' MUHAMMAD NAWAZ ABBASI, J.--This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been preferred against the judgment dated 17-8-2001 passed by a Division Bench of Lahore High Court, Rawalpindi Bench, through which Criminal Appeal No,177 of 1998 with murder reference sent by the trial Court under section 174, Cr.P.C. To the High Court, was disposed of.
2. The petitioner was charged and tried by the Additional Sessions Judge, Rawalpindi, under section 302(b), P.P.C. For the allegation of committing murder of Maqsood Ahmed and having been found guilty, was sentenced to death. In addition, the petitioner was directed to pay Rs,40,000 as compensation to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default of payment of compensation, to undergo S-I. For six months. The co-accused of the petitioner namely Sajid Mahmood and Tayyab were acquitted. The, conviction and sentence awarded to the petitioner was maintained by the High Court by dismissing his appeal.
3. Learned counsel for the petitioner has sought leave to appeal against the impugned judgment, inter alia, on the following grounds:--
(a) That the presence of the eye-witnesses at the spot was doubtful and they being real brothers of the deceased, were interested and not trustworthy.
(b) That the possibility of happening the occurrence in the dark being not ruled out, the identity of the assailant was not possible due to the poor visibility.
(c) That no corroborative evidence of independent nature was available as the motive was shrouded in mystery and the matching of the empty taken out from the barrel of gun at the time of its recovery after a considerable time, would be of no evidentiary value.
4. The occurrence in the present case took place at 7-00 p.m. On 19-7-1997 at railway track near Chamman Zar Colony in the area of Police Station Civil Lines, Rawalpindi, and the case was registered at 08-40 p.m. On the basis of statement of Chan Bahbood, recorded by Syed Ejaz Hussain, Shah, S.-I. At 08-15 in the Civil Hospital, Rawalpindi. The dead body was taken to the hospital by Gul Khan, Foot Constable at 07-45 p.m. And it was identified by Maqbool Hussain and Syed Bashirul Hassan in the hospital. The prosecution case as contained in the F.I.R., is that Chan Mahboob complainant along with Maqsood Ahmad deceased and Yaqoob Hassan, his brother, was sitting on railway track near Ziarat Phalwan Shah, when Abdul Razzaq alias Zaka armed with .12 bore rifle, Sajid alias Kaku armed with Danda and Tayyab, empty-handed, on arrival of Maqsood Ahmed on the railway line raised Lalkara to teach a lesson to him for abusing them and simultaneously Abdur Razaq, alias Zaka fired a shot at Maqsood Ahmed which hit on his chest and he fell on the ground. The occurrence was also witnessed by Muhammad Yaqoob, Raja Fazlur Rehman and Faisalur Rehman. The motive for the occurrence was that a quarrel had taken place between Muhammad Yaqoob and sons of petitioner, prior to the present occurrence and Maqsood Ahmed deceased had reprimanded Tayyab for which the accused being revengeful, in furtherance of their common intenttion, committed murder of Maqsood Ahmed Dr. Muhammad Shafiq, Medical Officer, District Headquarters Hospital, Rawalpindi, during the post-mortem examination of the deceased, traced the following injuries on the dead body:- "(1). Multiple small wounds of entry of fire-arm each measuring .2 x .2 c.m. Scattered over in front of whole chest and neck region at an area of 29 x 36 c.m.
(2). Multiple small wounds of entry of fire-arm each measuring .2 x .2 c.m. At posterior side of right hand and up to middle to fire-arm.
