1995SCMR1172 (PLP)

Date of hearing: 17th April, 1994. MUHAMMAD RAFIQ TARAR, J: ‑‑Ajab Shafi petitioner seeks leave to appeal from the judgment of a learned Single Judge of the Peshawar High Court dated 22‑12‑1993 whereby his Criminal Appeal No. 155 of 1992 challenging his conviction and sentence of imprisonment for life and a fine of Rs.20,000 under section 302/34 of the P.P.C., was dismissed.

2. The brief facts of the prosecution case are that on 11‑5‑1989 at 6‑30 a.m. Sher Ali complainant and his brother Ismail were going to their land for removing wheat crop. When they reached near the house of Zar Jamil their mother gave them a call that their enemies were approaching and they should protect themselves. On this the complainant looked towards his right and saw the petitioner and his uncle acquitted accused Sahib Jan coming towards them. Sahib Jan exhorted the petitioner to fire upon which he fired his rifle at Ismail as a result of which he died at the spot. A land dispute between the parties was stated to be the motive for the offence. The occurrence was witnessed by Sher Ali complainant and his mother Mst. Sifat Jana. The case was registered on the same day at 2‑45 p.m. on the report of Shert Ali at Police Station Sabirabad.

3. After the occurrence the petitioner was not traceable. He was declared a proclaimed offender. He appeared at the police station on 7‑1‑1992 and a supplementary challan was submitted against him. Prior to that his co -accused Sahib Jan who had been arrested earlier was tried and acquitted.

4. In support of its case the prosecution examined ten witnesses in all and its mainstay was the testimony of Sher Ali and Mst. Sift Jana who furnished the ocular account of the occurrence. The prosecution also relied on the medical evidence and the abscondence of the petitioner. The petitioner pleaded not guilty to the charge and denied the prosecution's allegation against him. He maintained that "during the alleged days of occurrence" he was not present in the village and question of his firing at the deceased could not arise. He denied having absconded after the occurrence and came up with the version that he had "gone towards Punjab" to earn his‑livelihood quite before the alleged occurrence and on return to village when he learnt about the charge against him he voluntarily surrendered before the local police.

5. Relying on the prosecution evidence the learned trial Judge convicted and sentenced the petitioner as mentioned above. His findings were affirmed by the High Court in appeal.

6. Learned counsel for the petitioner contends that the Courts below have failed to appreciate the evidence in its true perspective and in any case the uncorroborated evidence of two interested witnesses was not sufficient to warrant the conviction.

7. We have considered the submissions made at the bar in the light of evidence available on the record. Sher Ali complainant and Mst. Sifat Jana have supported the prosecution version and their statements are consistent on the main features of the case. It is true that there was litigation between the parties over agricultural produce but that would hardly pursuade the close relatives of the deceased to substitute the petitioner for the real culprit. The occurrence took place in the broad daylight when there was no possibility of mistaken identification. The ocular evidence finds substantial corroboration from the abscondence of the petitioner. He remained a fugitive from law almost for about three years. His bald statement that he had gone towards' Punjab for labour and had learnt about the charge on return to his own village cannot be accepted. His real uncle had faced the trial for this very incident and it is not possible to believe that he had no knowledge about it. He surrendered at the police station only after his uncle was acquitted.

8. Having gone through the record with care we find that the Courts below have, on a detailed scrutiny of evidence on the record, accepted the ocular account for valid reasons. There is no substance in this petition and the same is dismissed. N.H.Q./A‑1237/S Leave refused.