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Criminal Jail Review Petition No. 4‑R of 1983, heard on 10th December 1984.

(Against the judgment of the Supreme Court of Pakistan dated 14‑12‑1982 in Criminal Appeal 63 of 1979).

Art 188‑Supreme Court Rules, 1980, O. XXVI‑Review petition Limitation‑Petition time‑barred by 61 days‑Delay condoned in view of death sentence involved in case.‑[Limitation‑Review by Supreme Court].

---Arts. 185(3) & 188‑Supreme Courts Rules, 1980, O. XXVI‑‑Penal Code (XLV. of 1860), S. 302/34‑Murder‑Sentence‑Appeal‑Review Supreme Court in appeal holding that direct charge existed against petitioner for having effectively fired, at deceased and that his case was distinguishable from that of another co‑accused whose death sentence was altered to imprisonment for life‑Such finding based on evidence of eye‑witness who lodged report in case in police station‑Review petition found to be without force and dismissed.‑[Review by Supreme Court].

Agha Aziz Ahmad Khan, Advocate Supreme Court for Petitioner.

Bashirullah Khan, A. A.‑G. (N: W.F.P.) for the State.

Date of hearing : 10th December, 1.983.

This petition is barred by time by 61 days but as it involved the death sentence awarded to the petitioner, the delay is condoned.

2. The petition is directed against the judgment of this Court, dated 14‑12‑1982 whereby Criminal Appeal 63 of 1979 filed by the present petitioner Sher Ali was dismissed.

3. Sher Ali, petitioner, along with Gul Nawaz and Mir Nawaz absconder, had been charged for the murder of Fazal‑ur‑Rahman and during the same incident Shirin Jan P.W. also sustained gun‑shot wound on I1‑2‑1976 at about 3 p.m. in the limits of village Begokhel, District Bannu. Sher Ali and Mir Nawaz were charged for effectively firing at the deceased. Gul Nawaz was charged for firing at Shirin Jan, Sher Ali and Gul Nawaz were both sentenced to death under section 302/34, P.P.C. and a fine of Rs. 1,000 or in default, to one year R. 1.and were also awarded 7 years' R. I. under section 307/34, P.P.C. and a fine of Rs. 500 or in default, six months' R. I. Their appeal was dismissed by the High Court on 22‑3‑1978. Leave was granted vide order of this Court dated 2‑5‑1979.

4. After hearing the Appeal No. 63 of 19.79 it was held that Gul Nawaz did not fire at the deceased in spite of the fact that he was equally armed like the other accused and instead he had fired a shot at shirin Jan P.W. Thus, he was not directly responsible for the death of Fazlur Rahman deceased, and, therefore, his death sentence was altered to imprisonment for life and a fine of Rs. 10,000, or in default, to suffer 5 years' R. 1.and another sum of Rs. 1,000 as compensation under section 544‑A, Cr. P.C. or in default to six months' R. I.

5. It was held in the order sought to be reviewed that there is a direct charge against petitioner for having effectively fired at the deceased, and, therefore, his case is distinguishable from that of Gul Nawaz. Consequently the death sentence awarded to Sher Ali petitioner was upheld.

6. We have gone through the evidence and find that the finding by this Court are based on the evidence of eye‑witness Shirin Jan who had lodged the report in the case in the Police Station, Lakki Marwat. In this report it was stated that Mir Nawaz and Sher Ali both fired at the deceased Fazalur Rahman, he rushed towards his brother‑the deceased when Gul Nawaz fired at him injuring him on his right elbow. The same is the statement of this witness at the trial. Having relied on this statement, we find no force in this Review Petition which is, accordingly, dismissed.

S. Q. Petition dismissed.

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