ashraf due to suspicion falsely implicated him and co-accused and further P.W. Muhammad Ibrahim had contested local bodies election in 1990 wherein he and co-accused had opposed.
4. The trial Court after recording the evidence and hearing the learned counsel for the parties acquitted giving benefit of doubt to Zakaullah, Muhammad Yousaf and Muhammad Amjad but so far petitioner Muhammad Tufail he was convicted under section 302(b), P.P.0 and sentenced to death with order to pay Rs,20,000 as compensation to the legal heirs of the deceased and in default to undergo six months' R.I. The petitioner preferred Criminal Appeal No,93 of 1996 before the Lahore High Court which was heard by learned Division Bench and was disposed of by maintaining the conviction and sentence and affirming the murder reference sent by the trial Court.
5. We have heard Mian Aftab Farrukh, learned Senior Advocate Supreme Court for the petitioner and perused the record.
6. The only contention of the learned counsel for the petitioner is that the eye-witnesses P.Ws. Umer Farooq and Nasim Ahmad being interested in the deceased, and inimical to the petitioner, their presence was also not proved beyond doubt therefore, their testimony in absence of corroborated piece of evidence could not be believed as such conviction cannot be based on it and further that medical evidence was contrary to the ocular testimony of P.Ws. He has placed reliance upon Mir Muhammad and others v. The State (1972 PCr.L1 1108).
7. We do not find merit and substance in the contention of the learned counsel for the petitioner.
8. The learned trial Court after scanning the ocular testimony of Umer Farooq P.W.5, Nasim Ahmad P.W.6 and Muhammad Ibrahim P.W.7 came to the conclusion that their testimony was consistent and was without any material contradiction and discrepancy. Mere fact that they were closely related with the deceased would not itself be a ground to discard their testimony which otherwise was trustworthy and confidence-inspiring considering that parties knew each other and it was rare to substitute innocent in place of real killer. Further that P.Ws have given plausible explanation of their presence at the place of occurrence. The trial Court also further held that there was no noticeable conflict between the ocular testimony and the medical evidence. So far the motive it was also held to have been established.
9. The learned High Court affirmed the conviction and sentence passed by the learned trial Court on the ground that eye-witnesses were present at the spot and have seen the occurrence and their testimony was free from taint and their evidence was confidence-inspiring and further non- production of blood-stained clothes of P.W.5 Umer Farooq would not add premium to the petitioner's case as no such suggestion in the cross-examination was made to the Investigation Officer.
10. Contention of the learned counsel for the petitioner that presence of P.Ws. Umer Farooq and Nasim Ahmad at the place of incident has not been proved, has no merit considering that the both eye-witnesses have fully accounted for their presence at the place of occurrence at the relevant time by narrating minute details of the incident, assigning overt act on the part of the petitioner/accused. It may also be pointed out that examination-in-chief of P.W.5 Umer Farooq and P.W. 6 Nasim Ahmad was completed on 13-12-1995 while petitioner's counsel was given five days' time for cross-examination which was conducted and concluded on 19-12-1995 but in spite of lengthy cross-examination their testimony could neither be shaken nor discredited on the material points who have stated the truth and there was no reason for them to falsely implicate the petitioner in place of real culprit. Both P.Ws. Have deposed that they saw the occurrence and identified the accused who was already known to them and the said petitioner/accused fired at the deceased from his 12 bore gun which hit at his flank which fact is also corroborated by medical evidence. There are neither material discrepancies nor contradictions between the ocular and medical testimony.
11. Learned counsel for the petitioner/accused next contended that in view of the area encircled by punctured wounds of fire-arm as mentioned in the post-mortem report, the distance from which gun was fired at the deceased should have been more than what was stated by the P.Ws.
Therefore there was contradiction between the ocular testimony and the medical evidence.
12. We also do not find substance and merit in the said contention. Post-mortem report under head "Injuries" reads as follows:-- "(1) There were multiple contused circular, punctured wounds (approximately 70 in number) encircling an area of about 14 c.m in vertical direction and 18 c.m on in horizontal direction situated on anterulateral surface of left side of lower chest and abdomen. The circle of wound of 7 c.m. From left nipple and 9 c.m from umblicous. Each wound was 1/2 x 1/2 c.m. In diameter. Edges inverted. No burning blackening present. Correspondent holes in Qameez and Patka present."
P.W.4 Dr. Muhammad Saeed Qamar who conducted post-mortem examination upon, the deceased in the cross-examination could not tell as to from what distance fire was made and stated that Ballistic Expert could only state about distance. Investigation Officer P.W.8 Abdul Latif deposed that as per his investigation fire was made by Muhammad Tufail, petitioner/accused from a close range of two Karams as deposed by the witnesses. It is true that dispersion of pellets is to increase with the range but at the same time dispersal of pellets would also depend very largely on the individual gun and the charge used in cartridge. High pressure shot charge spread more rapidly and low pressure helps to keep it together. There is no such suggestion from the side of the defence in respect of length of barrel of gun and the contents of charge contained in the cartridge to support the contention so raised before this Court. The fact that there was no burning and blackening present around the wounds itself suggest that shot was fired from long distance than nearer distance but the said fact would also depend upon the kind and quantity of gun powder used in the cartridges and the length of barrel and its diameter at muzzle end.
13. Besides above we have also affirmed the finding of the learned Division Bench of the High Court and the trial Court with regard to ocular testimony of both witnesses as the same being reliable trustworthy and confidence-inspiring. It is now settled law that when the Court is convinced that the witness has seen the incident and the said testimony was worthy of credence, the conflicting opinion of doctor/expert would neither negate nor outweigh nor nullify the evidentiary value of eye-witness. Reference may be made to (i) Ghulam Ullah and another v. The State and another (1996 SCM R 1887), (ii) Muhammad Hanif v. The State (PLD 1993 SC 895), (iii) Abdur Rehman v. The State (1998 SCM R 1778), (iv) Yaqoob Shah v. The State (PLD 1976 SC 53). It may also be observed that the P. Ws. Being either illiterate or semi-illiterate would not able to indicate the exact distance with scientific exactitude between the deceased and the place from where the shot was fired. It may also be observed that in the instant case there is positive testimony of eye-witnesses who are dependable and natural witnesses therefore their testimony cannot be cast aside merely on the basis of theoretical opinion being relied upon by the learned counsel for the petitioner/accused.
Facts of the case Mir Muhammad and others v. The State (1972 PCr.LJ 1108) cited by the learned counsel for the petitioner/accused are quite different and distinguishable to the facts of the instant case, besides considering law laid down by this Court in the above-cited cases.
14. In view of confidence-inspiring ocular testimony of P.Ws. Corroborated by medical evidence we find no substance in the second contention of the learned counsel as well.
15. The learned Division Bench of the High Court and trial Court have given legal, valid and cogent reasons in arriving at finding with regard -to guilt of the petitioner/accused on the basis of the prosecution evidence which stood proved beyond reasonable doubt. No extenuating or mitigating circumstance exists for reduction in sentence. In the circumstances this petition has no merit consequently leave to appeal is declined and the petition is dismissed.