1. WAHEEDUDDIN AHMAD, -J.-This appeal by special leave is directed against the . Judgment of the Lahore High Court in Criminal, Appeal No. 763, of r969 (Murder Reference No. 196 of 1969), dated the 11th March 1971. By this judgment, the appellant's sentence of death was confirmed.
2. The appellant, along with his real brother Ghulam A.I and his nephew Habibullah and his deceased brother's son-in-law Faqir Muhammad,was tried by the learned Sessions Judge, Mianwali, under section 302 read with section 34, P. P. C. For the murder of Noor Muhammad. The learned Sessions Judge, by judgment dated the 30th September 1969, acquitted Ghulam A.I and Faqir Mohammad.
3. The appellant was sentenced to death and his nephew Habibullah to transportation for life. The appel--lant challenged this judgment in the High Court. Murder Reference was also made. The High Court, by judgment dated the 11th March 1971, acquitted Habibullah and maintained the conviction of the appellant. The appellant has challenged this judgment in this appeal before us.
4. The prosecution case is that a few days prior to the 8 December 1969, Ahmad P. W. 11 struck a bargain with Muhammad deceased to sell his cotton to hint. On the 8 December 1968, at about degarwela time, Ahmad P. W. 11 came to the house of Noor Muhammad deceased and asked him to weigh the cotton. Ahmad P. W. 11, Noor Muhammad decease Hussain who had a weighing scale for weighing cotton. Ghulam Khawaja, a brother of Ahmad P. W. 11 was also there. A cotton bag was put by Noor Muhammad deceased on the weighing scale. It is alleged that at that time, four person, namely, Allah Diwaya appellant, his brother Ghulam A.I, his nephew Habibullah and his brother's son-in-law Faqir Muhammad came there. Allah Diwaya appellant is alleged to have been armed with a rifle. The other three were empty-handed. It is alleged that Habibullah accused shouted a lalkara to Noor Muhammad and thereafter Allah Diwaya appellant fired a shot at Noorth th Muhammad hitting him on the right side of his chest. Noon Muhammad fell down on the ground.At that time, Mehr Muhammad P. W. 10 was also at some distance from the spot and he also witnessed the occurrence.
5. Thereafter, all the accused escaped. The four eye-witnesses went near Noor Muhammad and found him dead. Namdar P. W. 9 proceeded to the Police Station Mochh in District Mianwali and lodged F. I. R., Exh. P. A. At 5 p.m. The distance between the place of occurrence and police station being about 5 to 6 miles. The matter was investigated by the police and the Sub-Inspector succeeded in arresting Habibullah on the 11th and Allah Diwaya on the 14th December 1968.
6. The motive for the murder is alleged to be that about 10 to 12 years ago, Fateh Muhammad a brother of the appellant and father of Habibullah co-accused was murdered by Noor Muhammad deceased and his two relatives. This murder was compromised. In pursuance of the compromise, marriages have been transacted between the parties and Rs.4,000 were paid as compensation.
7. Deceased and others were acquitted. It is also admitted that the complainant party was on visiting terms with the accused.
8. The prosecution ease rested on the evidence of three eye. Witnesses, namely; Namdar P. W. 9, Mehr Muhammad P. W. Ltd and Ahmad P. W. 11 and on the medical evidence. This evidence was believed by the trial Court and the High Court against the: appellant.
9. Mr: M. Anwar, learned counsel for the appellant, has con--tended that the occurrence being a daylight occurrence and having been committees in the village and in the courtyard of another named- person, around which were residential quarters, no inde--pendent witness residing therein, has been produced. According to the learned counsel, there is an inference under section 114 of the Evidence Act that if those witnesses had been produced they would not have supported the prosecution case. The learned counsel further contended that the three eye-witnesses who have been produced in support of the prosecution case are very closely related to the deceased and that in addition to the discrepancies, in the statements, their testimony is contradicted by the medical evidence itself. It was also urged that the motive alleged by the prosecution was not such which would induce the appellant and his co-accused tea commit this heinous crime. It was further statements of the three eye-witnesses should not be considered to be enough and relied upon without independent corroboration against the appellant and his co-accused, as their testimony hay not been accepted against some of the accused persons.
10. The contention raised by the learned counsel has no impressed us. It is true that the eye-witnesses who have depose against the appellant are closely related to the deceased and some corroboration is necessary to accept their evidence against the appellant. Mr. M. Anwar learned counsel for the appellant con tended that the seats of injuries of entrance and exit indicated a slight difference in the level from the upwards with the assailant'; being at a slightly higher plane.
11. According to the learned counsel the assailant was at a higher level but the evidence on the record shows that the assailant and the deceased were on the same level This aspect of the case was considered by the trial Court. In this connection, the trial Court observed as under :- "There is no doubt that it was stated by Dr. Nazir Ahmad Nazar P. W. 1 that the position of injuries Nos. 1 and indicates that the assailant was on a higher level than his victim but the statement so made is in conformity with the statement; given by Mehr Muhammad P. W. 10 and Ahmad P. W.
11. It was stated by the former in his cross-examination that the place where Allah Diwaya accused was standing at the time of firing was about four feet higher than the level of the place where Noor Muhammad deceased was standing at that time. According to him, there were small heaps of rubbish etc., at the place where the accused persons were present and on account of the same, there was rise in the level of the ground. Ahmad P. W. 11, in his cross-examination, came forward with the version that the place where Allah Diwaya stood at the time of firing was a bit higher in level than the place where Noor Muhammad stood at the time of firing. From these facts, it will be seen that the statements given by the aforesaid two P. Ws., make it perfectly clear that the assailant was on a higher, level than the deceased with the result that the medical evidence was consistent with their testimony:"
12. We have considered the observations of the learned Judge in the light of the prosecution evidence on this point and in our opinion these observations are in accordance with the statements made by Mehr Muhammad P. W. 10 and Ahmad P. W.
11. From this evidence, it is quite clear that the appellant was on a higher level than the deceased. In view of this, it cannot be said that the eye- witnesses' evidence is not consistent with the medical evidence.
13. After going through the entire evidence, we are satisfied that it was a broad daylight murder. The eye-witnesses should have no difficulty in identifying the assailant. The evidence of the eye- witnesses is corroborated by the medical evidence and we see no ground to differ from the view taken by the trial Court and the High Court that the appellant was responsible for the murder of deceased Noor Muhammad. Both the trial Court and the High Court have appreciated the evidence of the prosecution properly and we see no ground to interfere with it. The appeal is dismissed.