HAMID ALI MIRZA, J.-These are two Criminal Petitions for Leave to Appeal No, 537-L of 2002 filed by Muhammad Ashraf and No,716-L of 2002 filed by Sarfraz against the judgment of conviction, dated 27-5-2002 in Criminal Appeal No,999 of 1999 passed by learned Division Bench of the Lahore High Court, Lahore, whereby appeal to the extent of petitioner Muhammad Ashraf was dismissed, thereby conviction under section 302(b)/34, P.P.C. And sentence to death recorded by learned Special Judge STA, Faisalabad were maintained and murder reference for confirmation of sentence of death was affirmed whereas appeal of Sarfraz was also dismissed and his conviction and sentence were maintained, however sentence of all the appellants for causing injury to Shazia was set aside as she did not appear in the Court in support of prosecution case. So far the accused Rasheed Ahmad, Jaffar Ali and Maqbool Ahmad they were acquitted and Criminal Appeal No,932 of 1999 filed by Maqbool Ahmad was allowed and his conviction and sentence recorded against him were set aside.
2. Brief facts of the case are that Falak Sher lodged F.I.R. No, 325 of Police Station Sadar on 9-6-1993 at 9-45 a.m. Stating therein that they 'were five brothers, one of them Muhammad Aslam was serving in Crescent Sugar Mills, Faisalabad and on the day of occurrence i,e, 9-6-1993 at 8-00 a.m.
He went to Mansha,.Tailor of the village to get the new clothes stitched along with P.W. Allah Ditta on motorcycle of Allah Ditta and when they were returning they saw Muhammad Ashraf, Sarfraz both armed with .222 bore rifles, Rasheed alias Sheedo and Jaffar Ali armed with 7 MM rifles and Neela armed with Mauzer were standing in front of the house of Molvi Noor who exhorted lalkara not to let Muhammad Aslam Fauji go alive which lalkara attracted Zafar Iqbal and Noor Muhammad from nearby grocery shop at the scene of crime viz. Chowk when the petitioner/accused Muhammad Ashraf fired with .222 bore rifle hitting Muhammad Aslam underneath heart on left side and bullet penetrated through back, who collapsed being seriously injured. Sarfraz fired at Allah Ditta hitting on outer side of left thigh. One of the fire shots hit Baby Shazia age about 4/5 years daughter of Nawaz who was passing through nearby chowk and she sustained injury on her belly under umbilicus. The acquitted accused Neela, Jaffar Ali and Rasheed rained indulged in aerial firing and exhorting Lalkara that whoever came near would be murdered, thereafter both the petitioners/accused and acquitted co-accused managed to escape. The complainant Falak Sher and other relatives brought Muhammad Aslam to hospital to Faisalabad on -tractor but the said injured succumbed to injuries while going to the hospital, while Allah Ditta and Shazia were admitted in the hospital in the emergency ward. After usual investigation of the case police submitted charge-sheet before the competent Court where the charge was read over to the petitioners/accused and acquitted co-accused, who pleaded not guilty consequently prosecution examined as many as sixteen P.Ws, thereafter the petitioners and acquitted co- accused were examined under section 342, Cr.P.C. Wherein they denied the commission of said offences. The petitioner Sarfraz examined in defence D.W.1 Haji Mukhtar Ahmad, Inspector. The trial Court after recording the above evidence and hearing learned counsel for the parties convicted and sentenced as per judgment, dated 18-9-1999 whereby the petitioner Muhammad Ashraf was convicted under section 302(b) P.P.C. Sentenced to death for committing Qati-i-Amd of Muhammad Aslam and to pay compensation of Rs, Fifty thousand to the legal heirs of the deceased under section 544-A, Cr.P.C. And in default of payment of compensation to undergo six months S.-I. Sarfraz, Rasheed, Jaffar Ali and Maqbool were convicted under section 302(b), P.P.C.
