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Criminal Petition for Special Leave to Appeal No. 297 of 1978, decided on 3rd August 1978.

(On appeal from the judgment and order of the Lahore High Court dated 19th June 1978 in Criminal Miscellaneous No. 1‑B of 1978 in Criminal Appeal No. 1056 of 1977).

Criminal Procedure Code (V of 1898

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----S. 426‑Appeal‑Sentence, suspension of‑High Court finding discrepancies in dying declaration about role played by respondent Trial Court not inclined to believe eye‑witnesses except to extent of number of shots fired at deceased by accused‑No recovery effected from accused respondent and trial Court finding it possible that accused respondent may not have fired at deceased‑Suspension of sentence ordered by High Court in view of appraisal of evidence by trial Court requiring to be re‑examined‑View taken by High Court, held, both reasonable and within discretion and no case made out for grant of special leave‑Penal Code (XLV of 1860), S. 302. [Appeal (criminal)‑Bail].

D. M. Arbey, Advocate and S. inayat Hussain Shah, Advocate‑on Record for petitioner.

Nemo for Respondent

Date of hearing: 3rd August 1978.

.‑‑The first respondent and one Rafique were tried and convicted for murder. And, for the purpose of this petition, it is sufficient to state that the Sessions Court sentenced the first respondent to life imprisonment. The first respondent filed an appeal in the Lahore High Court against his conviction and together with the appeal he filed an application for the suspension of his sentence pending the . hearing of his appeal. The appeal was admitted. Further, as the sentence of imprisonment wag suspended by a Division Bench of the Lahore High Court by its order dated, 18‑6‑1978, the petitioner has filed this petition for leave.

According to learned counsel, the prosecution case against the first respondent had been amply proved because it was based on the dying declaration of the deceased, which was supported by ocular evidence. However, in allowing the first respondent's application for bail, the learned Judges of the High Court referred in their order to the discrepancies in the dying declaration about the role played by the first respondent in the occurrence. Next as to the ocular evidence, the learned Judges observed

"About the ocular testimony the trial Court's finding is that it was not inclined to believe the eye‑witnesses except to the extent they had stated the number of shots fired at the deceased by each accused.

In other words, learned counsel for the petitioner wants us to draw the inference that even the trial Court was doubtful as to whether Liaqat Ali petitioner had in fact fired a shot at the deceased or as to whether or not it had hit him. Needless to say that no recovery had been effected from Liaqat Ali petitioner. It is observed, by the trial Court that It is possible in view of declaration that the accused Liaqat may not have fired any shot at the deceased.

In view of these observations by the trial Court, the High Court suspended the first respondent's sentence.

The sentence was suspended, because the High Court was of the view' that the appraisal of evidence by the trial Court required to be re‑examined as it might be contrary to the law repeatedly laid down by this Court. Without going into the merits of the case, we would only observe that the, view taken by the High Court was both reasonable and within its discretion.

Therefore, no case has been made out for the grant of special leave and the petition is dismissed.

Petition dismissed.

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