1. ANWARUL HAQ, J.----This appeal by special leave, is by Muhammad Khurshid, who was convicted by the learned Sessions Judge, Hazara, under section 302 of the Pakistan Penal Code and sentenced to death for the murder of his brother, Zamurred Khan The sentence of death was confirmed by a Division Bench of the Peshawar High Court by its judgment dated the 13th of October 1971.
2. The case for the prosecution lies within a narrow compass. The parties are related to each other.
3. Mst. Bibi Zohra (P. W. 9), widow of the deceased Zamurred Khan, is a real sister of Ghulam Haider (P.
4. W. 10). On their father's death, their mother Mst. Fatima had married Muhammad Ashraf, the father of the deceased and the appellant. Muhammad Ashraf is still alive and is residing in the same compound.
5. It was alleged that the petitioner, a young, man of 20 years of age, became addicted to taking narcotic drugs, and picked up quarrels with his father. The deceased, as the elder brother admonished the appellant and told him to mend his ways. This annoyed the appellant. It was alleged that on the night between the 2nd and 3rd May 1970, at about sargiwela he got on to the roof of their house and fired three shots at his brother Zamurred Khan, while the latter was sleeping on a cot in the courtyard. Zamurred Khan's wife, Mst. Bibi Zohra (P. W. 9), was also sleep--ing on an adjoining cot along with her infant child. On hearing the first shot she woke up, picked up her child and rushed inside the kotha, raising alarm. The appellant fired two more shots which hit the deceased, and then he ran away. The alarm raised by the woman attracted her brother Ghulam Haider (P. W. 10), Muhammad Nawaz and Kala to the spot. In their presence, Bibi Zohra charged the appellant for the murder of her husband.
6. No one from the family took any steps for reporting the murder. However, S. I. Akhtar Ali Khan (P. W.
7. 11) learnt, while on patrol duty in Haripur Bazar, that a fight had taken place in village Bheri Bandi and accordingly rushed to the spot. Reaching there at Y-30 a. In. He recorded the statement of Mst.
8. Bibi Zohra, which forms the first information report in this case. On spot inspection, he recovered three .12 bore empties from the roof of the kotha in the presence of Muhammad Sarwar Khan (P. W.
9. 8) and made them into a sealed parcel. He also took into possession blood-stained earth from the spot, along with the blood-stained bed-clothes of the deceased and five card board pieces and a pellet from underneath the cot.
10. The post-mortem examination of the bead Body, as conducted by Dr. Nisar Ahmad Khan (P. W. 1), showed that there were eight wounds of inlet on the back of the chest, eight wounds of inlet on the right loin, two wounds of exit on the left side of the chest and two wounds of exit on the left side of the iliac crest.
11. The appellant absconded from the spot after the occurrence, and was accidentally arrested on the 19th of June 1970, in the area of village Barila in the jurisdiction of Police Station Khanpur by S. I.
12. Saeed Akhtar Zaidi (P. W. 4). In the presence of Subedar Mirdad Khan (P. W. 5), the Police Officer recovered from appellant a shot-gun of .12 bore together with 26 live cartridges, and a revolver of .32 bore together with five live cartridges. Having sealed the recovered articles he referred the accused to Haripur Police Station.
13. The crime empties were found, by Muhammad Ashraf Malik (P. W. 12), Director, Forensic Science Laboratory, Peshawar, to match with the .12 bore gun recovered from the appellant at the time of his arrest. In the examination-in-chief of this witness, there was some confusion as to the dates on which the crime empties had been received by him. However, the matter was cleared up in cross- examination, and we are satisfied that the crime empties had been despatched to him by the S. P., Peshawar on a much earlier date than the arrest of the appellant on the 19th of June 1970 and the recovery of the gun from his person.
14. The appellant pleaded not guilty at the trial, and asserted that he had been falsely implicated by Mst. Bibi Zohra and her brother Ghulam Haider, as they had conspired to kill the deceased in order to grab his property and to eliminate the appellant by securing his conviction in this case. This assertion was, however, found by the High Court, and rightly, to be preposterous, as the mother of Mst. Bibi Zohra and Ghulam Haider had begotten another son from her second husband, and in his presence no question would arise of Mst. Bibi Zohra and her brother inherit--ing the property of their step-father Muhammad Ashraf. It is also unthinkable that a brother would conspire to kill the husband of his sister for no reason at all except that they may ultimately inherit the property of the step-father, although there was another son in the field.
15. The Courts below have placed full reliance upon the ocular testimony of Mst. Bibi Zohra, and have held that it finds corrobo--ration from the evidence of Ghulam Haider, the matching of the crime empties, with the gun recovered from the appellant, and the absconsion of the appellant soon after the occurrence. Leave was granted to examine whether the identity of the appellant was satisfactorily established on the evidence relied upon by the prosecution.
16. After perusing the record and hearing the learned counsel for the appellant, we are satisfied that the identity of the appellant, as the person who fired the shots from the roof, stands established beyond any reasonable doubt. Mst. Bibi Zohra and Ghulam Harder bad no motive whatsoever to falsely implicate the appellant, who is the real younger brother of Mst. Bibi Zohra's deceased husband. It is on account of this relationship that no member of the family made any move to make a report against the appellant, and it was left to the S. H. O. Of the Police Station concerned to come to the spot after getting information of the incident in Haripur Bazar. The F. I. R. Was made by Mst. Bibi Zohra in the village in the presence of her in-laws, and it would have been difficult for her to make a false allegation in the presence of all these relations of the appellant.
17. In this report she clearly asserted that she was able to recognise the appellant, and that he had himself shouted that he was Khurshid. Ghulam Haider's evidence also leaves no doubt that he identified the appellant when he was escaping from the spot. The arrest of the appellant in the jurisdiction of a different Police Station and the recovery of the gun from his possession, which matched with the crime empties, is a strong corroborative circumstance. The absconsion of the appellant has also rightly been regarded as providing confirmation of his guilt.As a result, we consider that the appellant was rightly convicted.
18. As regards the sentence, it was submitted that the appellant was a young man of 19 or 20 years of age, and had become an addict to narcotics owing to a broken home, as his mother was divorced by his father when he was only a child of two years of age. It was submitted that, in these circumstances, the extreme penalty provided by law should not be exacted from the appellant, and in support of this submission reliance was placed on the judgment of this Court reported as Muhammad Shaji v. The State (PLD 1962 SC 472).
19. We may say at once that the case referred to by the learned counsel is clearly distinguishable from the instant case, as the appellant's condition in that case was bordering on insanity, although not quite falling within the four-corners of section 84 of the Pakistan Penal Code. The High Court had awarded the sentence of transportation for life, and this Court did not inter--fere with that sentence.
20. Now in the present case, the High Court has given good reasons for maintaining and confirming the death sentence imposed on the appellant by the trial Court. The learned Judges have observed that, in their opinion, "it, was a calculated murder committed in cold blood of a real brother who had done nothing except to admonish the appellant to give up the evil habit of taking intoxicants and unruly behaviour. The appellant felt annoyed and retaliated by killing his brother outright".
21. From the facts brought on the record, it is not possible for us to say that these observations are not justified. In the circumstances, we see no reason to interfere with the sentence.
22. For the foregoing reasons, the appeal fails and is hereby dismissed.