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Criminal Petition for Special Leave to Appeal No. 288 of 1968, decided on 30th January 1970.
(On appeal from the judgment and order of the High Court of West Pakistan, Lahore, dated the 9th October 1969, in Criminal Appeal No. 868 of 1968/Murder Reference No. 23 of 1969).
Art
58(3)‑Grounds raised in support of petition for Leave to Appeal going to mere appreciation of evidence‑Interference by Supreme Court, held, not warranted in circumstances‑Leave to Appeal refused.
G. M. Mirza, Senior Advocate Supreme Court (M. A. Khan, Advocate Supreme Court with him) instructed by Masud Akhtar Sheikh, Advocate‑on‑Record for Petitioner.
Nemo for the State.
Date of hearing : 30th January 1970.
‑It has been found by the Additional Sessions Judge, Mianwali, by his order dated the 2nd December 1968, that the petitioner shot dead his co‑villager Mohammed Aslam at Jhikki Degarwela (about 6 p. m.) in Wandha Jalanderwala, P. S. Sadder, Mianwali. Conviction was recorded under section 302, P. P. C. and penalty of death awarded to the petitioner which has been on appeal and reference under section 374, Cr. P. C., confirmed by a Division Bench of the High Court.
F. I. R., was recorded on the basis of the dying declaration made by the deceased in the Civil Hospital at 7‑20 p.m. He charged therein the petitioner for effectively hitting him with a rifle shot and his companion for having fired a gun shot which missed him. The occurrence took place in daylight in front of the Baithak of Haqdad Khan, P. W. uncle of the deceased, and was witnessed by his son Arsla Khan P. W. and Alam Khan P. W. None had a motive of his own to implicate the petitioner nor was any other circumstance elucidated in their cross‑examination to doubt their credibility.
The High Court did not rely on the dying declaration, but acted on the oral testimony of the eye‑witnesses and the abscon sion of the petitioner. He was an army personnel and had come to the village on leave from 7‑8‑1968 to 20‑8‑1968. He, however, did not report on duty on the 21st August 1968, and was declared a deserter.
All the grounds raised in support of the petition for leave to appeal go to mere appreciation of evidence which do not warrant interference by this Court.
The petition is dismissed.
Leave refused.
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