1973 PLP 215 (SCMR)

Nemo for the State. Date of hearing: 17th April 1973. HAMOODUR RAHMAN, C. J.‑The petitioner was tried along with his brother. Nurul Haq, under section 302/324/326/34, P. P. C. on the allegation that they alongwith absconder Abdul Khaliq had in furtherance of their common intention committed the murder of Yusuf deceased and caused injuries to his father, Saadullah Jan, and his mother, Taj Bibi, with dagger blows, on the 2nd of April 1971, at about 7‑00 a.m. just outside the house of the deceased. The trial Court convicted them both on all counts and sentenced each of them to transportation for life on the charge of murder. On appeal the High Court at Peshawar gave the benefit of doubt to Nurul Haq and acquitted him of all the charges, but maintained the conviction of the petitioner alone for the murder of Yusuf and convicted him under section 302, P. P. C. He too was, however, acquitted of the charges under sections 324 and 326 read with section 34, P. P. C. for the injuries sad to have been caused to Saadullah Jan and Mst. Taj Bibi., The petition now seeks special leave to appeal and it is contended on his behalf that the conviction based on the ocular testimony of Saadullah Jan and Taj Bibi, close relations of the deceased, who had been disbelieved with regard to the implication of Nurul Haq as also with regard to the injuries on their own persons, was against the weight of evidence and, therefore, not sustainable. Learned counsel has also drawn our attention to the fact that Taj Bibi in her evidence had admitted that Sher Afzal, the maternal uncle of the deceased, who too posed as an eye witness but was disbelieved, had of his own accord said that he would charge the petitioner and his brother, Nurul Haq, and maintained that this clearly suggested that the petitioner had been falsely implicated at the suggestion of Sher Afzal whose presence at the spot has not been accepted by the High Court. There is nothing on the record to show that Sher Afaal had any enmity with the petitioner or his brothers or that he had any particular reason to falsely implicate then. Even so, out of abundant caution, the High Court has not relied on the evidence of Sher Afzal, because, his presence at the spot was considered doubtful. Benefit of doubt was also given to Nurul Haq, because, Mst. Taj Bibi had in cross‑examination stated that she had not seen any weapon in the hands of Nurul Haq and that she and her husband were injured when they tried to apprehend the absconder Abdul Khaliq, another brother of the petitioner. From this the High Court felt that the chances of the injuries on Saadullah Jan and Taj Bibi having been caused by Abdul Khaliq and not by Nurul Haq or the petitioner had not been completely excluded. It appears to us that the High Court has given all the benefit that could be ‑given to the accused persons of the inconsistencies between the evidence of Saaduilah Jan and Taj Bibi but this does not mean that because their evidence has not been accepted in some respects, their evidence cannot be relied upon at all even in other respects. This Court has not accepted the principle of fulsus to uno falsus in omnibus and, as such, all the questions that have now been re‑agitated by the learned counsel appearing in support of this petition go merely to the appreciation of evidence which is not a sufficient, ground for granting leave. No principle or rule regarding the appreciation of evidence has been disregarded by the Courts below nor has any grave injustice been caused to the petitioner in this case. He has, in our opinion, been rightly convicted and appropriately sentenced. This petition is, accordingly, dismissed. Leave refused.