Read with section 149, P.P.C. And sentenced to imprisonment for life each and to pay Rs, Twenty- five thousand each as compensation under section 544-A, Cr.P.C. And in default to suffer six months S.-I. And all the accused/appellants before the High Court were convicted under section 324, P.P.C. And were sentenced to three years R.I. For launching murderous assault on P.W. Allah Ditta and to pay Rs, Ten thousand daman to P.W. Allah Ditta as Taazir under section 337-F, P.P.C. As per nature of the injury caused to the victim and suffer simple imprisonment till payment of daman. All the accused/appellants in appeal before the High Court were also convicted under section 324, P.P.C. And sentenced to ten years R.I. And to pay one third of Diyat collectively amounting to Rs, Fifty-seven thousand under section 337-D, P.P.C. As Taazir as per nature of injury caused to minor Shazia and in case of default, would suffer simple imprisonment till payment of Diyat of his share. The appellants before the High Court were also convicted under section 148, P.P.C. And sentenced to three years R.I. With a fine of Rs, Five thousand, in default to suffer R.I. For one year. All the sentences were ordered to run concurrently extending benefit of section 382-B, Cr.P.C. In appeal before the High Court, conviction and sentence of Muhammad Ashraf and Sarfraz were maintained while those of Jaffar Ali, Rasheed Ahmad and Maqbool Ahmed were set aside and thereby acquitted. However, conviction of all the accused for causing injury to Baby Shazia was set aside. Convict accused Muhammad Ashraf and Sarfraz have preferred these two criminal petitions for leave to appeal. Petition filed by Sarfraz is barred by seventy days whereas petition filed by Muhammad Ashraf being within time, the delay in filing petition by Sarfraz is condoned considering that petition of co-accused Muhammad Ashraf is to be disposed of on merits.
3. We have heard learned counsel for the petitioners and perused the record with their assistance minutely.
4. Learned counsel for the petitioner Muhammad Ashraf in the first instance raised the plea that the medical evidence did not support the ocular version but subsequently he dropped the said plea considering that the doctor could not be a fire-arm expert. His next plea was that P.W.2 Falak Sher was a chance witness and in fact he was not present at the time of occurrence considering that he resided at the distance of 5/6 acres away from the place of occurrence and that even if it be assumed that as per site-plan he was standing at point No,5 he could not have seen the incident which took place at point No,1 where the deceased Muhammad Aslam was said to have been inflicted fire-arm injuries which was said to be about thirty feet away from the place of incident whereas P.W.3 Allah Ditta is stated to be present at point No,3 of the site-plan which distance was about four feet from the place of occurrence and further the said witness stated two motives and further he was admitted on the date of incident in hospital on 9-6-1993 whereas his statement was recorded on 13-6-1993, therefore, testimony of alleged two eye-witnesses, namely, Falak Sher and Allah Ditta cannot be said to be confidence-inspiring, Mr. S.M. Masud, learned counsel for the petitioner Sarfraz submitted that the petitioner Sarfraz was not present at the place of incident and he has been falsely implicated in the commission of crime.
5. We do not find merit and substance in the submissions of learned counsel for the petitioners.
6. P.W. Falak Sher and P.W. Allah Ditta have given ocular account of the incident when deceased Muhammad Aslam and P.W. Allah Ditta were returning from the shop of Mansha tailor when they were stopped by the petitioners/accused and acquitted co-accused. P.W. Falak Sher has fully implicated the petitioners/accused Muhammad Ashraf and Sarfraz, stating that the petitioners/accused Muhammad Ashraf and Sarfraz were armed with .222 bore rifles when the petitioner/accused Muhammad Ashraf fired with his rifle .222 bore at deceased Muhammad Aslam which hit him on the lower side of heart on front side and the bullet penetrated through his body from the backside who fell down on the ground and further deposed that the petitioner/accused Sarfraz fired at Allah Ditta which hit him on his left thigh and thereafter all the accused fired on them and one bullet hit Baby Shazia who sustained fire-arm injury on the front side of abdomen when she also fell on the ground. Motive was stated that one Ahata was lying in the patti of petitioner/accused Muhammad Ashraf which he wanted to purchase but instead of him said Ahata was purchased by P.W. Falak Sher and deceased Muhammad Aslam due to which said petitioner/accused Muhammad Ashraf along with co-accused was aggrieved. Besides, it was said that petitioner/accused Muhammad Ashraf gave double barrel gun to one Umer Hayat to murder Muhammad Aslam and Alah Ditta but said Umer Hayat was got apprehended by the deceased Muhammad Aslam and was challanned in the said case in the Court under sections 13/20 of the Arms Ordinance, 1965. He also deposed that the petitioner and acquitted co-accused in furtherance of their common intention and motive murdered Muhammad Aslam and caused injuries to the person of Allah Ditta and Baby Shazia. P.W. Falak Sher was cross-examined at length by the learned counsel for the petitioners but no material discrediting his testimony in respect of incident was brought on record and thereby his testimony remained unshaken. P.W.3 Allah Ditta deposed in his deposition that he along with deceased Muhammad Aslam went on a motorcycle to Mansha tailor on the day of incident when they were returning, the petitioners along with acquitted co-accused stopped them when Muhammad Ashraf and Sarfraz