1. HAMID ALI MIRZA, J.--This criminal petition for leave io appeal is directed against the judgment of conviction dated 4-6-2001 in Criminal Appeal No,191 of 1995 and Murder Reference No,86 of 1995 passed by learned Division Bench of the Lahore High Court, whereby judgment of conviction dated 29-3-1995 passed by learned Additional Sessions Judge, Kasur for the murder of Rafaqat Ali and murderous assault upon Safdar Ali P.W. Was upheld, and petitioner/accused Wahid son of Liaqat Ali was convicted under section 302, P.P.C. And sentenced to death and co-accused Zahid was convicted under section 337-A(i), P.P.C. And sentenced to two years' R.I. And to pay Rs,2,000 as Daman, Riasat Ali, Ishtiaq, Taj Muhammad, Liaqat Ali, Wahid and Zahid accused persons were also convicted under section 148, P.P.C. And sentenced to two years' R.I. With fine of Rs,two thousand each when sentence awarded to Zahid co-accused was to run concurrently and co-accused Mukhtar, Shafique and Afzal were acquitted of the charged offence. Brief facts of the case are that the petitioner along with co-accused namely, (i) Riasat Ali, (ii)
2. Mukhtar Ahmad, (iii) Muhammad Shafique, (iv) Muhammad Afzal, (v) Ishtiaq, (vi) Taj Muhammad,
(vii) Liaqat Ali and (viii) Zahid were charged Ind tried under sections 302/148/149, P.P.C. By the learned Additional Sessions Judge, Kasur. The petitioner and co-accused pleaded not guilty to the charged offences consequently prosecution examined as many as fourteen P. Ws. In support of its case. The petitioner and co-accused were examined under section 342, Cr.P.C. Wherein they denied the commission of charged offences and stated that they were falsely implicated in the case and that P.Ws. Deposed against them were inimical and interested when co-accused Riasat Ali stated that he and some of his friends not mentioned in the F.I.R. Had retaliated to the firing upon the complainant party in the exercise of private right of defence of person and property as he had earlier objected to the boarding of passengers on the top of wagon as it was affecting the privacy of his house. Learned trial Court Judge after recording the evidence. And hearing the learned counsel, convicted and sentenced the petitioner and co-accused and also acquitted some of the co-accused as mentioned above. The petitioner and co-accused filed Criminal Appeal No,191 of 1995 and learned trial Court also sent Murder Reference No,86 of 1995 against the petitioner to the Lahore High Court when criminal appeal of the petitioner and convict-accused was dismissed and murder reference against the petitioner was confirmed. We have heard learned counsel for the petitioner and perused the record minutely. The contention of the learned counsel for the petitioner is that the learned Division Bench and the learned trial Court have not considered the evidence of injured P.W.7 Safdar Ali whose evidence was confidence-inspiring and (ii) ocular testimony was inconsistent to that of medical evidence.
3. He has placed reliance upon (i) Zarid Khan v. Gul Sher 1972 SCM R 597, (ii) Muhammad Boota v. The State 1984 SCMR 56 and (iii) The State v. Abdul Ghaffar 1996 SCM R 678.
4. We do not find substance and merit in the contentions of the learned counsel for the petitioner. So far the petitioner/accused is concerned, testimony of P.W.3 Rana Muhammad Azim, P.W.4 Zahid Hussain and P.W.5 Muhammad Sadiq is consistent to the effect the petitioner was holding .12 bore gun and he fired which hit Rafaqat Ali deceased's throat and right side of his shoulder which fact was consistent to the part assigned to the petitioner in the F.I.R. Which was lodged without delay.
5. Their testimony has been found to be confidence-inspiring by the learned Trial Court and the learned Division Bench of the High Court, considering that the same could not be discredited in their cross-examination by the defence counsel to which finding no exception could be taken. It may also be observed that co-accused Riasat Ali admitted the occurrence and motive but claimed exercise of right of private defence of person and property which he could not substantiate when motive and commission of crime on the part of petitioner have been testified by P.Ws. Rana Muhammad Azim, Zahid Hussain and Muhammad Sadiq, therefore, same stood proved by the prosecution. In the light of above ocular testimony of the P.Ws. And the motive, the evidence of P.W.7 Safdar Ali if judged and analysed one could easily arrive at the right conclusion that he was not stating the truth and was won over by the accused party, therefore, the testimony to the said extent which was untrue was rightly discarded by the learned Division Bench of the High Court and learned trial Court though there could not be cavil with that decisions of this Court (supra) relied upon that the evidence of such hostile witness could be taken into consideration so as to find out if evidence of said witness was worthy of belief in the light of other evidence and (ii) that a witness who was unfavourable to the prosecution was not necessarily hostile but a witness who was not telling the truth to the Court would be considered to be a hostile witness. It would not be out of place to mention here that it has been noticed that in large number of cases eye-witness of the occurrence resile from their statements or at least make concessions in favour of accused consequently said witnesses are often declared to be hostile. The cause for this has been in view of conditions prevailing in the Court that some pressure by way of inducement has been put upon them, therefore, the said witnesses generally would not endanger themselves at the risk of their lives to state truth in the Court. In the circumstances the Courts have to find out the truth from the statement with caution of such declared hostile witness, consequently such evidence which is to be found to he untrue is to be discarded by the Court. Accordingly the learned Division Bench and the trial Court were justified in discarding/rejecting the evidence of P.W. Safdar Ali. In the circumstances the first contention of the learned counsel has no merit and substance. So far the second contention that the medical evidence was inconsistent to that of ocular evidence on the ground of presence of blackening around fire-arm injuries, therefore, the presence of P.Ws. At the place of occurrence was doubtful has also no merit. The learned Division Bench of the High Court in the said respect has observed in para. 17 of the impugned judgment as follows:-- "17. The only objection raised by the defence in this behalf is that the doctor noticed blackening around the injuries, which could be caused only if the shot is made from a distance of one to four/five feet and not beyond that. It was pointed out that the witnesses stated that the injuries were caused from a distance of 38 to 42 feet. Argument developed by the defence is that the witnesses were either not present at the spot or did not see any one firing at the deceased and gave the fire range by approximation. The Investigating Officer carried out inspection of the injuries and while preparing inquest report (Exh. PH) has mentioned about injuries in Column No,10 thereof.
