' NASIR-UL-MULK, J.--- The petitioner, Qasim Jan, was convicted by the Additional Sessions Judge, Chakdara, on 11-12-2004, under section 302(b), P.P.C. For the murder of his brother Rehmani Jan and sentenced to death and directed to pay compensation of Rs,1,00,000 to the legal heirs of the deceased. The conviction and sentence were confirmed by the Peshawar High Court on 27-4-2006 and simultaneously the petitioner's appeal was dismissed. By this petition for leave to appeal filed from jail he has assailed his conviction and sentence.
2. The murder was reported by Mian Jan, father of the petitioner, and the deceased, on 21-5-2003, the day of the incident took place at 8-00 a.m. The complainant had alleged that he along with his son Rehmani Jan and two wives of the latter, Mst. Guncha and Mehraj Zamena, were busy harvesting wheat crop, when the petitioner appeared on the scene and resorted to firing with his pistol at Rehmani Jan, who was hit on the chest, of which he was killed instantaneously. Motive for the incident given by the complainant was that Rehmani Jan deceased found Charas in his bag when he went to Saudi Arabia and he suspected the petitioner to have clandestinely put the same in his bags. The complainant, Mst. Guncha and Sher Alam Khan, son of the deceased, appeared as eye-witness. Sher Alam Khan was not named in the F. I. R.
3. Mr. Muhammad Zaman Bhatti, Advocate Supreme Court appeared for the petitioner and Sh.
Mehmood Ahmad, Advocate Supreme Court represented the State. The learned counsel for the petitioner contended that it was an unwitnessed crime and neither the complainant nor the wives of the deceased were present at the scene of occurrence when the murder took place. To substantiate his point the learned counsel submitted that there was contradictions between the ocular testimony and the medical evidence. That whereas the complainant alleged the firing of single shot by the accused hitting the deceased in the chest the medical evidence shows receipt of five entries wounds and that too not confined to chest. He further referred to various parts of the ocular testimony to point out contradictions therein. He next submitted that admittedly P.W. Mst.
Guncha, wife of the deceased, had given birth to a child three weeks prior to the occurrence and therefore, her presence in the fields participating in harvesting of crop was unnatural. The learned counsel also placed reliance upon the testimony' of the two defence witnesses Mst. Meraja and Mst. Tajmina relatives of the complainant who had deposed that Mst. Guncha was in her own house when the, murder was committed.
4: The complainant, father of the petitioner as well as, the deceased, had stated in the F.I.R. That the fire of the petitioner hit the deceased in the chest He did not specify as to whether it was a single or multiple shots. He reiterated this statement at the trial but it was in the cross-examination that he furnished further details by saying that the petitioner had fired 6/7 shots. To another question in the cross-examination, he responded by saying that after the first shot the deceased fell to the ground whereafter the petitioner again fired at him. Thus, the confusion as to the number of shots was clarified by the complainant in the cross-examination. The multiple injuries found on the person of the deceased by the doctor therefore, stood explained. The main contention of the learned counsel for the petitioner thus, fails.
5. The learned counsel had gone through the entire statements of the complainant as well as Mst.
Guncha and we do not find much contradictions, muchless glaring, in their testimony so as to cast doubt on their credibility. Mst. Guncha was thoroughly cross-examined and coming from rural area of District Dir, she frankly admitted that she could not tell the distance between different places and the timing of the different events of the day as she does not wear a watch. Such deposition was quite natural considering the witness's background. The testimony of the third witness Sher Alam Khan son of the deceased was not taken into serious consideration by the Peshawar High Court on the ground that his name was not mentioned in the F.I.R. We also need not rely upon his statement for the same reason. The testimony of the complainant and that of Mst. Guncha sufficiently establishes the prosecution case. In the circumstances when the complainant is the father of the petitioner and there is no suggestion whatsoever of his deposing falsely, his sole testimony would have been sufficient to sustain the petitioner's conviction. Further support however, comes from the matching of the empties secured from the spot with the pistol recovered from the accused. As regards the defence witnesses it may be stated that the deposition by them is not in support of any alibi. They had tried to give a different version of the incident to the extent that Mst. Guncha was in a house and not at the scene of occurrence when the murder took place.
Both these witnesses, Mst. Meraja and Mst. Tajmina, are the first cousins of the petitioner, and naturally of the deceased. Mst. Meraja had in cross-examination admitted that her husband; Mir Agha Jan, had been making arrangements for the petitioner's defence in the present litigation. Mst.
Tajmina admitted that her husband is the brother of Mir Agha Jan, who had brought her to the Court for recording evidence. Admittedly these defence witnesses never appeared before Investigating Officer to give their versions of the incident. In view of their personal interest and the fact that they disclosed their story for the first time at the trial to contradict the prosecution version their testimony is not of much help to the defence.
6. The learned counsel for the petitioner was also unable to point out to any mitigating circumstance for reduction of sentence. We also found none. It- is 'a case the accused killing his own brother and charged for it by, the father.
7. In view of the discussion aforestated we found no merit in this petition. The evidence of the prosecution had been properly appraised by the trial as well as appellate Court. Consequently the petition fails and leave is declined.