2008 PLP 108 (SCMR)

NASIR-UL-MULK, J.

The petitioner along with his co-accused, Naseer Ahmed, Afzaal Ahmad and Muhammad Yaqoob, were tried by the Judge, Anti-Terrorism Court No.IV, Lahore in a case of murder and dacoity. Two other accused remained at large and did not face trial. The petitioner was convicted for a number of offences details of which are mentioned in the impugned judgment of the Lahore High Court and under section 302, P.P.G. and section 7 of the Anti-Terrorism Act, 1997 and was awarded sentences of death. These conviction and sentences were upheld by the Lahore High Court. The co-accused tried with the petitioner were acquitted by the trial Court and the same was not questioned before the High Court. The petitioner through this jail petition for leave to appeal has assailed his conviction and sentences.

2. The incident took place on 13-7-2001 when Ashfaq Ahmed, complainant in the case, was proceeding in a Suzuki car along with his uncle, Bashir Ahmed, within the limits of Police Station Kot Lakhpat, Lahore at 6-45 p.m. when they were stopped by six armed persons. The said persons on gunpoint deprived the complainant of his vehicle and compelled him and his uncle to flee from the scene. While the complaint was fleeing away he met a police party headed by Rehmat Ali, A.S.-I., whom he informed about the dacoity. The said police party went towards the scene of the dacoity along with the complainant. The dacoits; however, when challenged, started firing and as a result, a constable by name of Muhammad Hanif, was hit who later succumbed to his injuries. The police party, however, managed to arrest the petitioner and seized from him a .12 bore shotgun. The other dacoits managed to escape.

3. Mr. Muhammad Zaman Bhatti, Advocate Supreme Court appeared for the petitioner and Mr. Shabir Ahmed Lali, Deputy Prosecutor-General, represented the State. The main contention of the learned counsel for the petitioner was that the ocular testimony was contradicted by the medical evidence inasmuch as according to ?he eye-witnesses the petitioner was carrying a .12 bore shotgun from which he fired, whereas the medical evidence suggests that the injuries received by the deceased were caused by bullets. In this context, he referred to the statement of the doctor who had examined the deceased and also the dimension of the' injuries., He next contended that the matching of the empties with the gun allegedly recovered from the petitioner was weak evidence in that the empties as well as gun were sent to the Forensic Science Laboratory at the same time and that also after a considerable delay.

4. The complainant, Ashfaq Ahmed, is a disinterested witness who was victim of the dacoity as he was deprived of his vehicle by the dacoits. The dacoits were still present at the scene of the dacoity when the police surprised them. After exchange of firing in which a constable was killed, the petitioner was arrested along with the weapon of offence from the scene of the incident. The remaining dacoits escaped. Since the complainant had no personal motive and was an independent disinterested witness, his testimony alone is sufficient for sustaining the petitioner's conviction. His testimony is further strengthened by the statements of other eye-witnesses, Akhtar Ali, Muhammad Ikram and Umar Daraz, who were members of the police party which had exchanged fire with the dacoits and subsequently, arrested the petitioner from the scene. Though police officials they had no personal interest in the case and therefore, there is no reason to disbelieve their testimony. Further support however, to the ocular evidence has come from the arrest of the petitioner from the scene and matching of the empties recovered from the spot with the gun which the petitioner carried at the time. The dispatch of the gun and the empties at the same time to the Forensic Science Laboratory does not weaken the evidentiary value of the positive result of the laboratory in that both were recovered at the same time. As regards the weapon used, the doctor had expressed his inability to affirmatively state as to whether or not the injuries could have been caused by pellets from a shotgun.

5. There was sufficient independent and disinterested evidence not only of the complainant but by the police officials who were also eye-witnesses of the occurrence. We, therefore, do not consider that the findings of guilt of the petitioner recorded by the two Courts call for any interference. Resultantly, the petition fails and the leave declined. M.H./A-50/SC Petition dismissed.