1. ABDUL KADIR SHAIKH, J.-This appeal, by special leave, is from Amir Gut who has been awarded death sentence under section 302/34, P. P. C. For having caused double murders of Israfuddin and his son Itbarud Din, and in addition has been sentenced to seven years R. I. And a fine of Rs.2,000. In default to further undergo R. I. For two years, under section 307/34, P. P. C. For having made murderous assault on Naeem Khan. The jail sentence has, however, been directed to run concurrently in case the death sentence is commuted, and fine if realised has been ordered to be paid to the heirs of the deceased, as compensation. The facts shortly stated are as follows:--- On the fateful day I e. 12-9-1974, at about 12-30 p. m., Azim Khan had headache and was lying on a cot in his hujra when Shamroz came there along with Amir Gut appellant. Shamroz entreated Amir Gut that he should not resort to violence with the complainant party on account of a trivial dispute over share of water-supply, and that he would intervene and get the matter settled amicably.
2. During the course of this conversation, Islamud Din and his brother Sher Bahadur, nephews of Amir Gut, came there, respectively armed with S. B. Shot-gun and a tamancha. Amir Gut was already carrying a tamacha, and all the three then rushed out of the hujra. Soon after their departure Azim Khan heard reports of gun fire and saw Itbarud Din running towards the nearby mosque. Amir Gut followed Itbarud Din and fired his weapon with the result that the victim Itbarud Din was injured. By this time Isrefud Din, father of Itbarud Din, and his wife Most. Sibi Roshana reached the spot and Israfud Din shouted at Amir Gut that he had ruined them by killing their son. Amir Gut thereupon asked his nephews to shoot upon which lslamud Din fired at Israfud Din and his shot hit Naeem Shah who was also present there. Amir Gut and Sher Bahadur also simultaneously fired at Israfud Din and Itbarud Din with the result that Israfud Din died on the spot. His body and the injured Itbarud Din were then taken on cots to the police station where Naeem Shah Edged F. I. R. At 2-30 p. m. On the same day. The injured ltbarud Din also, however, died on the way to the police station.
3. The trial of the cast; proceeded against Amir Gut accused only, as the co-accused Islam ud Din and Sher Bahadnr could riot be arrested and they were declared as absconders. The prosecution sought to prove the charges against the accused through the ocular testimony of three witnesses Naeem Shah, Azim Khan and Bibl Roshana. Naeem Shah died before the trial begun in the Sessions Court, leis statement made during the committal enquiry was therefore brought on record under the provisions of section 33 of the Evidence Act. The version of incident given by all these three witnesses was on the same lines as stated earlier. Mst. Bibi Roshana, widow of Israfud Din deceased, is the real sister of Amir Gul accused and she fully supported the prosecution case. P. W.
4. Azim Khan is not related to complainant party, on the contrary he is related to the accused party and he also fully supported the prosecution case that the petitioner and his two nephews, Islamud Din and Bahadur, had caused the murders of Itbarud Din and Israfud Din and in the process Naeem Shah was also injured. The Sessions Judge, Peshawer who tried the case believed these witnesses and held the accused guilty of the charges levelled against him, and Peshawar High Court on appeal at the instance of the convict and also in confirmation proceedings, on detailed examination of the case upheld the view of the learned Sessions Judge and dismissed the appeal.
5. Mr. Muhammad Zahoorul Haq, learned counsel for the appellant submits that implicit reliance should not be placed on the two P. Ws. Naeem Shah and Azim Khan as they were on inimical terms with the accused and also on the third witness. Mst. Bibi Roshana because she is the widow of Israfud Din deceased, and under the circumstances some other evidence to serve as independent corroboration of their statements is necessary in order to hold the serious charge of murder levelled against the accused stands proved beyond any shadow of doubt. In this connection learned counsel also added that the prosecution case is even otherwise suspicious for the reason that the only independent and respectable witness, namely Shamroz Khan who was admittedly present on the spot, according to the F. I. R. And the prosecution witness was not examined by the prosecution. Learned counsel further submitted that the medical evidence does not support the ocular version of the prosecution witnesses, for, if they are to be believed, then two injuries, instead of one, should have been noticed on the body of Itbarud Din deceased. In this behalf learned counsel further added that it transpires from the medical and other evidence that two different types of weapons were used in the crime whereas according to the prosecution witnesses the weapons used by all the three accused persons were those which could be fired with '12 bore cartridges. Learned counsel then submitted that on facts and circumstances of the case Amir Gul appellant au old uncle of the co-accused aged 70 years could not have participated in the crime and therefore the probability that the offence was committed only by the two young absconders- accused and the false implication of the old uncle as head of the family cannot be altogether ruled out. Learned counsel finally pleaded that even if the participation of Amir Gul appellant in the crime is proved then be is entitled to the benefit of lesser penalty of life imprisonment instead of death considering that he was an old person aged 70 year at the time of commission of crime.
6. The important feature of the case which deserves consideration the most is the fact that parties are very closely related, in that Mst. Bibi Roshana is a real sister of Amir Gtil appellant who is also the first cousin of Israfud Din deceased. P. W. Azim Khan had no, enmity with the accused party nor any relationship with the complainant party, on the other hand he is related to the accused in that a daughter of Amir Gill appellant is married to a son of his cousin. There is also nothing in the statement of P. W. Naeem Shah that he had any enmity with the accused party or any relation-- ship with the deceased part; so as to falsely involve the accused on a serious clearly of murder. It was clearly brought out in the evidence on Court question froze P. W. Azim Khan that the pistol used by Amir Gul appellant was a bullet firing weapon and therefore the plea that medical evidence is contrary to ocular testimony has no force at all. Similarly, the contention as to the discrepancy regarding the number of injuries noticed by the doctor on the person of Itbarud Din deceased has already been noticed by the High Court and needs no further consideration by this Court. Both the trial Court and the High Court have also rightly rejected the emphasis laid on behalf of the accused on the non-production of Shamroz as a witness for the reason that the prosecution while abandoning this witness on the ground that he had been won over by the accused party, made him available at the trial but the defence did not avail of the opportunity of cross-examining him. In this behalf the High Court has very rightly observed that "the fact cannot be ignored that the parties are closely related and Shamroz being a teacher of the village, out of fear would not involve himself in serious enmity".
7. We wholeheartedly agree with the appraisal of the High Court that "besides the statements of Naeem Shah and Azim Khan, Mst. Bibi Roshana who is the real sister of the appellant has great value in the context of the present case; though she has lost her husband and son, yet there could be no reason for her to prefer the (false) charge of double murder against her own real brother"
8. The appreciation of the prosecution case by the Courts below is in full accord with the well-settled principles of law and this being a case of crual double murder over trivial dispute calls for no mercy under the law even though the convict was aged 70 years at the time of commission of the crime.
9. For these reasons, this appeal is dismissed.