2006 PLP 1778 (SCMR)

HAMID ALI MIRZA, J.

This jail petition for leave to appeal is directed against judgment, dated 1-9-2005 in Jail Criminal Appeal No.624 of 2004 and Murder Reference No.30 of 2004 passed by learned Division Bench of the Peshawar High Court, Peshawar whereby the said appeal was dismissed modifying the conviction from section 302(a), P.P.C. to section 302(b), P.P.C., however, sentence of death was maintained, hence, this petition for leave to appeal through jail.

2. Brief facts of the case are that the petitioner Shams-ul-Islam alias Fakhar-ul-Islam and Nasir were charged that the petitioner Shams ul-Islam on 15-1-2002 at 0530 hours at Jabil Kanda Sar Lakopani Road while armed with .30 bore pistol committed Qatl-e-Amd of Gulfaraz Khan by firing at him and that he on the same date and time also attempted at the life of complainant Khan Sharif by firing at him ineffectively and that co-accused Nasir Khan though witnessed the petitioner Shams-ul-Islam committing Qatl-e-Amd of Gulfaraz Khan but intentionally omitted to give information which he was legally bound to. The said charge was read over to the petitioner and co-accused to which they denied, hence they were tried by Additional Sessions Judge/Judicial Special Court, Mardan at Takht Bhai, who convicted the petitioner under section 302(a), P.P.C. and sentenced him to death as Qisas while acquitted co-accused Nasir of the charge. The petitioner preferred Criminal Appeal No.624 of 2004 before the Peshawar High Court, Peshawar which appeal was dismissed with modification in conviction under section 302(a) to 302(b), P.P.C.

3. We have heard Mr. Muhammad Zaman Bhatti, learned counsel for the petitioner and perused the record.

4. Contention of learned counsel for the petitioner is that the impugned judgment cannot be sustained in law as there has been misreading and non-reading of evidence by the learned Division Bench of the High Court and the Court below.

5. We do not find any substance and merit in the said contention.

6. No misreading and non-reading of evidence from the impugned judgment has been pointed out by the learned counsel for the petitioner though he has taken us through the relevant record of the case.

7. Admittedly it is a case where within one hours of the occurrence F.I.R. was lodged by P.W.9 Khan Sharif wherein he has specifically named the petitioner specifying his overt act in the commission of offence and has thus, reiterated what was stated by him in the F.I.R. P.W.9 Khan Sharif was cross-examined at length by learned counsel for the petitioner but his veracity could not be shaken. P.W.9 is also corroborated by P.W.10 Shereen Khan who has implicated the petitioner with the act of firing at the deceased. P.W. 10 was also cross-examined at length by the counsel for the petitioner but his credibility could not be' shaken. The ocular evidence of above two P.Ws.9 and 10 is unimpeachable and confidence inspiring which evidence is also corroborated by recovery of pistol and positive report Exh. P. Z./1 of Forensic Expert and Criminologist who has opined that four empties of .30 bore pistol were fired from the .30 bore Pistol No.A3149. Recovery of pistol is also proved by marginal witness of the recovery of the same. There is no ambiguity in the identification of petitioner as petitioner Shams-ul-Islam is the same person who is also called by alias Fakhar-ul-Islam against whom the above said P.Ws. in their confidence inspiring testimony have deposed to have committed murder of deceased Gulfaraz Khan. Medical evidence of Dr. Zahoor Ali Shah, P.W.1, is also consistent with ocular testimony of said P.Ws.

8. We do not find any misreading or non-reading or material illegality or infirmity with the impugned judgment, therefore, no interference is called for. Accordingly this petition has no merit, consequently leave to appeal is declined and the petition is dismissed. S. A.K. /S-50/SC Leave refused.