1988 PLP 1822 (SCMR)

S.A.NUSRAT, J.‑‑The petitioner seeks leave to appeal from the judgment of the High Court of Baluchistan, Queta, whereby his appeal against the judgment of the Additional Sessions Judge, Quetta convicting him under section 302/34 P.P.C. and awarding sentence of life imprisonment; was dismissed. 2. Complainant Abdullah had lodged the report on 25‑8‑1985 at 10.20 a.m. at Police Station Gawalmandi alleging that on that morning at Cattle Peri, Niazullah, absconding accused had caught hold of his deceased brother Suba Khan while the petitioner Abdul Qadir had inflicted dagger injuries resulting in his death in the Civil Hospital, Quetta. According to the prosecution, the incident was witnessed by four eye‑witnesses, Abdul Rehman, Abdullah, Muhammad Yousuf and Isa Khan. Niazullah had absconded. The petitioner was arrested by witness Hussain Shah alongwith blood‑stained dagger. The statement of Abdullah was recorded by the S.H.O. in the hospital, on the basis of which formal F.I. R. was registered at the police station. The prosecution examined two eye‑witnesses namely Abdullah and Abdul Rehman, who corroborated the occurrence on all material points. Besides, the prosecution also produced knife Ex.PW.3, which according to the statement of PW.4 Hussain Shah, was in the hand of the petitioner when he was arrested the said knife was taken into possession from PW.4 by the S.H.O. in the presence of P.Ws. 5 and 6. The defence could not dispute the statements of P.Ws.5 and 6 regarding taking possession of knife by constable Hussain Shah. The presence of the eye‑witnesses on the occasion was not denied even by the defence witnesses produced by the petitioner. On appraisal of the entire evidence brought on the record by the prosecution, the petitioner was convicted by the learned trial Court and sentenced to life imprisonment and a fine of Rs.10,000 or in default, to suffer further R.I. for two years. In appeal, the entire 'evidence was reappraised by the learned High Court and the findings of the learned trial Court were affirmed and the appeal of the petitioner was dismissed as per impugned judgment. 3. It was contended by the learned counsel for the petitioner, as was done before the learned Courts below, that the conviction could not be based on the testimony of the two eye‑witnesses, who were closely related to the deceased while the prosecution had failed to examine the other two independent eye‑witnesses namely Muhammad Yousuf and Isa Khan, whose names were mentioned in the F.I.R. At the hearing before the High Court, an application was moved on behalf of the petitioner for examining Muhammad Yousuf and Isa Khan. The application was supported by the affidavits of said two witnesses, who had given, a lie to the prosecution case. The request was turned down by the learned High Court. Much stress was laid by the learned counsel for the petitioner that the evidence of the said two witnesses was necessary and the learned High Court should not have declined the application for additional evidence. The learned High Court found that on the basis of the affidavits of the two witnesses, it was clear that they were under the influence of the petitioner and kept away so that they may not be examined leaving thereby a lacuna in the record of the case. The power to examine additional evidence as( provided in section 428 of the Cr.P.C., is dependent upon the satisfaction of the appellate Court. However, from the record we find that the prosecution has not given up the said witnesses at all. On the contrary, in spite of issuance of process, the said witnesses were not available and the Court itself declined to wait any further for recording their evidence. In this connection, the learned trial Court examined Rab Nawaz, process server, who had clearly stated that there was no probability of the said witnesses being traced out in near future. Be that as it may, no useful purpose would have been served even if they were examined because, in any case, they would have stood in the nature of hostile witnesses to the prosecution case. 4. We do not find any fault in such appraisal of evidence and no rule or principle of law governing appreciation of evidence in a criminal case is shown to have been violated. In the circumstances, the petition merits no consideration and is dismissed. M . Y . H . /A‑295/S Petition dismissed.