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Petition for Special Leave to Appeal No. 8 of 1968, decided on 24th June 1968.

(On appeal from‑the judgment and order of the High Court of West Pakistan, Lahore, dated the ‑29th November 1967, in Criminal Appeal No. 859 of 1966).

Ss. 302 & 148‑High Court setting aside conviction holding that evidence of solitary witness relied upon by trial Court was not disinterested‑Order of acquittal held, proper‑Special Leave to Appeal refused by Supreme Court.

---S. 32 and Penal Code (XLV of 1860), S. 302‑Dhing declaration made to a partisan witness‑Implicit reliance cannot be placed upon.

Ch. Amjad Khan, Advocate Supreme Court instructed by S. Inayat Hussain, Attorney for Petitioner

Nemo for Respondents Nos. 1 to 5.

Ijaz Ali, Attorney Supreme Court for Respondent No. 6.

Date of hearing : 24th June 1968.

‑Respondents Nos. I ‑A0 5 and one Hamid Shah were tried for the murder of Rahmat Ali by the Sessions Judge, Sialkot. He convicted the said respondents under section 302/149, P. P. C. and sentenced Afzal Bahar Shah (respondent No. 1) to death and the others to transportation for life. He also convicted them under section 323/149, P. P. C. for causing hurt to Panah Muhammad and sentenced them to rigorous imprisonment for one year each. They were also convicted under section 148, P. P. C. and sentenced to rigorous imprisonment for three years each. He, however, acquitted Hamid Shah.

On appeal and reference. the High Court set aside their convictions and sentences and acquitted them. Ahmad Din a brother of the deceased Rahmat Ali seeks special leave to appeal against their acquittal.

The incident took place at night between 29th and 30th August 1966, in a field where Rahmat Ali was sleeping with his brother Ahmad Din and one Panah Muhammad. The accused party came armed with a hammer and dangs, attacked Rahmat Ali and inflicted a number of injuries on his person. Panah Muhammad while attempting to rescue Rahmat also received some injuries. As on hearing the alarm raised by the complainant party people were coming from a nearby village, the assailants left the place. The injured Rahmat was removed to the Civil Hospital, Shakargarh, where he succumbed to his injuries nextmorning at 6‑50. a.m.

The prosecution ease rested on the evidence of the eye witnesses Ahmad Din (P. W. 16) and Panah Muhammad (P. W. 17) and the dying declaration which the deceased made to Shah Din (P. W. 19) and Muhammad Din (C. W. 1) before his removal to the hospital.

The Sessions Judge did not consider it safe to rely on the evidence of inimical witnesses Panah Muhammad and Shah Din in the absence of any independent corroboration. He, however, regarded Ahmad Din as an independent and honest witness and hence based the conviction of 5 accused on his evidence.

The learned Judges of the High Court were unable to agree with the Sessions Judge that Ahmad Din was an independent witness. They after discussing the various circumstances doubted presence of the eye‑witnesses at the time of occurrence. Further according to them, injuries on Panah Muhammad could have been easily caused by friendly hand. They pointed out that if Panah Muhammad, an enemy of the accused party, was present at the time of occurrence, he would not have escaped with two bruises on his left thigh. They also gave a number of reasons for coming to the conclusion that it would not be safe to rely on the evidence of Ahmad Din, in the absence of confirmatory circum stance. In the facts and circumstances of the case they were also unable to place much reliance on the dying declaration alleged to have been made to Shah Din and Muhammad Din.

In our opinion, the learned Judges of the High Court have given very substantial and compelling reasons for taking a view different from the Sessions Judge with regard to the evidence of the eye‑witnesses. On a proper appreciation of all the circum stances, the learned Judges, we think, came to the right conclusion that it would not be safe to rely on their evidence. Further we agree with them that no confirmatory circumstances has been shown to exist which could serve to corroborate the prosecu tion case. Lastly it was rightly held that the alleged dying declaration to the partisan witnesses could not be implicitly relied upon.

For the reasons stated above, we are unable to accept the contentions of the learned counsel that on the evidence in this case the learned Judges of the High Court were not justified in acquitting the respondents.

This petition is dismissed.

Leave refused.

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