1968 PLP 1392 (SCMR)

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, Peshawar, dated the 23rd November 1967, in Criminal Appeal No. 103 of 1967). -- S. 302‑Mere relationship of eye‑witness with deceased would not render account of incident subject to doubt‑Witness whether should or should not be believed not function of Supreme Court to state‑Special Leave to Appeal refused by Supreme Court. Nemo for the State. JUDGMENT FAZLE‑AKBAR, C. J.‑These three petitioners were convicted under section 302/34 of the Pakistan Penal Code on two counts for double murder and under section 307/34 of the Pakistan Penal Code for attempted murder, by the Sessions Judge, Campbellpur. Muhammad Khan and Mehr Khan were sentenced to death for the murder of Misri, to transportation for life for the murder of Mirbaz and to seven years' rigorous imprisonment for attempted murder of Muhammad Nawaz. The third accused, Zafar, was sentenced to transportation for life for the murders and to seven years' rigorous imprisonment for the attempted murder. On appeal and reference the High Court, while maintaining their convictions and sentences under section 302/34 of the Pakistan Penal Code, altered their convictions under section 307/34 of the of the Pakistan Penal Code to one under section 323 of the Pakistan Penal Code and reduced their sentences to rigorous imprisonment for six months each. They now seek special leave to appeal to this Court. The parties belong to the same village. At about Peshiwela when Misri, Mirbaz, Mst. Mehr Bharai and Muhammad Nawaz were returning to their house from the thrashing floor, the three accused, who were lying in ambush near a graveyard, attacked them. Muhammad Khan and Mehr Khan fired one shot each at Misri and he fell down. Zafar then gave a spear blow on the chest of Mirbaz and he too fell down. Zafar also gave a spear blow on the back of Muhammad Nawaz but he managed to escape from the spot. The assailants then ran away towards the village. Haq Nawaz and Fateh Khan, who were then going to a pond for watering their cattle, saw the incident. As soon as the assailants left, they, went near the injured and found both Misri and Mirbaz dead. Haq Nawaz then went to the Police Station and lodged frst information report at about 6‑45 p.m. Direct evidence was furnished by four eye‑witnesses, namely, Haq Nawaz, Mst. Mehr Bharai, Muhammad Nawaz and Fateh Khan. The two empty shells found at the spot were proved to have been fired from the shotguns which had been recovered at the instance of Muhammad Klan and Mehr Khan. The Courts below, relying on their evidence, have convicted these petitioners. The learned counsel has vehemently criticised the evidence of Haq Nawaz and Mehr Bharai on the ground of their relationship with the deceased. He has also pointed out that Mst. Mohr Bharai was not mentioned as an eye‑witness in the first information report. He has also contended that much reliance should not be placed on the recoveries, because most of the recovery witnesses were related to the deceased. All these points have been fully discussed by the High Court. We agree with the learned Judges of the High Court that mere fact of relationship would not render a witness's account of the incident subject to doubt. In any event, presence of Muhammad Nawaz, who had received injuries in the incident could not be doubted. Further, Fateh Khan was a disinterested witness. We are also not impressed with the criticisms regarding the recoveries. The High Court has, therefore, rightly held that the evidence of eye‑witnesses found support from the recoveries made in the case. In these circumstances, it cannot be said that the view taken by the High Court of the evidence against these petitioners is either unwarranted or opposed to any principle or rule governing appreciation of evidence. We, therefore, do not find sufficient reasons for re‑appraisal of the evidence in this case. It is not for this Court to say whether a witness should or should not be believed. For these reasons, we hold that these petitioners have been rightly convicted and sentenced. This petition is, therefore, dismissed. Leave refused.