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Criminal Review Petition No. 8‑R of 1979 out of Jail Petition for Special Leave to Appeal No. 80‑R of 1973, decided on 30th September, 1979.

(On review from order of this Court, dated 10th of March 1979, in J. P. S. L. A. No. 80‑R/78 against the judgment and order of the Peshawar High Court in Criminal Appeal No. 61 of 1978 dated 9th of October 1978).

‑‑ Art. 188 read with Supreme Court Rules, 1956, O. XXVI and Penal Code (XLV of 1860), S. 302‑[Murder‑case]‑Contentions that eye‑witnesses in case were inimical to petitioner and that there was possibility that Investigating Officer might have found a cartridge from gun produced by accused petitioner and then sent gun and empty shell to Fire‑arms Expert for examination‑Held, involve appreciation of evidence which cannot be done at review stage‑Such contentions also do not constitute any ground for review as envisaged by Supreme Court Rules, 1956.‑[Review‑Evidence].

Zafar Mahmood, Senior Advocate and Ch. Akhtar Ali, Advocate‑on- Record for Petitioner.

Nemo for the State.

Date of hearing : 30th September, 1979.

This review petition by Saeedur Rahman is directed against the dismissal by this Court of his Jail Petition (No. 80‑R of 1978).

The petitioner was tried by the learned Additional Sessions Judge, Abbottabad, for the murder of Abdur Rashid by firing at him with a shot gun. He was found guilty and sentenced, inter alia, to death. His appeal before the High Court failed. Thereafter, he filed a petition before this Court, through jail. The case was examined by two Judges of this Court and finding no merit in the petition the same was dismissed on 10th of March, 1979. The petitioner has now filed the present petition for review, through an Advocate.

Briefly stated, the prosecution case is that on 24th of February 1977 at about 4‑30 p.m. Muhammad Rafiq, P. W. brother of the deceased, who is a young boy studying in the 10th class, was basking in the sun on the roof of his house when he saw Saeedur Rahman accused‑petitioner firing at Abdur Rashid (deceased) with a shot‑gun. Abdur Rashid was hit and fell down and the petitioner ran away. He was seen running away with his shot‑gun by Muhammad Yaqub P. W. and Manzoor Elahi (not produced). Mohammad Rafiq ran to his uncle Ghulam Rahmani P. W. and informed him about the incident. The latter came to the spot and found Rashid lying dead. He then went to the police station and lodged the F. I. R. During the investigation an empty 12 bore shell was recovered from the spot. Saeedur Rahman accused‑petitioner was also arrested. He produced his licensed shot‑gun before the Investigating Officer. The Investigating Officer sent the gun and the empty shell to the Fire Arms Expert who reported that the crime empty had been fired from the gun produced by the petitioner. Post‑mortem examination revealed that the deceased had died as a result of the fire‑arm injury. The prosecution case is based mainly on the testimony of Mohammad Rafiq P. W. and Mohammad Yaqub P. W. the recovery of the crime empty and the petitioner's gun which matched each other, and the medical evidence. The petitioner, of course, denied his guilt but the two Courts below found that the prosecu tion case against him stood proved. This Court also, after examining the case, agreed with that view.

The present petition is barred by 31 days and the learned counsel for the petitioner did not make any prayer for condonation of delay before us. We, however, heard it on merits. The main argument urged by him was that Ghulam Rahmani, complainant, had duped the petitioner into transferring him about 24 kanals of land on the promise that he (i.e., Ghulam Rahmani, complainant) would declare before the Supreme Court that the parties were closely related and had compromised and forgiven the murder, but since neither he nor Ghulam Rabmani, complainant, came to know of the date of hearing of the jail petition by the Supreme Court, they could not appear and the aforementioned statement could not be made by Ghulam Rahmani. Not much weight can be given to this submission as it is well known that no date is fixed for hearing in jail petitions. Moreover, the learned counsel has failed to support the aforementioned assertion either by producing Ghulam Rahmani, complainant in person or any affidavit or statement by him with respect to the alleged compromise. We cannot, therefore, give any consideration to this plea. The petitioner may, if so advised, raise this plea in his mercy petition supported by proper material to establish that the complainant party has forgiven the petitioner.

The learned counsel also submitted that the eye‑witnesses in this case were inimical to the petitioner and that there was a possibility that the' Investigating Officer might have fired a cartridge from the gun produced by the petitioner and then sent the gun and the empty shell to the fire‑arm expert for examination. The last mentioned submission appears to absolutely conjectural. In any case, these contentions involve appreciation of evidence, which cannot be done at this stage. Moreover, these do no constitute any ground for review as envisaged by the Supreme Court Rules, 1956. For the foregoing reasons the petition is therefore dismissed.

Petition dismissed.

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