' ABDUL HAMEED DOGAR, J.---This petition for leave to appeal is directed against the judgment dated 28-11-2001 passed by a learned Division Bench of the Lahore High Court, Lahore, whereby Criminal Appeal No,126 of 1999 filed by the petitioner was dismissed and his conviction and sentence of death was maintained.
2. In this case alongwith the petitioner, two accused, namely, Muhammad Aslam and Mansoor Ahmed were sent up to face trial under sections 302/324/34, P.P.C. For committing the murder of Muhammad Nadeem and causing injuries to P.W. Muhammad Sagheer.
3. On the conclusion of the trial, the petitioner Nasir Mehmood was convicted and sentenced to death under section 302(b)/34, P.P.C. And was also ordered to pay Rs,50,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of the deceased or in default whereof to suffer further S.I. For six months.
' Accused Muhammad Aslam was convicted and sentenced to imprisonment for life with compensation of Rs,10,000 under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased or in default whereof to undergo further S.-I. For six months.
' Accused Mansoor Ahmed, however, was acquitted of the charge under sections 302/34, P.P.C.
4. All the three accused were acquitted of the charge under section 324/34, P.P.C. For the murderous assault on P.W. Sagheer Ahmad.
5. The appeal of the petitioners before the Lahore High Court was dismissed and murder reference was answered in the affirmative. The appeal of accused Muhammad Aslam was, however, allowed and he was acquitted whereas the appeal against acquittal of Mansoor Ahmad filed by complainant Zulfiqar Ali was dismissed.
6. The case of the prosecution as unfolded in the F.I.R. Was that on 3-8-1994, a day prior to the lodging of the F.I.R., the deceased Muhammad Nadeem and his friends injured P.W. Muhammad Sagheer had gone to the petitioner and acquitted accused Mansoor Ahmad and demanded the recovery of the loan to which they refused and harsh words were exchanged between them. The petitioner and the said Mansoor Ahmad hurled abuses in consequences to which the deceased and the injured slapped them, but the matter was pacified due to the intervention of the notables.
While leaving, the petitioner and Mansoor Ahmad threatened to avenge the same.
7. It was on 4-8-1994 at about 6 p.m. The deceased Muhanunad Nadeem and injured P.W.
Muhammad Sagheer were sitting in the 'Hammam' of one Sharif in Street No,9, Mohallah Muhammadabad when the petitioner armed with .222 bore rifle, acquitted accused Mansoor Ahmad with .30 bore pistol and Muhammad Aslam with carbine came at the door of Hammam on a motor bike and exhorted Lalkara to avenge the slapping. The petitioner fired a shot from his rifle which hit injured Muhammad Sagheer on his right elbow cutting the blood vein. Thereafter, he made five consecutive shots on the deceased Nadeem hitting on his left eye, left jaw, left side of chest and left wrist, after which the acquitted accused Mansoor Ahmad also fired at him from a .30 bore pistol on the front of his chest. The acquitted accused Muhammad Aslam continued firing with his carbine in the air while threatening not to come near. The incident was witnessed by P.W.11 Javed Iqbal and given up P.W. Tahir Zaman resident of the locality who were sitting alongwith the complainant.
8. After the registration of the case, the complainant Zulfiqar Ali (P.W.10) made supplementary statement wherein he nominated the fourth accused Imran Ejaz to be the, culprit of the incident who absconded and was declared a proclaimed offender.
9. We have heard Mr. Asif Mahmood Chughtai, learned Advocate . Supreme Court for the petitioner in detail and have gone through the recorded proceedings in minute particulars.
10. Mr. Asif Mahmood Chughtai, learned Advocate Supreme Court mainly contended that the trial Court as well as the learned Lahore High Court have failed to appreciate that the eye-witnesses were chance witnesses and should not have been relied upon without any independent corroboration. According to him, the prosecution had failed to prove the motive against the petitioner as such he deserved leniency in the sentence. It was also contended that there was conflict between the ocular and the medical evidence and that injured P.W. Muhammad Sagheer was not produced, therefore, the case of the prosecution had become doubtful. He further submitted that irrespective of the above, the witnesses have made material improvements in the evidence which had destroyed the case of the prosecution. The acquittal of Mansoor Ahmad and Muhammad Aslam by the trial Court and the learned Lahore High Court on the same evidence further strengthens the case of the petitioner that he was falsely implicated and deserves acquittal on the rule of consistency.
11. In the instant case, the occurrence had taken place at 6-00 p.m. On 4-8-1994 and the deceased and the injured were shifted in the Emergency Ward of DHQ Hospital, Faisalabad, on the same day at about 8-00 p.m., the matter was reported to the police and the F.I.R. Was lodged at 8-45 p.m.
Thus there was absolutely no delay in lodging of F.I.R. The incident took place at 6-00 p.m. In the month of August round about the time of sunsent as such it cannot be said to be the dark hours of the night, therefore, the question of identity of the accused cannot be doubted. According to the case of the prosecution and the evidence adduced at the trial, the petitioner, firstly . Fired a shot with his rifle on the person of the injured Muhammad Sagheer and thereafter fired five successive shots from his rifle on the person of the deceased which hit him and caused his instant death. This factum is fully corroborated by the medical evidence whereby the deceased Muhammad Nadeem received six fire-arm injuries on different parts of his body. According to P.W.1 Dr. Muhammad Anwar Sulahri he had recovered bullet from inside the dead body which according to him was not pellet in any case. It fully corroborates the version of the prosecution that firing was made by the petitioner from his rifle having bullet inside its magazine. The main reason which weighed for the acquittal of the accused Muhammad Aslam was that the part attributed to him was not found corroborated by the medical evidence whereby not even a single pellet injury was noticed on the person of the deceased. Thus the case of the petitioner is not at par with him, therefore, he cannot claim such benefit. The complainant Zulfiqar Ali and P.Ws. Javed lqbal and Tahir Zaman were the natural witnesses of the occurrence as it was not by chance that they appeared at the time of the incident but were sitting in a 'Hammam' and witnessed the entire incident from there. Moreover, the petitioner has failed to establish any animosity with them, as such they being the truthful witnesses there seems to be no reason to disbelieve them. Irrespective of the above, motive is also fully established from the evidence. It was not all of a sudden that the incident occurred but the same was a premeditated as the petitioner and acquitted accused Mansoor Ahmad had an altercation with the deceased a day; prior to the incident and hurled abuses to them and left the place while threatening to avenge the result of slapping them. The ocular evidence further gets support from the evidence of the recovery of rifle from the petitioner and its matching with the empty recovered from the place of occurrence as per report of the export.
12. For what has been discussed above, we are of the considered opinion that the prosecution has successfully established the case against the petitioner. The conviction and the sentence recorded against him by the learned trial Court as well as the learned Lahore High Court do not call for any interference which are accordingly maintained. The petition being devoid of force is hereby dismissed and leave to appeal is refused.