1. DOBAB PATEL, J.-Mohammad Anwar was shot dead on 22-1-1915, at degarwela in village Shadi Khel, District Kohat. A case was, there--fore, registered under section 302/34, P. P. C. Against the petitioner, one Bismillah Din, and Sikandar Shah. As Sikandar Shah was an absconder, the petitioner was tried with Bismillah Din for Mohammad Anwar's murder and the Sessions Court, Kohat convicted the petitioner as well as the other accused under section 302, P. P. C. And sentenced them to transporta--tion for life. Fines were also imposed. The petitioner and the other accused riled an appeal against their conviction in the Peshawar High court which was heard with a Revision filed by the father of the deceased for the enhancement of the sentence passed against the petitioner and the other accused. By their judgment dated 8-11-1977, the learned Judges of the Peshawar High Court dismissed the Revision, gave the benefit of doubt to the other accused and acquitted him. But they upheld the petitioner's conviction and dismissed his appeal. Hence this petition for appeal.
2. According to the prosecution, the motive for the occurrence was that sometime before the occurrence the deceased bad stolen some cauliflower and other articles from the garden of the petitioner, therefore, the peti--tioner wanted to take his revenge against the deceased and bad, therefore, murdered him. In support of its cage, the prosecution relied on the evidence of three eye-witnesses, P. Ws. Shamsbad, Naushad and Purdil Khan. No recoveries were made which could connect the petitioner with the crime but proceedings were taken against him under section 88, Cr.
3. P. C. And be surrendered to the Police on 25-2-1975.
4. The petitioner pleaded an alibi and stated that he was in the Divisional Headquarter Hospital in Mardan from 22-1-1915 to 6-2-1975 and that he had surrendered to the Police as soon as he came to know of the murder and the fact that he was charged with it. He also examined wit--nesses in support of his plea of alibi and it is sufficient to state that D. W. Rehmanuddin produced the hospital records to show that the petitioner had been admitted as an indoor patient in the hospital from 22-1-1975 to 6-2-1975. Dr. Alam Khan, a doctor of the hospital, was also examined by the petitioner and he gave evidence that the petitioner had hero admitted in the hospital and had met him in Mardan on 22-1-1975.
5. The judgment of the Sessions Court is not available, but its would appear from the judgment under appeal that the learned Sessions Judge was impressed by the ocular evidence, therefore, he rejected the petitioner's plea of alibi and the evidence of the witnesses examined by him, and convicted the petitioner as stated.
6. The learned Judges of the Peshawar High Court agreed with the Trial Court---s appreciation of evidence and they hold that the ocular evidence was reliable and was corroborated by the petitioner's abscondence. As they were also not impressed by the evidence produced by the petitioner in support of his plea of alibi, they dismissed his appeal.
7. The petitioner has not filed copies of the depositions, but learned counsel admitted that the three eye-witnesses had fully implicated the petitioner and attributed the fatal shot to him. He, however, challenged their evidence on the ground of enmity. But the motive given by the prosecution for the crime is too flimsy, therefore it follows that the eye-Witnesses might have been interested witnesses, but they were not inimical witnesses. In order to over-come this difficulty the learned counsel referred as to the plea taken by the petitioner in his statement in the Sessions Court.
8. Although the statement has not been filed, according to learned counsel what the petitioner had said in the Sessions court was that although Maulvi Ghulam Mohammad was his cousin, there were differences between him and Maulvi Ghulam Mohammad because of some arrangements about the marriage of a member of the family. When we asked learned counsel whether any evidence had been produced in support of the petitioner's plea of enmity, he admitted that no such evidence was produced and on the other hand P. Ws. Shamshad, and Naushad were cousins of both parties, therefore we see no reason to disagree with the finding of the High Court that these witnesses though interested meta witnesses of truth. Additionally, the third witness Purdil Khan was a stranger and it does not appear that any suggestion of enmity was put to him in his cross- examination. Learned counsel, therefore, challenged his evidence on the ground that he was a chance witness. The agreement is fallacious.
9. In the circumstances discussed, we see no reason to differ from the view taken by the High Court that the ocular evidence was reliable. Inc any event, the question is entirely of the appreciation of evidence. In order to overcome this difficulty, learned counsel submitted that the occurrence had taken place in the dark, therefore, the so-called eye-witnesses could not have identified the assailants, but we are not impressed by this submission as the eye-witnesses were the cousins of the petitioner. In any case, this submission is not fit to be entertained because learned counsel admitted that the witnesses were not cross-examined on this aspect of the case.
10. Learned counsel then submitted that the Courts had erred in rejecting the petitioner's plea of alibi and had, therefore, erred in holding that the petitioner had absconded. Now as we indicated earlier, the petitioner had through D. W. Rehmanuddin produced the hospital records to show that he had been admitted into the hospital on the day of the occurrence. But the Scissions Court was not impressed by this evidence for reasons not known to us. Be this as It may, it is clear from the judgment of the High Court that the learned Judges examined the register produced by the witness and were not impressed by it because the entry about the petitioner's admission in the hospital appeared to them to have been interpolated Mr. Chughtai then submitted that Dr. Alam Khan had said that the petitioner had been admitted as an indoor patient in the hospital on the day of the occurrence and as the witness was a disinterested witness and highly educated the Courts had erred In law in rejecting his evidence. Once again, we have to observe that this evidence on which so much stress is placed is not before us. However, the learned Judges of the High Court have observed that although Dr. Alam Khan said that the petitioner had been admitted in the hospital on 22-1-1975, the witness had stated that he did not know when the petitioner had been admitted in the hospital But as Mardan was less than 100 miles from the place of occurrence, and as petitioner was a transporter and a man of means, the learned Judge held that he could easily have reached the hospital from his village on the evening of the occurrence after committing murder. As we do not see any error in the view thus taken by the learned Judges, the evidence pro--duced by the Petitioner obviously failed to prove that he could not have been at the place of occurrence when the murder was committed. In these circumstances, the evidence of alibi was rightly rejected. It was in this back-ground that the learned Judges further observed that the petitioner's abscondence also corroborated the ocular evidence. As the ocular evidence was obviously reliable no exception can be taken to the view of the learned Judges.
11. The petition is without merit and is dismissed.