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Petition for Special Leave to Appeal No. K‑1 of 1970, decided on 30th January 1970.

(On appeal from the judgment and order of the High Court of West Pakistan, Karachi Bench, dated the 18th November 1969, in Confirmation Case No. 21 of 1969/Criminal Appeal No. 164 of 1969).

Art. 58(3)‑Criminal Petition for Special Leave to Appeal to Supreme Court‑High Court fully discussing evidence upon correct principles‑Points raised merely going to appreciation of evidence‑Appreciation of evidence, held, not as a rule undertaken by Supreme Court‑Petition dismissed.

N. K. Jatoi, Advocate Supreme Court instructed by Muhammad Ibrahim Memon, Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 30th January 1970.

‑The petitioner was tried for the murder of one Amir Bakhsh and convicted under section 302 of the Pakistan Penal Code by the Sessions Judge, Jacobabad who sentenced him to death. On appeal and reference a Division Bench of the High Court of West Pakistan, Karachi Seat, has upheld the conviction and confirmed the sentence. The peti tioner now seeks special leave to appeal. Learned counsel appearing in support of the petition contends that the Courts below have completely misdirected themselves by failing to notice that the prosecution witnesses had attempted to shift the place of the incident from in front of the shop of one Mohabat to another place in front of the shop of Mohammad Parial (P. W: 3). In support of this con tention reliance was placed on the evidence of Jumo (P.W.1), the father of the deceased. What the said witness had stated was as follows

"When we came near the shop of Muhabat, my son was 5‑6 paces behind me. Hazurbux was with me. I heard sound of feet of some one hurriedly walking. We looked back, and saw the accused present in Court giving hatchet blow to my son at the back of his neck."

This does not mean that the incident took place in front of the shop of Mohabbat. All that Jumo says is that when he was near the shop of Mohabbat his son who was 5 or 6 paces behind him, was attacked.

Learned counsel attempted also to make use of the first information report filed by Jumo where according to the official copy he is alleged to have said "that near the vegetable shop of Mohabbat Jaffery, Muhammad Salleh alias Salleh son of Isso, by caste Bhatti, resident of village Rais Noor Mohammad Bhatti, who had a hatchet in his hand, all of a sudden, suddenly came over my son Amir Bux from behind and abusing suddenly gave hatchet blow".

This translation, the learned Judges of the High Court, who were both acquainted with Sindhi, have pointed out, was not a correct translation and should have read as follows

"When we passed through the street from west to east near the vegetable market of Thul town Muhammad Salleh alias Salleh son of Isso by caste Bhatti resident of Rais Nur Muhammad Bhatti who was armed with a hatchet suddenly emerged from the shop of Mohabbat Jafri and pounced upon my son from behind. . . "

It is not correct, therefore, to suggest that the prosecution had attempted to shift the place of the incident. Parial's shop is in fact situated about 5 or 6 paces to the east of the shop of Nabi Bakhsh.

Learned counsel next sought to contend that if the incident took place on the road running from east to west in front of the shop of Mohabbat Jafari then the place of incident was not visible from the shop of Parial. On a reference, however, to the site inspection note of the learned Sessions Judge it appears that he found the place of vardat to be 2 paces in front of the shop of Parial and the vardat, according to this note, was not visible from the shop of Nabi Bakhsh, it appears, was a person who had since the incident purchased the shop of Mohabbat Jafri. This note clearly indicates that the vardat was visible from the shop of Parial and even to persons standing on the outer door of the mosque on the road running in front of the vegetable market.

Learned counsel also suggested that Parial had been subse quently set up as he had not been named in the First Infor mation Report as a witness and according to the Mashir Pir Shah (P. W. 5) he was not present in the shop when the police saw the vardat. Parial (P. W. 3) himself stated that he was sitting in the shop at the time and saw the incident. The absence of his name from F.I.R. does not discredit him. Jumo, the complainant may not have then come to know that the witness had seen the incident, because, the latter closed his shop after the incident and went away.

This incident occurred in broad daylight in a bazar and has been supported by at least two persons, namely, Hazurbux (P. W. 2) and Parial (P. W. 3) who were in no way related to the deceased. It also does not appear that they were in any way inimical to the accused. All that was suggested to them was that they had been set up by one Daman Shah whose Hari the deceased was. But it does not appear that these witnesses had any connection with the said

Daman Shah. Parial actually denied that he knew Daman Shah. The case against the petitioner rests mainly on the ocular testimony of the witnesses.

The High Court has fully discussed the evidence upon correct principles and we can find no reason to interfere with the assessment of the evidence made by the Courts below. All the points raised go merely to the appreciation of evidence which is not, as a rule, undertaken by this Court. This petition is, accordingly, dismissed.

Petition dismissed.

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