MUNIR AHMED Versus THE STATE

ORDER

ABDUR REHMAN KHAN, J. ‑‑‑This petition from jail impugns the legality of the judgment delivered on 24‑11‑1998, by a learned Division Bench of the Lahore High Court, whereby the appeal preferred by the petitioner against his conviction under section 302, P.P.C. and imposition of death sentence thereunder by the trial Court, was dismissed, and Murder Reference sent by the trial Court was answered in the affirmative.

2. The events which led to the murder of Shahmand deceased in this case, as narrated by the complainant Allah Ditta (P. W.10), are that on 18‑9‑1991 at 9‑30 a.m. he along his brother Shahmand (deceased) and Mst. Zohra, wife of Shahmand, were proceeding from their village towards the City to make purchase of household articles. When they reached near the land of Mirza Qurban Hussain Lambardar of the village at 9‑30 a.m. they noticed the petitioner emerging from the field having .12 bore pistol in one hand and dagger in the other. He raised 'Lalkara' that he would not spare Shahmand for his refusal to return the land. Shahmand started running towards the well of Mirza Qurban Hussain and the accused chased him and fired at him which hit the left side of his back. Shahmand even then continued running and the accused while chasing him re‑loaded his pistol and when Shahmand reached near a tree then the accused fired a second shot at him with which he received the injury on the back of his neck and he fell down on the ground. The accused re‑loaded his pistol and shouted at them that if they came near him they would meet the same end. Thereafter, the accused gave blows with 'Chhurri' on the chest of Shahmand Ali. In the meantime persons were attracted with their hue and cry and so the accused decamped. The deceased had expired by then. The motive which led to the crime was stated to be the annoyance of the petitioner over the purchase of some land from his father by the deceased and then the refusal of the deceased to cancel the sale and to return the land.

3. The perusal of the judgment of the learned trial Court would reveal that it has based the conviction of the petitioner on the following pieces of evidence:‑‑

(i) Ocular account of the incident furnished by Mst. Zohra (P. W.9) and Allah Ditta (P.W.10).

(ii) Promptness in lodging the report as the incident occurred at 9‑30 a.m. and the F.I.R. was lodged at 10‑30 p.m. in the police station at a distance of 9 miles from the spot.

(iii) Recovery of crime pistol and Chhurri and blood‑stained clothes at the behest of the petitioner and matching of the empties recovered from the spot with the pistol.

(iv) Motive stood established.

(v) Medical evidence fully supports the evidence given by the eye‑witnesses.

The reasons for the finding of guilt as given by the trial Court were approved by the High Court and consequently conviction and sentence was maintained but with modification that the sentence was altered from section 302(a) to 302(b), P.P.C. as the test of Tazkiya‑tul‑Shahood had not been complied with.

4. The learned counsel appearing for the petitioner argued that the medical evidence belies the ocular account. In this context he referred to the following portion of the statement of the medical officer who was examined as P. W.9. It was stated by the said witness:‑‑

"The injury No.1 in Exh.P.M. was inflicted from a very near distance. After receiving this injury, the injured could walk in a tumbling way for 2/3 feet. After receiving injury No.2 the injured could run for a few yards. This injury also seems to have been caused from a distance of within three feet. "

The statement of Mst. Zohran was .also referred as she stated:‑‑ '

"My husband had run for a distance of about 10 to 12 Karams that the accused discharged his first fire shot on him. "

The following part of the statement of Allah Ditta the other eye witness (P.W.10) was also referred:

"The deceased had run for a distance of 10/12 Karams that the accused started running and immediately after running behind the deceased he fired at the deceased. It was a pistol in which cartridge is loaded. The place wherefrom the deceased had started running for fear of the accused is at a distance of two Kanals from the Bheni of Mirza Qurban Hussain whereas the village is at a distance of four Kanals from there. "

The precise submission in the light of the above evidence was that the distance thus shown between the assailant and the deceased was 10/12 Karams which would come to 50/55 feet and from that much distance neither the wad could enter the body nor the blackening could have been caused.

5. The learned counsel for the petitioner has not properly read the above evidence of the eye‑witnesses as it does not say that distance between the accused and the deceased was 10 to 12 Karams but what it means is that the deceased had run for the said distance when he was threatened by the accused. The medical evidence shows that the deceased was fired from a close range which is supported by the nature of the injuries as wad was found therein and injuries had blackening over it. It was next contended that the recovery of pistol and Chhurri etc., at the behest of the petitioner is not proved because this recovery was witnessed by P. W.2 who is brother of the deceased. However, it could not be shown what had prompted or induced the said brother of the deceased to implicate the petitioner falsely in this case Moreover, the most important witness is the Investigating Officer who also proved the said recoveries and no motive could be attributed to him for false involvement of the petitioner. It was next argued that the crime empties found from the spot were neither mentioned in the F.I.R. nor in the inquest report. It is not the requirement of law that the crime empties found on the spot must be mentioned in the F.I.R. or inquest report rather the recovery memo. prepared in this respect in exhibited on record.

6. We find that the intrinsic value of the evidence of the eye‑witnesses is of a nature that there is no legal hurdle in accepting it. The truthfulness and independent character of this evidence by itself qualifies it for a valid foundation for conviction even if it had not been corroborated by any other evidence. But in this case we find that the disinterested unbiased and independent nature of the statements of the eye‑witnesses plus the recovery of pistol and 'Chhurri' at the instance of the petitioner and the matching of the crime empties with the pistol supported by motive and medical evidence were sufficient and conviction could be safely based on it.

There appears no legal flaw either in the conviction of the petitioner or in the sentence imposed on him and, accordingly, while refusing leave to appeal, we dismiss this petition.

N.H.Q./M‑137/S Leave refused.