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Petitions for Special Leave to Appeals Nos. 37 and 60 of 1968, decided on 13th March 1968.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 18th December 1967, in Criminal Appeal No. 120 of 1967/Murder Reference No. 31 of 1967).
S. 302‑Conviction under section‑Contention that occurrence was alleged to have taken place at 9 a. m. whilst post‑mortem examination revealed stomach to be empty‑Held: in absence of evidence that deceased had eaten anything prior to occurrence, nothing turned on mere statement that deceased's stomach was found empty.
Art. 58 (3)‑‑Conviction under S. 302‑‑‑Point relating to mere appreciation of evidence -Furnish no ground for grant of Special Leave to Appeal‑Penal Code (XI V of 1860), S. 302.
S. 302‑‑‑Conviction under section‑High Court on appeal reducing sentence of death to that of transportation for life on ground that there was some provocation offered by deceased‑Exercise of discretion by High Court, held, not wrong‑‑Special Leave to Appeal seeking enhancement of sentence‑Refused by Supreme Court.
Muhammad Abdullah Bajwa, Advocate Supreme Court (Ch. Azam Ali, Advocate High Court with him) instructed by Abid A Buttar, Attorney for Petitioners.
Nemo for the State.
Date of hearing: 13th March 1968.
This order will dispose of two petitions for special leave to appeal, Nos. 37 and 60 of 1968. The former is by Allah Bakhsh and Atta Muhammad, whose conviction under section 302/34, P. P. C., was maintained by the High Court of West Pakistan, but whose sentences were reduced to transporta tion for life each, from that of death. The second petition is by Karim Bakhsh, the complainant in the case, and he seeks the enhancement of the sentences of the convicts to those of death. In the first petition Mr. Muhammad Abdullah Bajwa, on behalf of the convicts, has tried to argue that his clients' convic tion should have been set aside by the High Court in the circumstances of the case. He has attempted to argue that certain facts appearing in the evidence have not been adverted to by the learned Judges of the High Court and that this vitiates their judgment. In this context, he has drawn our attention to the fact that according to the doctor, who performed the post‑mortem examination of the dead body of the deceased, the latter' stomach was empty. The argument is that this is not consistent with the occurrence, which took place tit about 9 a. m. on the 11th March 1966. However, the learned counsel concedes that there was no evidence to show as to when, if at all, the deceased had eaten anything that morning. Nothing, therefore, turns on the mere statement that the deceased's stomach was found to be empty at the time of the autopsy.
Mr. Bajwa also contended that the High Court not having relied on two out of the four eye‑witnesses, should not have relied on the remaining two, namely, Manzoor and Kalu, P. Ws., on the ground that they were also interested witnesses. In this connection he invited our attention to the fact that Manzoor, when questioned in cross‑examination, had denied that he was joint in cultivation with the deceased. But Karim Bux, P. W., brother of the deceased, admitted that fact. This does not appear, however, to be an admission of jointness in cultivation. Karim Bakhsh made it clear that though they held land in the same Khata jointly, their cultivation was entirely separate. Manzoor cannot, therefore, be described as an interested witness merely due to this, circumstance. Noticing was said to show that Kalu, P. W., way, in any way, interested in the prosecution or against the accused.
Other points raised by the learned counsel in this petition merely go to the appreciation of the evidence on which the conviction of the petitioners rest and they can furnish no ground for grant of special leave to appeal. We dismiss this petition.
In the second petition Mr. Muhammad Anwar Buttar, on behalf of Karim Bakhsh, tried to argue that there was no justifica tion for the High Court in reducing the sentences of death awarded to these convicts by the trial Judge to transportation for life, in the circumstances of the case. The High Court, however, had found that there was some provocation offered by the deceas ed to the accused persons, a female relative of whom had been abducted and detained in the house of the deceased, though later the girl was restored. We are unable to hold that the High Court were wrong in exercising its discretion in awarding the lesser sentence, in these circumstances, to the convicts. The petition fails and is hereby dismissed.
Leave refused.
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