1. ' MUHAMMAD NAWAZ ABBASI, J.---This petition for special leave to appeal under Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973 has been filed against the judgment, dated 9-7- 2001 passed in Criminal Appeal No,18 of 2000 and Murder Reference No,4 of 2000 by a Division Bench of Lahore High Court, Bahawalpur Bench. Through which the conviction and sentence awarded to the petitioner and his co-accused namely Muhammad Yaqoob and Irfan, by the trial Court was maintained. The petitioner and his above-named two co-accused were convicted under sections 392, 302, 34, P.P.C. Read with section 411, P.P.C. In a case registered against them at Police Station Ahmedpur Sharqia, District Bahawalpur, by the Special Court established under Anti- Terrorism Act, 1997 (hereinafter to be referred to as Act of 1997) at Bahawalpur. The learned trial Judge having found all the three accused guilty of the charge vide. Judgment, dated 22-5-2000, convicted and sentenced them as under:---
(a) Under section 302, P.P.C. The petitioner was sentenced to death whereas Muhammad Yaqoob and Muhammad Irfan his co-accused were awarded imprisonment for life.
(b) Under section 392, P.P.C., the petitioner and his above-named his co-accused were awarded the sentence of imprisonment for 14 years with fine of Rs,50,000 each and in default in payment of fine to undergo simple imprisonment for three years each. They were also awarded sentence of three years' R.I. With fine of Rs,10,000 each under section 411, P.P.C. And in default of payment of fine to suffer simple imprisonment for one year each. The benefit of section 382-B, Cr.P C. Was extended to the petitioner and his co-accused in relation to the sentences of imprisonment awarded to them. In appeal the High Court while maintaining the conviction and sentence of petitioner under section 302, P.P.C. Acquitted him from the remaining charges whereas his co-accused were acquitted from all the charges.
2. ' Learned counsel for the petitioner has contended that the conviction and sentence awarded to the petitioner is not sustainable on the basis of evidence which was not relied upon qua the acquitted accused. He argued that the prosecution evidence was also not found confidence- inspiring by the High Court to establish the charge against the petitioner under section 392, P.P.C.
3. Read with section 411, P.P.C. And further no reliance was placed on the said evidence to maintain the conviction and sentence awarded to Muhammad Yaqoob and Muhammad lrfan under section 302, P.P.C. And thus it would not be proper and legal to hold the petitioner guilty of the charge under section 302, P.P.C. On the basis of such evidence. The learned counsel has next argued that the petitioner was attributed to have fired single shot at the deceased and it could not be said with certainty that the shot was fired by the petitioner with the aim to commit the murder or to escape from the place of occurrence and that except the close relatives of the deceased none amongst.
4. The passengers of the wagon was produced by the prosecution, therefore, it would be unsafe to accept the sole testimony of witnesses to convict the petitioner without independent corroboration.
5. The learned counsel in the alternate argued that in any case, it would not be a case of capital punishment and petitioner would deserve leniency in the matter of sentence. The learned counsel appearing for the State has argued that the petitioner was identified by the eye-witnesses in the identification parade and further the empty recovered from the place of occurrence was found matched with the pistol recovered from the accused on his arrest. He added that the eye- witnesses' account was entirely independent which would fully satisfied the test of reliability and would also seek ample corroboration from recoveries and the medical evidence.
6. ' The occurrence in the present case took place at 7-30 p.m. On 16-1-2000 near village Inayatpur situated at a distance of 15 Kms. From Police Station Ahmedpur Sharqia Saddar and the report was lodged by Ghulam Murtaza, the first informant, within one hour on the same day.
7. ' The summary of the relevant facts as narrated in the F.I.R. Is that Ghulam Mustafa real brother of Ghulam Murtaza, the first informant, being employee of police, was posted in Police Station Ahmedpur Sharqia. The mother of deceased and complainant being heart patient, felt some problem and the first informant alongwith Ghulam Abbas his another brother and Anwar Ali his cousin went to Ahmedpur Sharqia to inform Ghulam Mustafa, about the ailment of their mother.
