1. ANWARUL HAQ, J.----This order will dispose of petitions for special leave to appeal bearing Nos. 2- P and 7-P of 1973. The first one is by the convict, Shahid-u-Zaman, and the second one is by the father of the deceased Nurul Amin.
2. The petitioner, Shahid-u-Zaman, a student of First Year class at Government College, Charsadda, was convicted under section 302 of the Pakistan Penal Code by the learnedSessions Judge at Peshawar, and sentenced to undergo transportation for life, for the murder of a fellow student named Nurul Amin. His appeal has been dismissed by a Division Bench of the Peshawar High Court by its order dated the 15th of November 1972. By the same order, the learned Judges have also dismissed a revision petition filed by the father of the deceased for the enhancement of the sentence.
3. The case for the prosecution was that the petitioner, the deceased and the two prosecution witnesses Mohibullah and Nisar Ali, were all residing in the hostel attached to the Government College, Charsadda. A few days before the present occurrence, an altercation had taken place between the petitioner and the deceased owing to the reason that the deceased, who was an Assistant Monitor in the hostel, had admonished the petitioner for being noisy during the study hours. It was alleged that the petitioner nursed a grievance against the deceased on that score, and accordingly killed him on the night of the 9th of May 1971, by firing at him from a fairly close range.
4. At the trial, Nisar Ali deposed that the petitioner had come into the hostel at b-30 or 9 p. m. And had enquired from him as to the whereabouts of the deceased, to which enquiry Nisar Ali had replied that the deceased might be in his room. Thereupon, the petitioner went to the room of the deceased. From here the thread was taken up by Mohibullah, who was sharing the room with the deceased. He gave evidence to the effect that the petitioner had come to the room while the witness and the deceased were both busy at their studies. The petitioner asked the deceased to come out of the room as he had some business with him, and accordingly Nurul Amin accompanied the petitioner. Thus, the evidence of Nisar Ali and Mohibullah showed that the deceased had left his room in the company of the petitioner. That was the last time he was seen alive.
5. Soon thereafter, both the witnesses heard a report of three shots being fired. They rushed out and saw Nurul Amin lying injured in a field immediately outside the door of the hostel and in the light of a lightning splash they saw the petitioner escaping from the spot while armed with Tamancha.
6. They brought the injured Nurul Amin to the hostel and informed the Principal, who was at that time present there. Mohibullah reported the matter at Charsadda Police Station at 9-45 p. m.
7. The petitioner was not immediately available and was arrested only on the 27th of May 1971.
8. The petitioner had pleaded not guilty at the trial and alleged that Mohibullah had given evidence against him owing to enmity. From the details given by him the enmity appears to be of a very indirect nature indeed. As regards Nisar Ali, he alleged that he gave false evidence owing to a quarrel which had taken place between them a few days before the occurrence. He denied his abscondence and asserted that he bad gone to Afghanistan a few days before the occurrence and returned on learning of this incident froth his father.
9. Both the Courts below have placed full reliance on the testimony of Nisar Ali and Mohibullah observing that these boys had no enmity with the petitioner. The High Court has, however, expressed its doubt as to whether the two witnesses could have recognised the petitioner in the lightning splash, as it is possible that the petitioner might have his back towards them. The High Court has also described the motive for the crime as being doubtful, The learned Judges have, in the circumstances, held that something must have happened between the petitioner and the deceased which led to a sudden assault by the petitioner, thus justifying the imposition of the lesser penalty.
10. It is submitted by Mr. M. A. Bangash, the learned counsel for the convict, that once the High Court had expressed its doubts regarding the motive alleged by the prosecution, and also regarding the possibility of the witnesses identifying the petitioner in a dark and cloudy night, it should have given the benefit of doubt to the petitioner. It is next contended that the evidence regarding the absconsion of the petitioner has not at all been discussed by the learned Judges of the High Court, and this circumstance could not, therefore, be used as corroboration against him. It is further contended that there are certain inherent improbabilities in the prosecution story, as it was brought out in evidence that the doors of the hostel used to be closed at 8-30 or 9 p. m. And nothing was brought on the record to show that the doors were open so as to admit the petitioner at that late hour. Lastly, a grievance is made of the fact that an eye-witness by the name of Faqir Gul was deliberately given up by the prosecution, and, therefore, an adverse inference should be drawn against it.
11. After hearing the learned counsel for the convict, and perusing the available record, we are of the view that no justification is made out for our interference in the matter. We consider that the Courts below were right in placing reliance on the testimony of Mohibullah (P. W. 7) and Nisar Ali (P. W. 8), both of whore were admittedly residing in the hostel on the relevant date, and had no motive whatsoever to falsely implicate the petitioner in this crime. Their evidence fully establishes the fact that the deceased was last seen alive in the company of the petitioner, that he left the hostel with him, and soon thereafter, shots were heard and the deceased was found lying injured. We are also of the view that there was nothing improbable in the two witnesses recognising the petitioner in the splash of a lightning. However, even if this particular fact is excluded, the circumstances proved by these two witnesses are incompatible with the innocence of the petitioner.
12. The ocular testimony of these two witnesses is corroborated by the medical evidence and by the fact that the petitioner had absconded immediately after the occurrence. This part of the case has been fully taken into account by the High Court.
13. The inherent improbabilities pointed out by the learned counsel seem to be more imaginary than real. There is no evidence that the doors of the hostel were, on that particular night, finally closed before the petitioner could return to the hostel; on the contrary, the evidence presents a fluid picture, namely, that the doors used to be closed by 8 par 8-30 p.m. And no one knows as to what exactly was done in this regard on the night of the occur--rence. We can certainly take judicial notice of the fact that the doors of any college hostel are not closed in the sense that no one is admitted at all after the prescribed hours.
14. It is true that Faqir Gul was given up by the prosecution, but it was stated at the trial that the reason for doing so was that the grand-father of the deceased had alleged that this witness had been won over by the accused. However, the witness was made available for cross-examination by the defence, but such an opportunity was not taken.
15. For the foregoing reasons we are satisfied that the petitioner has been rightly convicted.
16. As regards the sentence, we are inclined to agree with the Courts below that the motive suggested by the prosecution not being particularly strong, it is possible that the murder might have been the result of something that passed between the two young men immediately before the assault. In the circumstances, extreme penalty sanctioned by law was not called for.
17. For the foregoing reasons, both the petitions fail and are hereby dismissed.