' KARAM ELAHEE CHAUHAN, J.-Petitioner Mabarak Ali was tried by the learned Additional Sessions Judge, Peshawar, for the murder of Ishfaq Abmad alias Gulo and having been found guilty was convicted under section 302, P. P. C. And was awarded rigorous imprisonment for life and a fine of Rs, 3,000 or in lieu thereof to rigorous imprisonment for six months. He was also directed to pay compensation of Rs, 3,000 to the heirs of the deceased or to undergo further rigorous imprisonment for six months. The order of the learned Additional Sessions Judge is dated 7-7-1977.
2. The petitioner filed an appeal being Criminal Appeal No, 105 of 1977 but without any success as the :same was dismissed by a learned Division Bench of the Peshawar High Court dated 10-4-1978.
At this place it may be mentioned that Abdur Rehman father of the deceased had filed a Cross Revision Petition No, 66/1978 for enhancement of the sentence of the accused to death but the same was also rejected by the High Court by the same judgment.
3. The petitioner has now filed Criminal Petition for Special Leave to Appeal No 46-P/1978 whereas Abdur Rehman aforesaid has filed Criminal Petition for Special Leave to Appeal No, 64-P/1978 claiming the enhancement of the sentence of the petitioner (Mubarak Ali). The present order will disposed of both these matters.
4: The facts of the prosecution case are that on 12-2-1974 Ishfaq Ahmad atlas Gulo (deceased) was sitting in the house of his father (Abdur Rehman), when Mubarak Ali accused (petitioner) who had friendly relations with the deceased came in a car and asked him to accompany him\to Gulabad where he had to offer some condolence. Consequently, the deceased, and the accused petitioner, sat in the front seat of the car, alongwith the driver Nadar Khan, whereas the back seat was occupied by Shah Jehan (P. W. 17) and Nazir a house servant of the deceased. When the car reached near Gulabad on Charsadda Road, an altercation took place between the accused and the deceased on which the deceased was fired at by the petitioner with a pistol and was then thrown out of the car by him on the road side. The car was turned back and near a place known as Nagoman, Shah Jehan (P. W. 17) and Nazir (the domestic servant of deceased) were made to get down. They boarded a bus and came to Peshawar and disclosed the occurrence to the father of the deceased who in the company of Shah Jehan, Nazir and S. Iqbal Shah (an Advocate) went to the Police Station "C" Division and, lodged the report Exh. P. A./1 which was recorded by Jehangir Khan, S. H.
0. The prosecution evidence in the case, consisted of-
(a) the statement of Shah Jehan (P. W. 17)' (eye-witness). Here it may be mentioned that the other eye-witness Nazir (domestic servant of the deceased) was abandoned and the third eye-witness Nadar Khan, driver was murdered later on and therefore could not appear as a witness in the trial;
(b) the recovery of the dead body from the place of occurrence;
(c) the medical evidence; and
(d) the evidence regarding the abscondence of the accused-petitioner from 12-2-1974 to 30-8- 1975,
5. The Courts below have believed the statement of Shah Jehan (P. W. 17) who supported the prosecution case in all material respects, ' The recovery of the dead body at the place of occurrence corroborated his statement. Further corroboration was available from the medical evidence which showed that the deceased had died as a result of fire-arm injuries, and coupled with this was the evidence of the abscondence of the petitioner which proved his guilty conduct and which had not been satisfactorily explained by him.
6. Learned counsel argued that the sole eye-witness in the case was Shah Jehan (P. W. 17) and his statement was full of material contradictions and inherent fallacies. For the purpose of establishing his point, he requested us to send for the record. The request was acceded to and the record was called for. The learned counsel took us through the record and particularly the deposition of Shah Jehan (P. W. 17). We must say that we found no such thing which could discredit the testimony of the witness. It is to be noticed that Shah Jehan is an independent witness and he has no enmity with the accused. The dead body was recovered from the place of occurrence on his pointing out which corroborated his statement. Learned counsel argued that he should- not be relied upon because he was a tenant of the father of the deceased. He also submitted that it has not been brought on the record as to which was the breavement where and in which family or house to condole which the deceased had been taken by the petitioner. He also argued that the story of dropping an eye-witness in an alleged rude form on a highway in wilderness was fallacious because that would tantamount to leaving and providing a sort of proof against one's ownself. He next submitted that it was not clear as to from which side of the car the deceased was own out on the road. All these points pertain to the appreciation of evidence which has thoroughly been gone into by the two Courts below. After attending to all the facts and circumstances of the case the evidence of Shah Jehan (P. W. 17) was considered as trustworthy and we find no reasons t disagree with the aforesaid two Courts on the subject. It is clearly contained in the statement of Shah Jehan (P. W. 17) that the accused had fired on the deceased while sitting in the car. The objections raised by the learned counsel stand mostly answered in the statement of the witness himself. The accused/petitioner gave no satisfactory explanation of his abscondence which led to initiation of regular proceedings against him in that respect. After hearing the learned counsel at length and going through the record, we must state, that he has not been able to point out D violation of any principle of law or of natural justice in the matter of appreciation of evidence or otherwise, so as to warrant interference by this Court.
7. The result is that Petition No, 46-P/78 has no merit and is dismissed.
7-A. As regards the Criminal Petition for Special Leave to Appeal No, 64=P of 1978 filed by the father of the deceased, it is barred by 95 days and there is no reason to condone this delay. Even otherwise the Courts below have given cogent reasons for not inflicting the capital punishment on the accused. In this respect we may make reference only to para. 10 of the High Court judgment which reads as follows:- "The question of sentence would not bother us any more in that the occurrence had taken place over an altercation the nature, of which has not been given, between the deceased and the appellant nor any motive has been advanced for the delict, therefore, mitigating circumstances exist and the learned trial Court has rightly sentenced the appellant and needs no interference by this Court."
' The reasons aforesaid- are in no way contrary to the law relevant on the subject. The result is that this petition also has no substance and is dismissed both on limitation as well as merits.