LIAQAT vs THE STATE

' MUHAMMAD NAWAZ ABBASI, J.--- This petition under Article 185(3) of the Constitution of Islamic Republic of Pakistan has been directed against the judgment, dated 27-5-2003 passed by a Division Bench of Peshawar High Court, Peshawar, whereby the capital punishment awarded to the petitioner under section 302(b), P.P.C. By the trial Court was maintained.

2. Liaqat petitioner, along with his co-accused Said Qamar, was tried for the charge under sections 302/324/34, P.P.C. In a case registered against them at Police Station Bhoar, District Swabi for committing murder of Zargham Shah and his minor son Makhmal Shah. The learned Additional Sessions Judge, Swabi, having found the petitioner guilty of the charge, awarded him sentence of death on two counts and also burdened him with payment of Rs,50,000 as compensation to the legal heirs of deceased under section 544-A, Cr.P.C. The petitioner was also convicted and sentenced to R.I. For five years under section 337-A(iv), P.P.C.

3. The brief facts in the background are that on 24-2-2000, Zargham Shah, deceased and his nephew Wahid Shah, along with Mukammil Shah (deceased) and Fazal Shah, injured, after offering Asar prayer in the mosque, were proceeding towards their house, when. Liaqat petitioner armed with kalashnikov and his co-accused also armed with fire-arms, suddenly opened firing at them as a result of which Zargham Shah, Makhmal Shah and Fazal Shah sustained injuries. Zargham Shah and Makhmal Shah succumbed to the injuries at the spot while Fazal Shah survived. The motive for the murder as stated was that 1-1/2 month prior to the occurrence petitioner sustained injuries at the hand of Ghulam Shah and Liaqat, nephew of Zameen Shah complainant. The prosecution in addition to the complainant, Zameen Shah (P.W.8), Wahid Shah (P.W.9) (eye-witnesses) and doctor who conducted postmortem examination of the deceased also examined a number of witnesses including the police officials who remained associated with the investigation at different stages.

4. Learned counsel for the petitioner has raised the following contentions in support of this petition:--

(a) There was unexplained delay in lodging the F.I.R., which would strongly suggest that case was registered after deliberation and preliminary investigation.

(b) The eye-witnesses being closely related to the deceased were partisan and were not independent and that in absence of any other independent evidence, it would be unsafe to place reliance only on the ocular account furnished by inimical witnesses.

(c) The motive of enmity between the parties set up by the prosecution in the F.I.R. Being double- edged weapon, would not be relevant to determine the guilt of petitioner.

(d) The prosecution version that firing was made with kalashnikovs stood belied by the report of Ballistic Expert and in consequence thereto, an inference would be drawn that incident had not taken place in the manner as narrated by the witnesses and was unseen.

' Lastly, learned counsel argued that since no specific role of causing fire-arm injures to the deceased was attributed to the petitioner, therefore, the case against him was not distinguishable to that of the acquitted accused and thus, his conviction and sentence was bad in law.

5. We having heard the learned counsel for the petitioner and perused the record with his assistance, have not been able to find out any describable discrepancy or lacuna in the prosecution evidence to suggest that the occurrence had not taken place in the manner as stated by the eye-witnesses. The sad incident had taken place at a short distance from the mosque when the witnesses and the deceased after offering Asar prayer, were proceeding together, towards their houses, therefore, the presence of witnesses at the place of occurrence was quite natural and the contention that it was an un-witnessed occurrence was without any foundation. There is also nothing on record to doubt the credibility of the eye-witnesses or suggest that their deposition was not confidence-inspiring. The learned counsel has not been able to point out any factual or legal defect in the concurrent finding of two Courts qua the guilt of the petitioner the mere report of Ballistic Expert, suggesting that all empties were fired from the same weapons, would not be sufficient to discard the evidence of natural witnesses who had no enmity with the petitioner and were quite independent. This is settled principle of criminal law that absence or weakness of motive is not a valid ground to disbelieve the eye-witnesses account if otherwise, it is found independent and confidence-inspiring. The learned counsel for the petitioner has not been able to convince us that either the ocular account was not truthful or petitioner was substituted for unknown culprit due to the enmity. It may be seen that substitution is rare phenomenon whereas the enmity is considered double-edged weapon but since the motive is not, an essential ingredient for the crime, therefore, its absence or weakness may not reflect upon the direct evidence. In the present case we find that the evidence of the eye-witnesses seeking ample corroboration from the medical evidence and recovery of the crime weapon would sufficiently establish the charge of murder against the petitioner and learned counsel has not been able to point out anything material to suggest even a slight doubt vis-a-vis his guilt.

6. In the light of foregoing discussion, we find no substance in this petition and the same is accordingly dismissed. Leave is, refused. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.