2006 PLP 841 (SCMR)

ABDUL HAMEED DOGAR, J.

Petitioner seeks leave to appeal against the judgment, dated 17-1-2005 of a learned Division Bench of Lahore High Court, Lahore whereby Criminal Appeal No.187 of 2000 filed by him was dismissed and sentence of death awarded by the trial Court was confirmed.

2. Briefly, stated the facts of the case are that on 10-9-1997 at about 7-00 a.m. complainant Suba along with his brother Muhammad Aslam was going to their Dhari from their house. When they reached at some distance from the village Abadi, acquitted accused Nasir Ali crossed them and he went ahead of them. Petitioner Muhammad Iqbal was sitting in a maiz crop. As soon as complainant reached there Nasir Ali acquitted accused informed Muhammad Iqbal about their presence whereupon petitioner suddenly came out of the crop and raised Lalkara. He fired with his .12 bore gun which hit Muhammad Aslam on his right thigh who fell down. He raised alarm whereupon Zafar and Mansabdar got attracted and witnessed the incident. The petitioner and acquitted accused Nasir ran away from the spot. Muhammad Aslam succumbed to the injuries while shifting to the hospital. Complainant lodged the report at Police Station Bhowana, District Jhang.

3. The motive behind the occurrence was an old enmity between the petitioner and the complainant party.

4. On conclusion of investigation, petitioner was sent up to face trial along with acquitted accused, namely, Nisar Ali.

5. At the trial, the prosecution examined as many as 11 witnesses.

6. On autopsy, Dr. Saifullah Haral, M.O. (P.W.7) found the following injuries on the person of deceased. Muhammad Aslam:-- (i) Multiple small lacerated oval wounds of entry in an area of 6 x 5-1/2 c.m. on back inner part of right upper thigh with lacerated wounds of exit in an area of 7 x 6 c.m. on front of thigh. A grazing lacerated wound 2 x 1 c.m. on inner side of left thigh was also present.

7. Petitioner and his acquitted accused in their respective statements recorded under section 342, Cr.P.C., denied the case of the prosecution and claimed innocence. They neither examined themselves on oath as required under section 340(2), Cr.P.C. nor led any evidence in defence. However, petitioner tendered in evidence copy of judgment of learned High Court as Exh.D.B.

8. On the conclusion of trial, petitioner was convicted under section 302(b), P.P.C. and sentenced to death. However, co-accused Nisar Ali was acquitted from the charges.

9. Being aggrieved, petitioner challenged the judgment in appeal before learned Lahore High Court, Lahore, which was dismissed vide impugned judgment by reducing his sentence to imprisonment for life and imposed a fine of Rs.50,000 to be paid as compensation to the legal heirs of the deceased or in default to suffer six months' S.I. with benefit of section 382-B, Cr.P.C.

10. We have heard Mr. Hifz-ur-Rehman, learned Advocate Supreme Court for petitioner and Mr. Dil Muhammad Tarar, learned Advocate Supreme Court for the State and have gone through the record and the proceedings of the case in minute particulars.

11. Learned counsel appearing for the State has supported the impugned judgment.

12. It is mainly contended by the learned counsel for petitioner that the impugned judgment is erroneous, untenable in law and unjust. 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. Learned counsel submitted that on identical evidence co-accused Nisar Ali had been acquitted by the trial Court, therefore, the benefit of doubt should also have been extended to petitioner.

13. The ocular testimony furnished by P.W.8 complainant Soba and P.W.8 Zafar was found to be trustworthy 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 witnesses whose presence at the site has been established beyond any reasonable shadow of doubt. The prosecution has fully proved its case by producing cogent and convincing evidence to the extent that it was petitioner who fired at deceased Muhammad Aslam. 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 firearm injures. However, it is proved from the record that at the time of incident acquitted accused Nisar Ali was empty-handed, therefore, the learned trial Court 'neither acted illegally nor arbitrarily in extending the benefit of doubt to him. At any event, case of petitioner is distinguishable and not at par with that of co-accused Nisar All since acquitted. The learned High Court has already taken a lenient view by reducing his sentence from death to imprisonment for life. The learned counsel for petitioner has failed to point out any illegality or irregularity in the impugned judgment warranting interference by this Court.

14. For what has been stated above, we do not find any reason to interfere with the impugned judgment. Accordingly, the petition being devoid of force is dismissed and leave to appeal refused. N.H.Q./M-38/SC??????????????????????????????????????????????????????????????????? Leave to appeal refused.