Law:

Section:

(a) Penal Code (XLV of 1860), S. 302-Murder-Special Leave to Appeal to Supreme Court against conviction-Two persons P and S tried on murder charge-P convicted and S acquitted by trial Court-High Court, in appeal, confirming sentence of death passed on P and setting aside acquittal of S anti ordering his re-trial-­Supreme Court while granting Special Leave to Appeal to S, granted leave to P as well, both having been implicated in same occurrence. (b) Writness-Evidence-Statements of witness before Police or committing Court-Not substantial evidence-Penal Code (XLV of 1860), S. 302. (c) Penal Code (XLV of 1860), S. 302-Murder-Accused acquitted of murder charge by trial Court-High Court setting aside acquittal and ordering re-trial-Supreme Court, however, set aside order of re-trial on finding that considerable time elapsed between date of occurrence as well as since date of his acquittal and there was therefore no likelihood of witnesses being available and re-trial, in circumstances, likely to be an exercise in futility. Sheo Shorup v. The Emperor A I R 1934 P C 22 and Abdul Majid v. Superintendent and I Remembrance of Legal Affairs Government of East Pakistan P L D 1964 S C 422 ref. ' Khan Abdul Qayyum Khan, Senior Advocate Supreme Court instructed by Muhammad Nazar Khan, Advocate-on-Record for Appellants (in both Appeals). Abdul Waheed, Advocate Supreme Court instructed by S. Inayat Hussain, Advocate-on-Record for the State (in both Appeals). Dates of hearing : 21st and 22nd October 1971. JUDGMENT SALAHUDDIN ARMED, J.-These two appeals by special leave are from an order of the erstwhile High Court of West Pakistan, Lahore, maintaining the conviction and confirming the sentence of death passed on appellant Phulail Khan under section 302 of the Pakistan Penal Code and setting aside the order of acquittal of appellant Shah Wali of the charge under section 302, P. P. C. and ordering his retrial. Leave was really granted in the case of Shah Wali to examine whether the High Court acted on correct principles as enunciated by the Privy Council in the case of Sheo Shorup v. The Emperor (AIR 1934 P C 2.), and by this Court in the case of Abdul Majid v. Superintendent and…

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