2006 PLP 1831 (SCMR)

NASIR-UL-MULK, J.

The petitioner, Jamil, seeks leave to appeal from the judgment of the Lahore High Court dated 21-7-2004, dismissing his appeal from the judgment of the Judge, Special Court, Sheikhupura of 16-10-2001, whereby he was convicted under section 302(b) on two counts, for the murders of Abdul Qayyum and Muhammad Rafique, and sentenced respectively to death and imprisonment for life. Seven of the petitioners co-accused were acquitted by the trial Court, whereas another accused, Muhammad Azam, did not face trial as he remained at large.

2. The F.I.R. in the case was registered on 9-7-1999 on the report of Muhammad Siddique, who alleged that he, his two sons, Abdul Qayyum and Asif, along with his two nephews, Muhammad Rafique and Munir Ahmad, and one Asghar Ali were busy in measuring a plot adjacent to the complainant's house when Jamil, Muhammad Azam, and seven others, all carrying fire-arms, came along. Out of them, Muhammad Munir and Khadim Hussain called upon Jamil, Shahid' and Muhammad Azam that Abdul Qayyum and the others be killed. Responding to the call Jamil fired with his .7 mm rifle at Abdul Qayyum, hitting him on the chest. Muhammad Azam shot Muhammad Rafique on the chest with his .12 bore shotgun, where after Shahid accused fired with his .12 bore gun hitting Muhammad Rafique on the upper arm. The other accused allegedly fired with their weapons indiscriminately, but hitting no one.

3. The complainant, Muhammad Siddique, father of the deceased Abdul Qayyum and uncle of the other deceased Muhammad Rafique, died before the trial commenced and his statement could not be recorded. However, the other two eye-witnesses, Muhammad Munir and Asghar Ali, who were present at the scene of murders were examined by the prosecution. In addition to the ocular testimony the prosecution sought support from the medical evidence and the existence of motive to commit the crime.

4. Mr. Munir Ahmad Bhatti, appearing for the petitioner submitted that two eye-witnesses are closely related to the deceased, one being the brother of the deceased Abdul Qayyum and the other the brother of Muhammad Rafique deceased. That being interested their testimonies require corroboration, which the prosecution has failed to furnish. He next argued that the motive set up by the prosecution is far-fetched as the occurrence had taken place a year after the alleged dispute over the property between Abdul Qayyum and the petitioner. He further submitted that the Investigating Officer had found the petitioner innocent, who was thus, placed in Column No.2 of the charge-sheet.

5. Mr. Muhammad Zaman Bhatti, Advocate Supreme Court representing the State on caveat contended that it was the petitioner who had the direct motive to commit the crime. That there is unimpeachable ocular testimony of two eye-witnesses whose testimony is consistent with the other prosecution evidence.

6. There were three eye-witnesses of the occurrence, which took in a. plot adjacent to the house of the complainant, father of one of the deceased, Abdul Qayyum. The presence of the witnesses and the two deceased, all closely related, at the scene of occurrence was thus, not unnatural. According to the consistent prosecution story, the foundation of which was laid in the F.I.R., it was the petitioner who opened the attack by shooting down Abdul Qayyum deceased. It was he who had the direct motive to launch the attack as he had quarrelled with Abdul Qayyum on account of dispute over shops, regarding which F.I.R. No.158 was registered under sections 324 and 432, P.P.C. against the petitioner. That case was still pending trial in Court. The complainant had died before the commencement of the trial. However, testimony of the two others eye-witnesses, though closely related to the deceased, is consistent with the prosecution case and confidence-inspiring. The ocular testimony receives corroboration from the medical evidence and the motive.

7. In these circumstances we do not find any error, factually or legally, in the impugned judgment and thus, the conclusion drawn by the High Court does not call for interference. Resultantly, the petitions fail and leave to appeal is declined. S.M.B./J-8/SC Appeal dismissed.