' The doctor opined that injury number 1 was sufficient to cause death in the ordinary course of nature. The blood-stained earth secured by the Investigating Officer from the place of occurrence was sent to Chemical Examiner and as per report of the Chemical Examiner, it was found stained with human blood. The .12 bore gun with crime empty in its barrel recovered from the petitioner after his arrest, was sent to Forensic Science Laboratory and as per report of ballistic expert, the crime empty was fired from the gun. Chan Mahboob (P.W.3) and Yaqoob Hassan (P.W.6), real brothers of the deceased while furnishing the eye-witnesses account, have supported the story of the F.I.R. Without any describable discrepancy and contradiction. They stated that the railway track is located at a distance of 150 yards from Chaman Zar Colony and the residence of the accused is also at a short distance from the place of occurrence and that the distance between the- residences of the deceased and accused is about 400 yards. The eyewitnesses claimed that deceased was immediately taken by them to the hospital for medical aid but on arrival in the hospital, doctor found him dead. The recovery of rifle allegedly used as weapon of offence by the accused, was witnessed by Muhammad Ashraf (P.W.7), Muhammad Latif, Head Constable, P.W.8, Moharrar of the police station, kept the case property in Malkhana in sealed parcel and subsequently, sent the same to the office of Chemical Examiner and Forensic Science Laboratory through a constable. Gul Khan, Head Constable P.W.9 escorted the dead body to the mortuary for post-mortem examination. Syed Ijaz Hussain Shah, S.-I., P.W.11 after recording the statement of Chan Mahboob complainant in the hospital at 08-50 p.m. Sent the same to the Police Station, Civil Lines, Rawalpindi, for registration of case. The investigation officer having prepared the injury statement and inquest report of the dead body, proceeded to the place of occurrence and during the spot inspection, collected bloodstained pebbles through sealed parcel and prepared rough site plan of the place of occurrence. The petitioner was arrested on 25-7-1997 and he got recovered the weapon of offence on 29-7-1997. The petitioner in his statement under section 342, Cr.P.C. Denied the charge and pleaded innocence. In an answer to the question 'as to why he was made accused in the case and why P.Ws. Deposed against him', the petitioner replied in the following manner:-- ' "Fazal ur Rehman and Faisal ur Rehman relatives of the complainant party used to sell narcotics in our street. We used to condemn and warn them for reporting the matter to the police who developed grudge against us. Taking undue advantage of unwitnessed occurrence, they managed and prevailed the complainant party and made us accused persons in the instant case. Eye- witnesses were not present at all at the place of occurrence. The deceased had died due to some stray bullet from 'Ziarat' side where there was 'Hala Gulla' Urs and firing and we have been falsely implicated in this case.
5. Learned counsel for the petitioner contended that presence of the witnesses at the spot was doubtful as it was not mentioned in the F.I.R. Or in the post-mortem report that deceased was taken to hospital by the eyewitnesses which would be a strong circumstance to suggest that it was an unseen occurrence. The mere omission in the F.I.R. And medical report the names of witnesses would not dislodge their deposition on oath that they accompanied the deceased to the hospital.
Chan Mahbood (P.W.3) the first informant has categorically stated that he took his injured brother to the hospital in a vehicle with the help of Yaqoob Hussain (P.W.6). The defence despite lengthy cross-examination, has not been able to bring any thing material on record to indicate that either the occurrence was unseen or the statement of the first informant and Yaqoob Hussain was not truthful and confidence-inspiring. The fateful occurrence took place at about 07-00 p.m. i.e, before the sunset and as per statement of the doctor, the deceased was brought to hospital at 07-45 p.m.
When it was still not dark and thus the contention of learned counsel that occurrence took place in the dark, stood repelled by the evidence on the record. The recording of the statement of complainant in the hospital at 08-15 p.m. By the Sub-Inspector would exclude the possibility of any deliberation or substitution of the petitioner for the unknown culprit as contended by the learned counsel and further it does not appeal to mind that the complainant party would involve an innocent person in a case of capital punishment at the instance of his opponent. It being common in our society that the people take interest in the Melas and Urs, therefore, the presence of eye- witnesses at the railway track at the relevant time to view the Mela at Ziarat located at a short distance from their houses, would be natural: This is an admitted fact that there was no enmity between the parties and the occurrence was result of incident of exchange of hot words between Yaqoob Hussain (P.W.6) and Tayyab, acquitted accused, the brother of the present petitioner in which the deceased had reprimanded the said Tayyab. The grudge of the petitioner due to the above incident was sufficiently established on record through the direct evidence of motive and the circumstances under which the occurrence took place would provide I C ample of premediation.
6.We having scanned the evidence, find that prosecution has been successful in proving the murder charge against to petitioner beyond doubt, therefore, the verdict of being guilty given by the trial Court against the petitioner and maintained by the High Court would not call for any interference. Having considered the question of sentence, we have not been able to find out any mitigating circumstance in favour of the petitioner for lesser penalty. Therefore, we while maintaining the conviction and sentence awarded to him, dismiss this petition. Leave is refused.