MUHAMMAD NAWAZ ABBASI, J.--- This petition seeking leave to appeal has been directed against the judgment, dated 20-7-2005 passed by a Division Bench of High Court of Balochistan, at Sibi, whereby appeal filed by the petitioners against their conviction and sentence of death awarded to them by the learned Sessions Judge, Jaffarabad, vide judgment, dated 31-5-2001 was dismissed and murder reference sent by the trial Court was disposed of accordingly.
2. The facts in small compass in the background, are that on 1-10-1999, on the report lodged by Mir Muhammad, step-father of Khan Muhammad, a case under section 302, P.P.C. Was registered against the petitioners for the allegation of committing murder of Mst. Hanifan Bibi and her husband Muhammad Subhan at Police Station, Dera Allahyar. The occurrence was narrated in the F.I.R. As under:-- "I am waterman in Police Department and reside along with my family at Dera Allah Yar. My daughter Mst. Hanifan, who was married with Muhammad Subhan about 14/15 years age, was also residing with me. Today I, along with my wife Sultana, daughter Mst. Hanifan, son-in-law Muhammad Subhan, and my relatives Sakhi Dina and Hazar Khan while sitting in a room of the house with the door open, were watching T.V., when at about 4-00 p.m., Khair Muhammad son of Saindad, Safdar son of Arbab Lashari residents of Panch Gandhawah armed with T.T. Pistols entered into the room. Subhan was fired at by Safdar whereas Khair Muhammad fired at Mst.
Hanifan and both died at the spot. Sakhi Dina and Hazar Khan mad an attempt to apprehend the accused but they on threats of life, ran away. The motive for the offence was family dispute between Muhammad Subhan and accused persons."
3. Muhammad Qasim, S.-I./S.H.0.(P.W.6) initiating the investigation, secured eight crime-empties of T.T. Pistol and bloodstained earth from two points at the place of occurrence, prepared the inquest report and injury statement of deceased and sent the dead bodies for post-mortem examination.
The crime-empties as per report of Ballistic Expert, were found matched with T.T. Pistols which were used by Khair Muhammad and Muhammad Safdar, petitioners herein, and were recovered on their arrest. The prosecution, in addition to the ocular account furnished by Mir Muhammad (P.W.2) and Sakhi Dina (P.W.3) also placed reliance on the statement of Dr. Muhammad Siddique, Medical Officer, District Headquarter Hospital Dera Allahyar who conducted post-mortem examination of dead bodies, Ghulam Nabi, constable a witness of the recovery of T.T. Pistols from the accused Muhabat Khan, constable, (P.W.5) and Muhammad Qasim, S.-I./S.H.O. (P.W.6) the Investigating Officer. The petitioners in their statements under section 342, Cr.P.C. Denying the allegation in general terms pleaded innocence and neither made a statement on oath nor produce any evidence in defence. Initially, the petitioners having been tried by the Special Court established under Suppression of Terrorist Activities Act, 1975 at Jaffarabad, were convicted and sentenced but in appeal filed by them the High Court while setting aside the conviction and sentence awarded to them, sent their case to the Sessions Judge, Dera Allahyar for retrial without recording the fresh evidence. Learned trial Judge, in the post remand proceedings, having found the petitioners guilty of the charge, convicted and sentenced them as aforesaid which was maintained by the High Court in appeal.
4. The learned counsel for the petitioners at the first instance, contended that since the Special Court had no justification to take cognizance of the matter and try the petitioner, therefore, evidence recorded by the said Court was not admissible as the proceeding before the Special Court, as a whole, stood vitiated therefore, the conviction and sentence awarded to them in the subsequent trial on the basis of evidence recorded by the Special Court, was nullity in law. Learned counsel for the State, without disputing the fact that retrial was ordered by the High Court due to the jurisdictional defect in the trial, submitted that neither the use of the evidence recorded by the Special Court was illegal nor any prejudice was caused to the petitioners on merits, therefore, the objection was unfounded in law.
5. In consequence to the verdict given by the High Court fresh evidence was not required to be recorded in the retrial and the petitioners having accepted the remand order in toto, did not earlier raise any objection at any stage to the admissibility of evidence recorded by the Special Court, the Presiding Officer of which was an Additional Sessions Judge, who having fulfilled all requirements of law, provided full opportunity to the petitioners to cross-examine the witnesses and learned counsel has not been able to point out any procedural defect in recording the evidence by the Special Court, causing any prejudice to the petitioners on the merits or on the ultimate result. This may be pointed out that the Courts established under Suppression of Anti-Terrorist Activities Act, 1975, were competent to try the offence committed with the use of the automatic and semi- automatic weapon and in the present case, the cognizance was taken by the Special Court as T.T.
Pistols were used in the crime, therefore, notwithstanding the jurisdictional defect in the trial, the technical objection regarding the admissibility of the evidence recorded by the Special Court, has no legal force.
6. Learned counsel for the petitioners, except the minor discrepancies, and contradictions, has not been able to point out any material defect or lacuna in the evidence suggesting even a slight doubt regarding the correctness of the prosecution case. The complainant party and the petitioners are closely related inter se and the occurrence took place at the time when the inmates of the house were watching TV therefore, there was no question of mistaken identity. The petitioners armed with T.T. Pistols suddenly entering into the house opened firing as a result of which Mst. Hanifan Bibi and her husband Subhan were hit and died at the spot. There was no serious enmity between the parties and the eye-witnesses have consistently supported prosecution case without any material contradiction or discrepancy and their testimony was also supported by the medical evidence as well as attending circumstances on each material point.
Learned counsel for the petitioners has not been able to satisfy us that either the witnesses were not present at the spot or assailants were not identifiable, and petitioners were substituted for unknown culprits. The contention of the learned counsel that witnesses being closely related to the deceased, were interested and not reliable, was without any substance as mere relationship is not sufficient to hold a witness interested or discard his evidence and in the present case, the accused were also closely related to the witnesses therefore, there would be no chance of false implication or substitution. The conflicting opinion of learned Judges in the High Court regarding the admissibility and reliability of the evidence of recovery which has only corroborative value could not effect the credibility of the ocular account and we having perused the record with the assistance of learned counsel for the parties, have not been able to find out any legal or factual infirmity in the ocular account furnished by the most natural witnesses and their testimony duly supported by the medical evidence, would alone be sufficient to establish charge against the petitioners beyond reasonable doubt. The exclusion of recovery of T.T. Pistol from consideration would have neither any material effect on the culpability of the petitioners nor the evidentiary value of direct evidence of unimpeachable character, would be reduced and consequently, we need not to go into the question regarding the admissibility or reliability of the evidence of recovery of weapon of offence.
7. In the light of foregoing discussion, we have not been able to find out any substance in this petition for interference of this Court and learned counsel of the petitioners also has not been able to point out any mitigating circumstance for lesser punishment. This petition is accordingly dismissed. Leave is refused.