petitioner/accused fired when shot fired by Muhammad Ashraf hit Muhammad Aslam beneath his heart penetrating through and through, who thereby collapsed on the ground, while petitioner/accused Sarfraz shot fired P.W. Allah Ditta on his left thigh penetrated through and through, during firing minor Shazia also got fire shot injury under umbilicus. Muhammad Aslam while being removed to hospital succumbed to injuries. P.W. Allah Ditta was cross-examined at length by the petitioner's counsel but no substantial material shaking his veracity could be brought on record. The contention of the learned counsel for the petitioner that both P.Ws who were said to be eye-witnesses were chance witnesses has no merit considering that no material has been brought whereby their confidence- inspiring testimony could be said to have been shaken or discredited. Their testimony is fully corroborated by medical evidence and further the site-plan also proved that Allah Ditta and Falak Sher were at a distance from where they were able to see entire occurrence, considering also the fact that P.W. Allah Ditta had a stamp of injuries on his person which affirmed his presence at the place of occurrence, who had witnessed the petitioners firing at the deceased which resulted in murder of Muhammad Aslam. So far the motive, this Court has time and again held in the latest pronouncements that motive would not play an effective role on the question of commission of crime when it had been established beyond reasonable doubt from the evidence that accused has committed murder therefore, weakness or absence of motive or failure to prove the same in presence of unimpeachable and confidence-inspiring ocular testimony on record, considering that allegations and proof of motive being not legal requirement, when guilt of the accused stood proved beyond reasonable doubt. Reference may be made to (i) Abdul Wahab alias Rehra v. The State 1999 SCM R 1668, (ii) Waris Khan v. The State 2001 SCM R 387, (iii) Imtiaz Ahmad v. The State 2001 SCM R 1334, (iv) Ghalib Hussain and others v. Muhammad Arif and others 2002 SCM R 20 and
(v) Mukhtar Ahmed v. The State PLD 2002 SC 792. The trial Court as well as learned Division Bench of the High Court after scrutiny, analysis and assessment of the evidence has come to correct finding that both eye-witnesses viz. Falak Sher and Allah Ditta had seen the act of firing of petitioners/accused from their respective fire-arms at the deceased as well as at P.W. Allah Ditta.
The learned Division Bench of the High Court and the learned trial Court rightly came to the conclusion that the F.I.R. Was promptly lodged within an hour, mentioning the names of the petitioners/accused, assigning them the specific roles of firing stating locale of injuries with specific weapons therefore there could not have been any deliberation and manipulation in holding the F.I.R. Against the petitioners/accused. Learned Division Bench of the High Court and the trial Court also concurred with the finding of fact that the injuries inflicted upon the deceased and the injured P.W. Allah Ditta as deposed by P.Ws. Coincided with the medical evidence. No animus was assigned to P.W. Allah Ditta who was also inflicted fire-arm shot therefore, he also could not be said to be not present at the place of incident so as to falsely implicate the petitioners/accused in the commission of crime so also P.W. Falak Sher cannot be said to have any enmity to the extent that he would falsely implicate the petitioners in the commission of an offence which was punishable to capital sentence. Mere fact that besides one motive another motive was also stated to be there, would not by itself was sufficient to discard the ocular testimony of P.Ws coupled with medical evidence considering also the fact that the F.I.R. Was promptly lodged and the occurrence took place in broad-daylight therefore, there could not have been any substitution or mistaken identity when there existed no ulterior motive or animosity against the petitioners/accused. Mere fact that a police officer D.W. Haji Mukhtar Ahmad stated that appellant Sarfraz was found by him to be innocent would not be itself sufficient to hold him not guilty when the confidence-inspiring and unimpeachable evidence brought on record proved the guilt of the said petitioners/accused beyond reasonable doubt when his plea of alibi was neither raised in his 342, Cr.P.C. Statement nor any material was brought on record to negate the prosecution evidence. Learned counsel has placed reliance upon Muhammad Tariq v, The State 2003 SCM R 531, and (ii) Feroze Khan v. The State 2002 SCM R 99. We have gone through the above both judgments of this Court but the facts of both cases are quite different and distinguishable to the facts and peculiar circumstances of instant case. We may also observe that this Court has time and again observed that the cases which have already been decided by this Court could hardly be of any assistance on account of the diverse nature and distinguishable features of each criminal case and in such situation rules or principles of general application cannot be laid down. Reference may be made to Imtiaz Ahmad v. The State 2001 SCM R 1334 at 1345 E
7. In the circumstances we do not find any merit and substance in these petitions, as such no exception could be taken to the finding arrived at by the trial Court and affirmed by learned Division Bench of the High Court, considering also that no legal or factual infirmity in the impugned judgment, so also no misreading or non-reading of evidence on record has been pointed out by the learned counsel for the petitioners warranting our interference in the Constitutional jurisdiction of this Court, consequently leave to appeal is declined and the petitions as dismissed.