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Criminal Petition for Special Leave to Appeal No. 568 of 1980, decided on 9th March, 1982.

(Against the judgment of the Lahore High Court, dated 28‑9‑1980, passed in Criminal Appeal No. 807 of 1978).

Constitution of Pakistan (1973)‑

‑‑ Art. 185(3) read with Penal Code (XLV of 1860), S. 302‑‑[Murder case]‑Leave to appeal‑Appreciation of evidence‑Petitioner's counsel wishing reappraisal of entire evidence and reversion of conclusion arrived at by High Court‑Entire evidence having been taken into consideration by Courts below and they being justified in believing same, case, held, not fit for grant of leave.

Abdul Aziz Qureshi, Advocate Supreme Court with Iqbal Ahmad Qureshi Advocate‑on‑Record for Petitioner.

Nemo for the State.

Date of hearing : 9th March, 1982.

‑Through this petition Ashraf (petitioner) seeks Leave to Appeal against the judgment of a Division Bench of the Lahore High Court dated 28‑9‑1980, dismissing his appeal in a murder case. He was tried for the murder of Ashraf son of Abdul Aziz, by the Additional Sessions Judge, Gujranwala, who vide his judgment dated 28‑8‑1978, convicted him under section 302, P. P. C. and sentenced him to death. The High Court dismissed his appeal and confirmed the death sentence.

Hence this petition.

2. The murder took place on 25‑4‑1972 at 3.00 p.m. at the Tea Stall of one Ghulam Nabi Butt situated on the Hafizabad‑Gujranwala Road. The F. h R. was lodged by Muhammad Iqbal (P. W. 8) at Police Station Ghanta Ghar, Gujranwala, which was recorded by Asadullah Khan A. S. I. (P. W. 2). The formal F. I. R. was registered subsequently at Police Station, City, Gujranwala.

According to the prosecution Ashraf alias Ashri son of Barkat Ali petitioner is stated to have come to the aforementioned Tea Stall and stabbed the deceased with a khanjar in the presence of Muhammad Iqbal (P. W. 8) Muhammad Hussain (P. W. 12) and Khushi Muhammad (since dead), over a petty matter relating to a loan of Rs. 100 taken by the deceased from the accused petitioner.

After occurrence the accused absconded and was ultimately arrested at Peshawar on 13‑6‑1976. During the investigation no crime weapon could be recovered from the accused.

3. At the trial the prosecution relied on the occular testimony of Muhammad lqbal (P. W. 8) and Muhammad Hussain (P. W. 12), the two eye‑witnesses of the occurrence. The third eye‑witness, namely, Khushi Muhammad who was mentioned in the F. I. R. could not be produced as he died before the commencement of the trial. The prosecution also relied on the medical evidence according to which the deceased was found to have suffered six incised injuries, and the evidence of motive. As mentioned above the petitioner was convicted under section 302, P. P. C. and sentenced to death, and his appeal before the High Court failed and the sentence of death was confirmed.

The petitioner has now challenged the above mentioned judgment of the High Court through this petition.

4. We have heard the learned counsel for the petitioner at length and gone through the relevant portions of the evidence on the record.

The only contention raised by the learned counsel was that the testimony of the eye‑witnesses was not reliable inasmuch as Muhammad Iqbal (P. W. 8) is closely related to the deceased, being his maternal uncle, and although Muhammad Hussain (P. W. 12) is an independent witness yet his testimony is not worthy of reliance. He contended further that a reading of the statements of both the eye‑witnesses would show that they do not inspire any confidence and cannot be relied upon to maintain petitioner's convic tion. He also submitted that Muhammad Hussain P. W. was not an eye witness inasmuch as he had not seen the accused giving dagger blows to the deceased but only heard the shriek of deceased and saw the accused running away from the spot with a knife in his hand.

5. Having gone through the statements of both the eye‑witnesses we are not inclined to agree with the submissions of the petitioner's counsel. He merely wants us to reappraise the entire evidence and reverse the conclusion arrived at by the High Court. On going through the impugned judgments we notice that the entire evidence have been taken into consider action by the learned Courts below and we feel that they were justified in believing the same. As such we do not consider this a fit case for grant of Leave.

The petition is, therefore, dismissed as being without any merit.

Petition dismissed.

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