1969 PLP 94 (SCMR)

Syed Masoom Shah, Advocate Supreme Court instructed by Muhammad Nazar Khan, Senior Attorney for Petitioners. Nemo for the State. Date of hearing : 22nd October 1968. FAZLE‑AKBAR,. C. J.‑The petitioners, Mokharai and Khan Sher, were tried along with one, Qamar Zaman, under section 302/307/34 of the Pakistan Penal Code for the murder of e their co‑villager, Himat Khan, and for attempted murder of Hayat Khan, by Additional Sessions Judge, Mardan. He convicted them under section 302/34 of the Pakistan Penal Code and sentenced each of them to transportation for life. He also convicted them under section 325/34 of the Penal Code and sentenced each of them to rigorous imprisonment for four years. On appeal, the High Court acquitted Qamar Zaman, but main tained the convictions and sentences of the other two, namely, Mokharai and Khan Sher. They now seek special leave to appeal to this Court. The prosecution case was that on the evening of 1‑3‑1965 when Himat Khan and his brother, Hayat Khan, were returning to their home, they were attacked by Mokharai, Khan Sher and. Qamar Zaman near the hujra of one, Mian Syed Qamash. Mokharai and Khan Sher were armed with a double and single barrelled shotguns and Qamar Zaman with a country‑made pistol. They altogether fired four shots from their respective weapons at Himat Khan and he fell down on the ground. Hayat Khan then jumped over the body of his brother to protect him from further harm and the assailants beat him with the butt‑ends of their respective arms. Umar Khan and Shamsul Qamar came from a nearby mosque on hearing the alarm raised by Hayat Khan and on seeing them the assailants ran away from the place. Himat Khan succumbed to the injuries at the spot. The prosecution case rested on the evidence of three eye witnesses; Hayat Khan, Umar Khan and Shamsul Qamar. All these witnesses are related to the deceased. Further, there is evidence that Hayat Khan and Himat Khan were not on good terms with the accused party. Their evidence, however, is not corroborated by any independent evidence or circumstances in this case: The learned counsel has contended that it will not be safe to maintain the convictions of these petitioners on the evidence of these interested witnesses alone in the absence of any independent corroboration, and more so when their evidence has been disbelieved with regard to the participation of Qamar Zaman in the crime. We think the above point requires consideration. We, accordingly, grant leave to appeal as prayed. Leave granted.