2006 PLP 240 (SCMR)

ABDUL HAMEED DOGAR, J.

Petitioner seeks leave to appeal against the judgment dated 26-1-2004 of a learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeal No.115/J of 2000 filed by him was dismissed and sentenced to death awarded by the trial Court was confirmed and murder reference was answered in affirmative.

2. Briefly, stated, the facts of the case are that on 21-2-1996 at 12-00 noon in the area of Nangal Sandan within the jurisdiction of Police Station Saddar Muridke, District Sheikhupura petitioner Muhammad Razzaq and accused Muhammad Siddiq called bad names to Tariq Mehmood at the shop of Bhola, a Tea Vendor. Tariq Mehmood rushed to his house. Petitioner Muhammad Razzaq and accused Muhammad Siddiq armed with .7 mm rifles along with accused Muhammad Latif and Ramzan armed with .12 bore double-barrel guns reached there. Accused Muhammad Siddiq and Latif made their way to the courtyard of the house. Tariq Mehmood on seeing them climbed over the roof of his house. Muhammad Siddique and Muhammad Latif fired with their rifles which did not hit Tariq Mehmood. Petitioner Muhammad Razzaq allegedly fired with his rifle hitting on the forehead of Tariq Mehmood who fell down. Muhammad Ramzan also resorted to ineffective firing which attracted the residents of Muhallah to the scene of occurrence. All the accused 'including petitioner ran away from the spot. Tariq Mehmood was shifted to General Hospital, Lahore where he succumbed to the injury. The matter was reported to the police and case under sections 302/452/34, P.P.C. Was registered at Police Station Saddar, Muridke. The motive beyond the occurrence is that about three months prior to the occurrence a quarrel took place between the children of deceased Tariq Mehmood and that of Muhammad Latif alias Lala accused due to which deceased Tariq Mehmood had also picked up quarrel with Muhammad Latif accused. However, the matter was patched up but Muhammad Latif accused had the grudge. On 20-3-1996 all the accused were arrested. On the pointation of petitioner Muhammad Razzaq a rifle was recovered.

3. On conclusion of investigation, petitioner and his co-accused were sent up to face trial. A charge under sections 302/452/34, P.P.C. was framed against petitioner and his co-accused to which they pleaded not guilty and claimed trial.

4. Prosecution examined nine witnesses in order to prove its case.

5. On autopsy, Dr. Mukhtar Ahmed, Medical Officer, D.H.Q. Hospital, Sheikhupura (P.W.1) found only one fire-arm lacerated wound 12 c.m. x 3 c.m. x brain matter deep on the top of skull of the deceased.

6. Petitioner and his co-accused in their statements recorded under section 342, Cr.P.C., denied the case of the prosecution and claimed innocence. On a quest on `as to why this case against him', petitioner stated as under: ??????????? "Tariq Mehmood deceased used to sell narcotics in the village along with his wife Mst. Tahira Bibi, complainant. I time and again forbade him from doing so, but despite all my efforts he did not stop himself from such activities. On the fateful day I was firing in the air in self-defence. One of the fires hit the deceased on his head who succumbed to the injury. P.Ws. are closely related to the deceased."

7. They neither examined themselves on oath as required under section 340(2), Cr.P.C. nor led any evidence in defence.

8. On the conclusion of trial, petitioner was convicted under section 302(b), P.P.C. and sentenced to death. He was also directed to pay Rs.1,00,000 as compensation to the legal heirs of the deceased or in default thereof to further suffer six months' R.I. However, the learned trial Court acquitted the accused Muhammad Latif, Muhammad Ramzan and Muhammad Siddique from the charges.

9. Being aggrieved, petitioner challenged the judgment in appeal before learned Lahore High Court, Lahore which, was dismissed vide impugned judgment.

10. We have heard Mr. Arshad Ali Chaudhary, learned Advocate Supreme Court for the petitioner and have gone through the record and the proceedings of the case in minute particulars.

11. It is mainly contended by the learned counsel for petitioner that the impugned judgment is erroneous, untenable in law, unjust and is based upon conjectures and surmises. He maintained that the ocular evidence is contradicted by the medical evidence and suffers from material discrepancies. He pointed out that the case of the prosecution is based on interested and inimical evidence, as such, it requires independent corroboration which is lacking in this case. He contended that the ocular evidence furnished by the prosecution is consisting of statements' of complainant Mst. Tahira Bibi as P.W.5 and Muhammad Arif as P.W.7 but no independent witness has been cited and, therefore, they are interested witnesses and their testimony is not free of doubt and should not be accepted without any independent corroboration.

12. The ocular straightforward and consistent testimony furnished by complainant Mst. Tahira Bibi and P.W. Muhammad Arif and was found to be creditworthy by the trial Court as well as the First Appellate Court. There appears to be no inherent defect or material lacuna in the evidence of both the eye-witnesses whose presence at the site has been established beyond any reasonable shadow of doubt being material and natural witnesses. Mere relationship is no ground to discard the evidence, which otherwise is true, natural and believable in character. The prosecution has fully proved its case by producing cogent evidence to the extent that it was petitioner who fired at the deceased. Though the witnesses were cross-examined yet their evidence was not shattered at all. Both the eye-witnesses have categorically stated in their statements that the deceased sustained fire-arm injury on his forehead. In the event of proof of charge of Qatl-e-Amd normal penalty under the law is death and extenuating circumstances must be shown for taking a lenient view and for the award' of lesser penalty, which do not appear to exist on the face of record. The learned counsel for petitioner has failed to point out any illegality or irregularity in the impugned judgment to warrant interference by this Court, therefore, we are not inclined to reappraise it as on the face of it, it does not seem to suffer from any infirmity.

13. For what has been stated above, we do not find any reason to interfere with the concurrent findings of two Courts below. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused. N.H.Q./M-322/SC????????????????????????????????????????????????????????????????? Leave to appeal refused.