8. The deceased in company of his brother and cousin proceeded to wagon stand and to go to their village, boarded in a wagon which was being driven by one Muhammad Rafiq and Majid Hussain was conductor at the wagon. Apart from the complainant and is companions a few other passengers also boarded in the wagon and when it reached near Chotigoot, one of the passengers armed with pistol, who was ,sitting behind the driver, inflicted a pistol blow on the head of driver and directed him to stop the wagon whereas his two other companions duly armed directed the passengers not to move. The driver was brought out of the wagon forcibly by one of the culprits and the remaining two drove the wagon on the Kucha and while parking it at some distance from the road started looting the passengers at pistol point. Ghulam Mustafa, brother of the first informant, having only rupees fifteen in his pocket handed over the same to the culprits and on their further demand, Ghulam Mustafa told them that he being a police constable, had no money whereupon one of the accused suddenly fired a Ghulam Mustafa who succumbed to the injuries at the spot. The accused after the occurrence, ran away from the spot with the wagon and later were arrested by the police of Liaqatpur Police Station in another case. During the investigation the accused disclosed that they were also involved in the present case, therefore, they were produced by the police before a local Magistrate for handing over their custody to the S.H.O., Police Station Ahmedpur Sharqia. However, the Magistrate directed for remission of their custody in judicial lock-up for their identification parade which was held under the supervision of a Magistrate, on 28-1-2001 in jail and the eye-witnesses correctly identified each of the accused in the identification parade with the role played by them in the occurrence. The petitioner while in police custody led to the recovery of certain articles belonging to the complainant on 30-1-2001 and on the same day got recovered pistol .30 bore with live cartridges. The material witnesses, apart from eye-witnesses produced by the prosecution are, the doctor who conducted post- mortem on the dead, body of deceased and the Magistrate who supervised the identification parade in proof of the charge. The conviction and sentence awarded to the petitioner by the trial Court was upheld by the High Court with the following observations: ' "The statements of the- prosecution witnesses implicating particularly Muhammad Ramzan for causing the death of Ghulam Mustafa with his revolver has been fully corroborated by the medical evidence as well as the recovery of the pistol with which crime empty taken into possession was duly matched according to the report of Forensic Science Laboratory, Exh.PDD."
9. ' We have thoroughly examined the evidence with the assistance of learned counsel and considered the contentions raised by him in support of this petition. This is noticeable that the accused boarded in the wagon when it was sufficient light and they, despite being strangers, during travelling in the wagon with the witnesses from wagon stand to the place of occurrence would sufficiently become familiar by faces to the witnesses and therefore, their identification by the witnesses in jail would be free of any doubt. We have not been able to find out any material discrepancy and contradiction in the prosecution evidence which could be a source of even a slight doubt regarding the guilt of the petitioner who was correctly identified by the witnesses in the identification parade and also in the Court as one of the culprits who caused fire-arm injuries to the deceased. Undoubtedly, the occurrence took place during the dark hours on the roadside but as observed earlier the identity of the petitioner would be beyond doubt as the petitioner with his companions travelled with the witnesses in the wagon in the day light for considerable distance and their faces were not muffled either at the time of boarding in the wagon or at the time of alleged occurrence and thus despite it being dark at the time occurrence, their identification was not questionable which stood established beyond doubt. The witnesses being not known to the petitioner before the occurrence had no reason to make a false statement against him in a case of capital punishment. The crime empty recovered from the place of occurrence was found matched with the weapon subsequently recovered from the petitioner on his arrest, therefore, the acquittal of the co-accused of the petitioner in the given circumstances would not be helpful to the petitioner as there was sufficient corroborative evidence in the form of recoveries, the medical evidence and the identification of the petitioner in the identification parade and also in Court. We having gone through the reasoning given by the High Court for acquittal of the co-accused of the petitioner do not find the same convincing but since the State or complainant have not challenged their acquittal, therefore we without commenting any further on their acquittal hold that the same would not in any case effect the prosecution case against the present petitioner. The learned trial Judge and also the High Court in appeal having made detailed scrutiny of evidence and considering all aspects of the case found the petitioner guilty of the charge. We having done the exercise of reappraisal of evidence with the help of learned counsel, have found that no exception can be taken to the guilt of petitioner. The petitioner also does not deserve any leniency in the matter of sentence.
10. ' For the foregoing reasons, we do not find any substance in this petition for grant of leave and the same is dismissed. Leave to appeal is accordingly, refused.