6. He did not observe blackening around the wounds. Last-worn clothes of the deceased, Chaddar (P-1), vest (P-2) and shirt (P-3) were also &livered by the doctor to the police after postmortem examination. It is clearly mentioned therein that shirt and vest had corresponding perforations, but there is absolutely no mention of any blackening around these holes. Non-observance of blackening around margins of the wounds and holes in the shirt and vest by the Investigating Officer is a clear proof of the fact that the shot had not been made from a close range. Had blackening been available on the clothes of the deceased, the examining doctor would have never omitted to mention the same. Colour of the skin has also not been furnished by the doctor. On receipt of injuries, the affected area undergone process of colour changing due to haemorrhage or swelling. Some time, skin becomes bluish and sometimes becomes black. Doctor has not mentioned the source of blackening as to whether it was due to deposit of gunpowder or due to heat affects of pellets. The doctor could easily take wound wash or clothes wash for laboratory test to be cent. Per cent. Sure of source of blackening but it was never done so. Firing is admitted by the accused side, even Riasat Ali accused, who made a detailed statement did not state as to from what distance the accused side had made firing. We attach no important to this circumstance.
7. Defence version is absurd, ridiculous and fantastic one. So, it is rejected." In Muhammad Rafiq alias Titai v. The State (PLD 1974 SC 65) this Court has observed:-- "We regret we cannot accept this argument for the reason that, in the first, place, it is too much to expect that illiterate or semi-literate witness would be able to indicate the distance in question with scientific exactitude; in the second place, as observed by Burrard:-- If the shot is fired with a cartridge loaded with black powder the blackening range is increased because of the smoke. On combustion black powder gives only about 44% of gaseous and 56% of volatile solid products, and it is this large percentage of volatile solid products, of combustion which cause the heavy smoke. And the smoke is far more potent to deposit blackening than the gasses generated by the combustion of nitro powders. (The Identification of Fire-arms and Forensic Ballistics, p.59). In the next paragraph, on the same page, the learned author goes on to add that:-- All self-loading pistol cartridges are smokeless, but revolver cartridges can be obtained loaded with black powder and it should be remembered that it is possible by filing down the rim to fire the revolver cartridges in a self-loading pistol of the correct calibre. So, the existence of smoke cannot be regarded as proof positive that a self-loading pistol was not used.
8. These observations go to show that the charring effect depends not only on the distance from which the shot is fired but also on the kind of powder used in the missile. We have no information in the present case on this point. In these circumstances, the positive testimony of the eye-witnesses, who' are otherwise dependable and natural Witnesses,. Cannot be cast aside merely on the basis of the theoretical opinions relied upon by the defence." In the instant case besides what has been observed by the learned Division Bench of High Court defence could not bring in the cross-examination of the doctor who performed autopsy upon the deceased the material on the record the reasons for the deposit of alleged blackening by smoke and unburned gun-powder surrounding fire-arm injuries, considering that same would not only depend on the distance from which shot is fired but also on (i) the kind and quantity of gun- powder (charge) used in the cartridge and (ii) length of barrel and size of barrel diameter at muzzle end.
9. The learned Division Bench and trial Court, as well as this Court is fully convinced that the eye- witnesses P.Ws. 3, 4 and 5 were present at the place of occurrence and had seen the incident and their testimony was trustworthy and confidence-inspiring. It is now settled that when the Court is convinced that a witness has seen the incident and said statement was worthy of credence, the conflicting opinion of doctor would neither negate nor outweigh nor nullify the evidentiary value of eye-witness. Reference be made to Ghulamullah 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 and (iv) Yaqoob Shah v. The State PLD 1976 SC 53. In view of the confidence-inspiring ocular testimony of P.Ws. 3, 4 and 5 and foregoing reasons we find no substance in the second contention of learned counsel as well.
10. The learned Division Bench of High Court and trial Court have given legal, valid and cogent reasons in arriving at finding with regard to the guilt of petitioner/accused on basis of 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 the same is dismissed and leave to appeal is declined.