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Petition for Special Leave to Appeal No. 228 of 1973, decided on 1st October 1973.

(On appeal from the judgment and order of the Lahore High Court, dated the 18th of May, 1973, in Criminal Appeal No. 308 of 1971/Murder Reference No. 119 of 1971).

--‑‑S. 302‑Murder‑Occurrence taking place in broad daylight and only one person implicated in crime‑No reason on part of prosecu tion witnesses to falsely implicate accused petitioner‑Ocular evidence consistent as to deceased being killed with a drat by accused and supported by medical evidence‑‑Mere acceptance by doctor of suggestion that injuries could be caused by two different kinds of sharp‑edged weapons, held, does not in any way detract from support given by medical evidence to ocular evidence‑Petition for leave to appeal dismissed.

‑‑ Appreciation of evidence‑Re‑appraisal‑No part of functions of Supreme Court.

‑‑ Art. 186(2)(b)‑Appeal to Supreme Court as of right‑Provision applicable to person sentenced to death etc. by High Court for first time.

Shaukat All, Advocate Supreme Court instructed by Ejaz Ahmad Khan,

Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing: 1st October 1973.

This petition for special leave is from the order of a Division Bench of the Lahore High Court dismissing the appeal of the petitioner and confirming the sentence of death passed on him under section 3;)2 of the Pakistan Penal Code for committing the murder of one Ehsanullah about 15 years old.

The occurrence took place on the 2nd of July 1970 at 11 in the morning and the first information report was lodged at the police station soon after by the maternal uncle of the deceased boy. The occurrence was witnessed by three persons including the complainant P. W. Nazir Ahmad, The ocular evidence has received full support from the recovery of drat (a sickle‑like instrument) with which the murder was committed. It was produced by the petitioner himself and was subsequently found by the chemical examiner to contain human blood. The petitioner was arrested on the 4th of July, 1970, and he led to the recovery of the crime weapon from the ceiling of his cattle‑shed. Among the eye‑witnesses P. W. 10 Ahmad Khan is a completely independent witness. The other two witnesses do not have any previous enmity with the petitioner. In these circumstances there was no reason to disbelieve the ocular evidence, and they were rightly accepted by the trial Court as well as the High Court. It has been contended by Mr. Shaukat Ali that having regard to the distance which separated the witnesses from the place of occurrence and which ranged from 175 feet to 245 feet the witnesses would surely have been able to prevent the murder, but the fact that they did not do so showed that they were not present at the spot. We are unable to accept this contention. The witnesses have categorically stated that they were present at the spot and saw the occurrence. Their presence at the spot was not challenged.

Mr. Shaukat Ali has next contended that inasmuch as the Medical Officer Dr. Mehtab Akhtar has stated in his cross‑examination that it is possible that some of the injuries out of the 21 injuries suffered by the deceased could be caused with two different kinds of sharp‑edged weapon, the medical evidence did not support the prosecution case regarding the manner of occurrence. The ocular evidence is consistent that the deceased was killed with a drat bar the petitioner and it has received support from the medical evidence. The mere fact that the doctor has accepted the suggestion that the injuries could be caused by two different kinds of sharp. edged weapon does not, in any way detract from the support it gives to the prosecution case.

The occurrence took place in broad daylight, and only one single person has been implicated in the crime. There is no reason on the part of the witnesses to falsely implicate the petitioner. In these circumstances we do not think there is substance in this contention.

The contentions raised by Mr. Shaukat Ali related to the appreciation of evidence which it is no part of the function of this Court to reappraise.

Mr. Shaukat has also contended that the petitioner had a Constitutional right of appeal without the necessary leave from this Court inasmuch as the confirmation of the death sentence by the High Court really amounted to awarding the sentence of death by the High Court.

In the present case the petitioner was convicted and sentenced to death by the learned Sessions Judge, Sialkot, and the sentence as required under section 374 of the Code of Criminal Procedure was confirmed by the High Court. The Constitutional appeal as of right contemplated under Article 186(2)(6) of the Interim Constitution is applicable to a person who has been for the first time sentenced to death, etc. by the High Court.

This view is consistent with the view taken by the majority decision of this Court in the case of Rashid Ahmad v. Stare (P L D 1969 S C 362).

We, accordingly, reject this contention, and refuse leave to appeal. The purported appeal is treated as a petition for special leave to appeal and it is dismissed.

Petition dismissed.

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