1968 SCMR 399 (PLP)

FAZLE-AKBAR, J.-Four persons, Wahidu, Sajjan, Sarang and Miandad, were sent up for trial for the murder of one, Ahmad. The Sessions Judge convicted Wahidu, Sajjan and Sarang under section 302 read with section 34 of the Pakistan. Penal Code and sentenced each of them to death and to a fine of Rs.

500. He, however, acquitted Miandad. On appeal and reference, the High Court while confirming their sentence of death set aside the sentence of fine. According to the prosecution, on the 29th September 1965, at 10 a.m., when Ahmad, alone with his nephew Sataru, was returning from Malguzar Khanki after purchasing some sundry articles like tobacco, salt and chillies, he was attacked near Frontier Rajwah by the four accused persons, namely, Wahidu, Sajjan, Sarang and Miandad, who were armed with hatchets, and was fatally injured. There were two eye-witnesses in this case, namely, Staru who was with the deceased and Ilahi Bux Jakhrani whose house is close to the place of occurrence. The trial Judge bought it unsafe to accept the evidence of Sataru. He, however relying on the evidence of Ilahi Bux Jakhrani convicted and sentenced these three petitioners. As Ilahi Bux in his statement under section 164, Cr. P. C. had not named Miandad the Sessions Judge gave him benefit of doubt. The learned Judges of High Court found the evidence of both the eye-witnesses fully reliable and therefore they upheld the conviction of Wahidu, Sajjan and Sarang. The learned Counsel for the petitioners has contended that for good and sufficient reasons the trial Judge was unable to take into consideration the evidence of Sataru and hence the High Court was not justified in relying on his evidence. The High Court has rightly pointed out that there was "no good basis for the opinion that Sataru P. W.'s evidence has to be ruled out of consideration". In our opinion, the discrepancies in his evidence, on which the Sessions Judge relied, were not such which could materially affect the value of his evidence. The learned Counsel then contended that as Ilahi Bux attempt ed to implicate Miandad in this case, his evidence should have been discarded by the Courts below. The occurrence took place in broad day-light. Ilahi Bux, who is a completely disinterested witness, lives near the scene of occurrence. Simply because he failed to name the fourth accused, Miandad, in his 164, Cr. P.C. statement, it cannot be said that he is not a truthful witness. The learned Counsel has been unable to point out any .other circumstance which can throw any suspicion on his testimony. We are fully satisfied that his evidence in this case is unimpeach able. In addition, there is evidence of recovery of blood-stained hatchet from Sajjan and of blood-stained ajrak and banyan from Wahidu petitioner, to support the direct evidence and as to which the learned Counsel has not been able to advance any reason why it should be disbelieved. He has, however, contended that as no recovery was made from Sarang, he was entitled to get the ' benefit of doubt. In view of the direct evidence against him we do not see any reason to doubt his participation in the crime. We are, therefore, of the opinion that all these three petitioners have been rightly convicted and sentenced. We accordingly dismiss this petition. Petition dismissed.