Law: Constitution of Pakistan, 1962

Section: 58

(On appeal from the judgment and order of the High Court of West Pakistan, Peshawar Bench, dated the 29th October 1969, in Criminal Appeal No. 144 of 1968). (a) Criminal Procedure Code (West Pakistan Amendment) Act (XVII of 1964), S. 23-Misjoinder of charges, in absence of prejudice to accused, only an irregularity-Point of misjoinder neither taken in trial Court nor even in appellate Court but raised for first time before Supreme Court-Facts negative contention that accused was prejudiced by misjoinder of charges-No substantial prejudice disclosed as being caused to accused, misjoinder of charges, held, did not vitiate trial-Penal Code (XLV of 1860), S. 302: (b) Constitution of Pakistan (1962), Art. 58(3)-Questions going to appreciation of evidence-Cannot furnish adequate grounds for grant of special leave to appeal. (c) Dying declaration-Dying declaration same as any other item of evidence. Date of hearing : 24th March 1970. JUDGMENT HAMOODUR RAHMAN, C. J.-The petitioner has been convicted for the murders of his step brother and cousin sister. The brother Mohammad Akbar was killed in the early hours of the morning of the 15th August 1961 when he was on his way to the mosque to offer his morning prayers. The petitioner, it is alleged, was stand ing in a gully from where he fired twice in succession at the deceased and hit him on the back. This was witnessed according to the First Information Report by two persons, Abdul Ghani and Alif Din. The motive for the crime alleged is that there was a dispute between them over their joint lands. The cousin sister, Mst. Amina Bibi, was killed on the same day but somewhat later when she was returning to the village from the fields. She saw the petitioner coming from in front armed with a Topak and accompanied by another unknown person. She asked him as to why they had murdered her brother Mohammad Akbar whereupon the petitioner fired at her and injured her. She was carried to the Police Station. There she made her own dying declaration. Her statement was recorded in the same First Information Report which was earlier recorded on the statement of Mohammad Akbar. It appears that Mst. Amina Bibi was brought to the Police…