1968 P Cr (PLP)

(b) Evidence Act (I of 1872), S. 118-Child witness Bo y of 12 (much less of 15) cannot be said to be of tender age. Mian Sher Alam, Advocate Supreme Court instructed by Masood Akhtar Sheikh, Attorney for Petitioner. Nemo for the State. Date of hearing : 13th March 1968. MUHAMMAD YAQUB ALI, J.-The petitioner has been con victed under section 304(11), P. P. C. and sentenced to five years' rigorous imprisonment for causing the death of his co-villager Muhammad Iqbal with khunda blows on his head. Conviction is supported by the direct testimony of two younger brothers of the deceased who happened to accompany him at the time of occurrence, namely, Altaf Hussain 'and LAI Hussain, P. Ws. Neither witness bad any enmity to falsely implicate the petitioner and both the trial Judge and the High Court have placed reliance on their testimony. Ws see no reason to differ with their appraisal. It was urged that Altaf Hussain and Lal Hussain being the brothers of the deceased were interested witnesses and in the absence of any corroborative circumstance it was not safe to rely on them. The contention is untenable as we do not consider mere relationship of a witness with the deceased to be a sufficient ground to discredit him. It was next urged that Muhammad Abbas brother of the petitioner was acquitted by the trial Judge which cast doubt on the evidence of the two eye-witnesses. The contention is equally without substance for although there were two injuries on the person of the deceased the eye-witnesses instead of attributing one injury to either of them deposed that both were caused by the petitioner while Muhammad Abbas only instigated him to attack the deceased. Lastly it was urged that Altaf Hussain and Lal Hussain aged 15 and 12 years respectively were of tender age and the trial Judge had failed to follow the procedure laid down in section 118 of the Evidence Act in recording their testimony. The contention is wholly devoid of force for a boy of 12 much B less a boy of 15 cannot be said to be of tender age within section

118. We thus see no ground to interfere with the conviction and sentence of the petitioner and dismiss the petition. Leave refused.