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Petition for Special Leave to Appeal No. 96 of 1968, decided on 26th June 1968.

(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 16th February 1968, in Criminal Appeal No. 374 of 1967/Murder Reference No. 83 of 1967).

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---- S. 302‑Petition for Special Leave to Appeal against conviction sought merely on question of appreciation of evidence‑Leave refused‑Constitution of Pakistan (1962), Art. 58 (3):

Rafiq Ahmad Sheikh, Advocate Supreme Court instructed by Fazl‑i‑Hussain, Attorney for Petitioners.

Nemo for the State.

Date of hearing : 26th June 1968.

‑The two petitioners were convicted and sentenced to transportation for life under section 302/34, P. P. C. Sohrab Khan, who does not appear to have filed any petition for leave, was convicted and sentenced to death under section 302, P. P. C. Ten persons including these three also were convicted under section 148, P. P. C. and each was sentenced to R. I for six months. On appeal the High Court maintained the convictions and sentences of the petitioners and Sohrab Khan under sections 302/34 and 302, P. P. C. respectively, but set aside the convictions and sentences under section 148, P. P. C.

On the 22nd October 1965, at Kiraki rotiwela (about 12'O clock in the noon), Ayub Khan deceased was sitting in the Baithak of his house in the company of Mst. Khatoon, P. W. 2, Mst. Sahib Khatoon, P. W. 3. his sisters and Saif Ullah, P. W. his nephew and son‑in‑law. The petitioners, Sohrab Khan and a number of others armed with guns came at the door of the Baithak. Sohrab Khan accused shouted a lalkara saying "Ayub Khan your end has come" and fired at him. Ayub Khan was hit by the gun‑shot in the abdomen and fell down on the ground.

Soon after the commission of this offence the accused persons went towards the adjacent haveli of Jahan Khan. The accused persons entered the courtyard of Jahan Khan and the two peti tioners fired at him with their guns. He was hit at the left side of his chest and fell down and died instantaneously. Mst. Hidayat Khatoon, P. W. 4 and his mother Mst. Gul Naz saw the incident. Ayub Khan, who was in a precarious condition was attended by the P. Ws. Saif Ullah Khan was put incharge of the dead body of Jahan Khan and injured Ayub Khan. Mst. Khatoon one of the sisters of the deceased hastened to the Police Station, Sadar Mianwali but on her way met Head Constable of Police Ghulam Rasul Khan. The Head Constable arrived at the site of offence at about 3‑00 p.m. Ayub Khan was taken to the hospital arid died 'the next morning at 1‑00 a.m.

The learned counsel for the petitioners has contended that as no blood‑stained earth was taken from the courtyard of Jahan Khan there was no second incident as alleged by the prosecution and the petitioners had been falsely implicated. It is then contended that the doctor who held the post‑mortem examination on the dead body of Jahan Khan found that there was blackening on the injuries caused by gun‑fire and this clearly shows that the prosecution story that shots were fired from a distance of 40:feet as is evident from the map, is not true.

The questions raised relate to appreciation of evidence and cannot be gone into by this Court after the concurrent findings of the Courts below. The learned Judges in the High Court have accepted the evidence of Mst. Hidayat Khatoon and Mst. Gul Naz in regard to the incident in which Jahan Khan was killed. Referring to the discrepancy with regard to the distance from which the petitioners were said to have fired at Jahan Khan, they observed that they did not attach much value to it because for the witnesses particularly the ladies it was not possible to have correctly estimated the distance in the stress and strain of the incident in which Jahan Khan was shot dead in their presence in the twinkling of an eye.

There is no merit in this petition and it i5 dismissed.

Leave refused.

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