Law: Penal Code (XLV of 1860)

Section: 302/34

Law: Constitution of Pakistan, 1973

Section: 185(3)

Penal Code (XLV of 1860)--   ---S.302/34--Constitution of Pakistan (1973), Art. 185(3)--Petition against acquittal--Conviction based on dying declaration made before investigating Officer; ocular testimony of two eye-witnesses and recovery of crime weapon--High Court doubted genuineness of dying declaration and disbelieved presence of eye-witnesses at scene of occurrence--Ocular testimony was also found in conflict with medical evidence--Evidence of recovery was also rejected and accused acquitted--Contentions raised that reasons given by High Court for doubting genuineness of dying declaration were insubstantial, deceased having survived the attack by a few days and there being no reason why he should have within a few hours of occurrence falsely named accused as person who had shot at him; that presence of eye-witnesses found confirmation from fact that they had taken deceased to Police Post, and that mere fact that crime empties and gun recovered from accused were not sent on the same day to laboratory was itself insufficient to compromise the quality of the recovery evidence, particularly when there was nothing to show that Investigating Officer had been dishonest--Leave to appeal granted only against acquittal of accused who was alleged to have fired on deceased and whose implication in occurrence was further supported by recovery of gun from which crime empties recovered from spot were found to have been fired--Bailable warrants directed to be issued against said accused--Petition against others dismissed. ORDER SAAD SAOOD JAN, J.- This is a petition for special leave to appeal from the judgment dated 12-4-83 of the Lahore High Court whereby the conviction and sentences of the respondents, recorded by the Additional Sessions Judge, Sahiwal, on a charge under section 302, read with section 34 of the Pakistan Penal Code, were set aside and they were acquitted. The petitioner is the father of Falak Sher deceased who was alleged to have been killed by ~ the respondents. 2. The occurrence took place on 1-7-79 at about 8 P.M. According to the prosecution, at the relevant time the deceased was on his way back to his village on a tractor after getting it…

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