1. ' SHAFIUR RAHMAN, J.--Khushdil, the first informant and a son of Khalid Khan deceased, seeks leave to appeal against the judgment of the Peshawar High Court dated 24-5-1981 whereby the conviction of Jamal Din his uncle under section 302, P. P. C. Was set aside and he was acquitted.
2. ' The prosecution case in brief was that Khalid Khan the deceased and his brother Jamal Din the accused had enmity over property. The deceased was a retired police constable and it is stated that on his return to the village on retirement he asked for his share of the land which was in possession of Jamal Din respondent. A dispute arose over it which resulted in a number of cases and cross-cases between the parties charging each other for firing. These found reflected in F. I. R.
3. No, 43 registered on 18-3-1978, F. I. R. No, 100, dated 13-6-1978 and F. I. R. No, 101 of the same date. On the 8th of October, 1978, the deceased with a tongi and tin containers and in the company of his son Khushdil aged 15 years started from his house for a water tank at some distance to fetch water in order to construct a wall of his house. While they were returning with the water in the tin containers they happened to pass by the respondent Jamal Din and his son Shamail Khan, both armed with fire-arms. After they had got a few paces ahead they were fired at by the respondent and his companion. The respondent had a shot gun and his son had a rifle. A nu nber of shots hit the deceased, who fell on the ground and expired. Mst. Durkhana (P. W. 9), widow of the deceased, was at that time throwing the garbage in the dust-bin outside her house when she heard the reports of the fire shots. She rushed to the spot and saw the respondent and his son armed returning and one of them called out to her to take care of her husband. On going to the spot she found him dead. Khushdil immediately went to the Police Post Ghazni Khel at a distance of 12 miles and lodged the report about the occurrence which was transmitted to the Police Station Tajori on which the formal F. I. R. Was registered. The investigation was taken up by Kalam Rais Khan, A. S. I.
4. (P. W. 10). He went to the spot and found that the dead body had been taken to the house. He attended to it and thereafter came to the spot and made the recoveries of card-board discs, in all six in numbers from different places. He also recovered a tongi and tin containers in which the water was being carried by the deceased. A number of fire-arm injuries were found on the dead body and a lead of the bullet was also recovered from inside the dead body. The respondent at the trial admitted the cases reported at the police station of firing against each other but denied having fired at and caused the death of the deceased. His son and co-accused Shamail Khan remained an absconder. The respondent himself was arrested on 28-5-1979.
5. ' The trial Court examined the entire evidence and came to the conclusion that Khushdil was an eye-witness and had truthfully reproduced the events as they had taken place. He found corroboration for it in the motive and the recoveries effected from the spot and also from the statement of Mst. Durkhana. He found the respondent guilty and convicted him under section 302, P. P. C. And sentenced him to death.
6. ' The High Court while seized of the question of confirmation of death sentence and the appeal of the respondent did not purposely examine the merits of the testimony of Khushdil and Mst.
7. Durkhana in order that the case of the absconder may not be prejudiced or prejudged thereby.
8. Instead the necessary corroboration was sought for as the witnesses were highly interested.
9. Notwithstanding the recovery of card-board disc from the spot in the absence of recovery of lead of the pellets from inside the injury or the dead body or near about the place of occurrence it was held that necessary corroboration was not forthcoming and reasonable doubt still existed about the participation of the respondent Jamail in the occurrence.
10. ' The learned counsel for the petitioner contended that the presence of Mst. Durkhana and Khushdil was established and not disputed by any Court. In such a situation the necessary corroboration must be deemed to be forthcoming from the motive and the abscondence of the respondent upto 28th of May, 1979, when he surrendered. According to the learned counsel the evidence was sufficient and established beyond reasonable doubt the guilt of the respondent.
11. ' The fact that enmity existed between the brothers is established by creditworthy evidence particularly from the cases registered at the police station against each other. This has also made the evidence of Mst. Durkhana and Khushdil interested. Independent corroboration was, therefore, considered necessary and rightly so. The abscondence by itself considering the area to which the respondents belonged and their ordinary professional requirements was considered insufficient to provide the strong corroboration for establishing the guilt. Similarly the motive by itself was not considered sufficient, in the circumstances of the case, to prove the offence. Something beyond had to be looked for. As the respondent was charged for firing from a shot-gun the mere recovery of the card-board discs from the place of occurrence by the police during the investigation was considered not sufficient unless the pellets were also found there or in the dead body. This may be a requirement sought for by the High Court which may not be legal so as to apply to all cases of similar nature but on the facts of the case it appears that tin conclusion of the High Court was simply that in its absence the required corroboration was not forthcoming. We find that the restraint exercised by the High Court in arriving at the guilt of the respondent on the basis of interested testimony without proper corroboration to the satisfaction of the Court is in line with the recognized principles of safe administration of criminal justice. No error of law has been committed in appraising the testimony of the witnesses which admittedly are interested and inimical. We find no merit in this petition and leave to appeal is refused.