Law: Evidence Act (I of 1872)

Section: 32

Law: Penal Code (XLV of 1860)

Section: 302

(a) Evidence Act (I of 1872), ---S. 32-Dying declaration-- Prosecution evidence materially discrepant in respect of time of recording dying declaration and visible interpolation appearing in a material document-Doctor an important witness to dying declaration adopting contradictory positions at different stages of proceeding--- Dying declaration excluded from consideration in circumstances. (b) Penal Code (XLV of 1860), S. 302-Eye-witnesses having no motive to falsely implicate accused; almost equally related to both parties and possibly more interested in accused being their co-villager than in deceased a mere outsider coming to stay in village for a short tune-Witnesses impartial and truthful-Accused making himself scarce after occurrence and becoming deserter from army---A pointer in direction of his guilt-Death sentence maintained hi circumstances. Habibullah and others v. The State P L D 1969 S C 127 and Siraj Din v. Kala and another P L D 1964 S C 26 distinguished. Lalu v. The State P L D 1959 S C (Pak.) 258 eel. Date of hearing: 9th October 1969. JUDGMENT MUHAMMAD AFZAL ZULLAH, J.-By his judgment, dated 2nd December 1968, the learned Additional Sessions Judge, Mianwali has convicted Haq Dad Khan under section 302, P. P. C. and has sentenced him to death, for the charge of the murder of one Aslam Khan in the area of village Wandha Jalandarwala, District Mianwali, on 14th August 1967. The convict has appealed and the reference under section 374, Cr. P. C. for the confirmation of death sentence is also before us. This judgment will dispose of both the matters. 2. The prosecution case is that the deceased who belonged to village Wandha Chalbalianwala had gone to village Wandha Jalandarwala to stay with his maternal uncle Haq Dad Khan son of Fateh Khan (P. W. 8). After about 10/12 days .on 14th August 1967 at about jhikki digerwela, Haq Dad Khan P. W., his fson Arsala Khan (P. W. 9) and the deceased were sitting in front of the baithak of Haq Dad Khan P. W., when the deceased went out to urinate. Haq Dad Khan appellant and his younger brother Abdul Jabbar Khan (since acquitted) carne armed with firearms. Haq Dad Khan fired a rifle shot at the deceased which…