1. HAMOODUR RAHMAN, C. J.-The petitioner in this case was tried along with three others on charges under sections 302/34 .End 307/34, P. P. C. For the murder of one Ghulam Rasool and murderous assault on his brother Ghulam Hussain.
2. The learned Additional Sessions Judge, Nawab Shah, con--victed the petitioner alone under section 302 and sentenced him to death. His co-accused Usman was convicted under sections 302/34 and 324, P. P. C. And sentenced to transportation for life and rigorous imprisonment for one year respectively. The other accused were acquitted.
3. On appeal and reference, the High Court acquitted Usman of the offence under section 302/34, P. P.
4. C., but maintained his conviction and sentence under section 324, P. P. C. The appeal of the petitioner was, however, dismissed and his sentence of death was confirmed.
5. The petitioner now seeks special leave to appeal. It is contended on his behalf that the testimony of the three pro--secution witnesses who have been disbelieved with regard to the majority of the accused should not be accepted against the petitioner. In any event, in view of the previous enmity due to a previous murder case in which a brother of one of the acquitted accused was an accused and the father-in-law of the deceased was one of the murdered persons the oral testimony of such interested witnesses should not have been accepted without independent corroboration, which was totally lacking in the present case.
6. The incident resulting in the death of Ghulam Rasool took place on the 28th of September 1969 at about 6 p.m. In village Nebhro in Taluka Nawabshah at a time when the deceased, along with his brother, had gone to witness a Kabaddi 'match. The prosecution story is that immediately after the match when the deceased and his brother were returning to the village, all the four accused who were lying in ambush behind a Khabar tree suddenly emerged therefrom and challenged the deceased. The petitioner Shahoo who was carrying a gun stated that he was going to do Faisla with his gun and so saying fired a shot on the chest of the deceased, who fell down presumably dead. Then one of the acquitted accused instigated Usman (since acquitted by the High Court) and the other acquitted accused to kill his brother Ghulam Hussain. On this, one of the acquitted accused, namely, Suleman caught hold of Ghulam Hussain, and Usman who was carrying a hatchet caused injuries with it. According to the prosecution witnesses Suleman and Hussain who were acquitted by the trial Court were not armed at all and the trial Court doubted the presence of these two persons in the incident not only because they were unarmed but because the injuries they were alleged to have caused to Ghulam Hussain were minor and not such as could have been caused in the circumstances deposed to by the witnesses.
7. Although an empty cartridge had been recovered from the petitioner Shahoo and it had been found by the Ballistic Expert to have been fired by the gun produced by him. The Ballistic Expert was not examined in Court. His report was, therefore, not admissible in evidence. The hatchet said to have been recovered at the instance of Usman had no blood stains on it. It was, therefore, not sent for chemical examination. The conviction of the petitioner thus depended, as observed by the High Court, mainly on the ocular evidence of three witnesses of whom one, viz., Sultan (P. W. 4) was disbelieved both by the trial Court and the High Court. Of the other two, one, viz., Ghulam Hussain (P. W. 5), was a brother of the deceased Ghulam Rasool and had himself sustained injuries during the same incident. The other witness, Ismail (P. W. 6), was considered by the High Court to be an independent witness because he belonged to a different caste. Relying, therefore, on the oral testimony of Ghulam Hussain and Ismail, the High Court maintained the conviction of the petitioner Shahoo but acquitted Usman of the charge under section 3(12/34 because there was no evidence to show any pre-concert or conspiracy between Usman and the petitioner Shahoo. The presence of Usman was, however, accepted and his conviction under section 324, P. P. C. For causing hatchet injuries to Ghulam Hussain was maintained.
8. The learned counsel appearing in support of this petition has argued that since three of the accused persons had been acquitted can the same testimony Ismail and Ghulam Hussain could not be relied upon at all without any independent corroboration. In support of this contention, the learned counsel has placed strong reliance on a decision of the Federal Court of Pakistan in the case of Mohammad and another v. The Crown (PLD 1954 FC 84), wherein it was observed that in the case of an offence of murder, the evidence of the prosecution witnesses, which has been rejected as unreliable so far as most of the accused are concerned, would not be safe to rely upon for the purpose of convicting the remaining accused in the case in the absence of confirmatory evidence, particularly, where there was clear enmity between the parties.
9. In the above referred case, it was clear that the prosecution witnesses were inimical to the accused persons. In the present case, however, there is nothing to show that Ismail (P. W. 6) was inimical.
10. The High Court has found him to be "thoroughly disinterested". The only suggestion against him was that because he belonged to the Jatoi group and the accused belonged to the Sayyed group and these groups were rivals in the elections, he was inimical to the accused. This was a very far- fetched suggestion and was, in our opinion, rightly rejected by the High, Court. The fact that he attended the burial of the deceased is also not a circumstance which would be sufficient to Indicate that he was inimical towards the accused or that he was interested in the deceased or the complainant party. In the circumstances the decision relied upon has no application. His evidence fully corroborated the evidence of Ghulam Hussain, the injured witness and, therefore, could legitimately form a basis of the conviction.
11. The next contention of the learned counsel that the motive had not been proved is also not correct while it is true that the immediate motive alleged was not accepted by the Courts below, it does appear that there is a background of emity as a result of previous murders and, therefore, some motive does exist.
12. The fact that other independent persons who might have been witnessing the Kabaddi match bad not been examined is not a sufficient ground for rejecting the evidence of the two witnesses relied upon by the Courts below.
13. We have examined the evidence of Ismail with the help of the learned counsel and can find nothing therein to suggest that he could be treated either as an interested witness or an unreliable witness, In the circumstances, we see no reason to interfere with the appreciation of evidence given by the Courts below on correct principles. The petitioner Shahoo has, in out view, been rightly convicted, Both these petitions are accordingly dismissed.