1. ' ANWARUL HAQ, C J.-The petitioner Sabz Ali was convicted by the learned Additional Sessions Judge, Peshawar, for the murder of Noor Rehman, and sentenced to death. A Division Bench of the Peshawar High Court has confirmed the sentence by its order dated the 23rd of October, 1977. He now seeks leave to appeal.
2. ' The case set up by the prosecution against the petitioner was that he was annoyed with the deceased for the reason that the latter had divorced the petitioner's sister Mst. Kishwara about four years prior to the occurrence, and taken another wife. For this reason the petitioner killed the deceased by firing at him at about 7-30 p.m. On the 21st of July, 1975, when the deceased was saying his prayers in the village mosque along with others, including his brother Haji Nekzada (P. W.
3. 9) and his brother-in-law Abdur Rashid (P. W. 10). The matter was reported at Police Station Daudzai, at a distance of 16 miles, at 10-00 p. m. By Haji Nekzada. The petitioner was said to have absconded after the incident and was arrested much later by the Sub-Inspector concerned. At the trial he denied the allegations and asserted that he had been falsely implicated due to enmity.
4. ' Both the Courts below have believed the ocular evidence of Haji Nekzada and Abdur Rashid, and they have also accepted the presence of motive on the part of the petitioner, as well as the incriminating fact that he absconded after the incident. His brother Muhammad Ali, who was also accused in the case, was acquitted, whereas his third brother Shamshul-Qamr is still absconding.
5. The allegations against these two persons were that they had stood guard at the entrance of the mosque at the relevant time and that they were also armed with Topaks.
6. Leave to appeal is sought on the grounds that both the eye-witnesses are interested witnesses, being closely related to the deceased, and, therefore, their evidence should not have been accepted without corroboration ; that, in any case, there are serious contradictions between the First Information Report and the evidence given by Haji Nekzada at the trial, and also between the accounts given by both these witnesses in evidence and that, in fact, it is a case of no evidence.
7. ' After perusing the evidence brought on the record at the trial and considering the submissions made by the learned counsel, we have formed the view that the petitioner has been rightly convicted and sentenced.
8. ' It is true that both the witnesses are closely related to the deceased, but we have not been able to discover any reason which could induce them to falsely implicate the petitioner. It will be seen that the grievance. If any, lay only on the part of the petitioner, as his sister had been divorced by the deceased but the deceased and his relations had no grievance of any kind against the petitioner.
9. There is nothing on the record to suggest that the two witnesses were, in any way, involved in the matrimonial dispute between the deceased and his wife. This is, therefore, not a case where the eye-witnesses can be described as interested witnesses so as to require corroboration.
10. ' We regret we are not able to see any material contradiction between the version of the incident as contained in the F.
1. R. And the details given at the trial by Haji Nekzada. On both these occasions he has consistently stated that his deceased brother was standing between himself on the one side and the other witness Abdur Rashid on the other, and that he saw the assailant Sabz Ali after the shot had been fired, and at that time the petitioner was leaving the mosque with his Topak. It is correct that the evidence of Haji Nekzada seems to give the impression that the deceased was hit when he was in a standing position, whereas the evidence of Abdur Rashid makes it appear that at the relevant time the congregation was in a sitting posture between two Sijdas. But this witness is also consistent in saying that immediately after the shot was fired, he saw the petitioner Sabz All leaving the mosque with a Topak in his hand. It seems to us, therefore, that the apparent discrepancy as to the position of the deceased at the time he received the fatal injury, does not, in any manner, benefit the petitioner, as in either case he is named as the assailant who had fired the shot which hit the deceased.
11. ' The presence of motive does not seem to be seriously contested by the defence, nor is the fact that the petitioner absconded after the incident. In the circumstances, we cannot accept the argument that there is no reliable evidence to connect the petitioner with the crime alleged against him.
12. ' This being a case of deliberate murder, the sentence of death was amply justified. As a result, the petition fails and is hereby dismissed.