1978 PLP 128 (SCMR)

DORAB PATEL, J.‑The petitioner was convicted by the Sessions judge, Mardan for the murder of Mst. Ajab Sultan on 23‑7‑1973 in village Babozai and sentenced to death. His appeal against his conviction and sentence was heard by the Peshawar High Court with the reference from tie Sessions Court, and as the High Court dismissed his appeal and confirmed the sentence of death, the petitioner has filed this petition for leave. The murder was witnessed, according to tile prosecution, by Faqir Shah, the real son of the deceased. Mobin sad Muhammad Hussain and the motive for the crime was that the petitioner was annoyed with the deceased because his father bad transferred some property to her in lieu of her downer. In order to prove its case, the prosecution examined Faqir Shah but not Muhammad Hussain. Faqir Shah said is his evidence that on to day of the occurrence his mother wanted to go to village Katti Garhi therefore, be accompanied by Mobin and Mubam1ndd Hussain, was taking her to that village at about 9:00 A.M. on 23‑7‑1973, About one furlong from their house, the petitioner and his cousin. Said Wali Stab, suddenly appeared on the read armed with gums. They wed standing on the right side of the road and be (the witness) was walking few steps behind his mother. Next, according to the witness, Said Wali Shah fired a shot at his mother and then the petitioner fired another a4ot. Mst. Ajab Sultan was bit by one of the shots and later succumbed to her injuries. The petitioner and Said Wall Shah ran away, and the petitioner gent and lodged the F. I. R. which was recorded within fifteen minutes o f the occurrence. The prosecution also examined Mobin as an eye‑witness of the occurrence but Mobin's name was not mentioned as an eye‑witness in the detailed P. I. R. lodged by Faqir Shah Therefore, the Sessions Court held that Mobin bad not seen this occurrence and it would appear that in coming to this conclusion, it also took into account the fact that Mobin ass a relation of the witness. The prosecution also produced the usual medical evidence and it would appear that tire petitioner was apprehended about three months after the occurrence. However, the other accused was never arrested awe died whilst be was absconding. Learned counsel has not supplied us a copy of the Sessions Court s judgment but it would appear from the judgment of the High Court that in convicting the petitioner the Session Court had relied on Faqir Shah s evidence because it wag of that view that it was corroborated by the medical evidence and the evidence of the alleged abacondenoe of the petitioner. Therefore, the petitioner s cast in the High Court was that the Sessions Court had erred in relying on Faqir Shah's evidence. But in repelling this contention, the High Court pointed out that Faqir Shah given a detailed description of the occurrence in the F. I. R. which has been lodged very promptly, and that this detailed description of the occurrence was consistent both with the witness's evidence in the, Sessions Court and with the medical evidence. The High Court also observed that the ocular evidence was supported by evidence of the recoveries at type place of occurrence and in these circumstances, it held that Faqir Shah was a witness of truth and that his evidence was corroborated by the circumstantial evidence. We see no error of law whatsoever in the reasoning of the High Court and learned counsel bas nit been able to refer us to any evidence which has been ignored by the High Court or misread by the High Court. He, however, submitted that as the road on which the deceased wag killed went through sugarcane fields, the assailant would not have taken the risk of coming out of the sugar‑cane fields and firing at the deceased. According to learned counsel a rational assailant would have concealed himself behind the sugarcane and run away after firing, and as the petitioner was alleged to have fired without any attempt to conceal himself behind the sugarcane fields, the submission was that Faqir Shah had given false evidence. The submission relates to a question of fact and does not merit examination the short ground that the petitioner had failed to cross‑examine Faqir Shah on this allegation. The view taken in the judgment under appeal is amply supported by evidence and we see no error of law whatsoever in it. The petition is without merit and is dismissed. Petition dismissed.