1. ANWARUL HAQ, C, J.-This petition seeks a review of the order of this Court dated the 7th of January, 1978, by which Criminal Petition for Special Leave to Appeal bearing No. 74-R of 1977, was dismissed.
2. The Petitioner, Niaz Muhammad was convicted, along with another accused person, named Muhammad Khan, by the learned Sessions Judge, Sargodha, under sections 302 and 37 of the Pakistan Penal Code, read with section 34 thereof for committing the murder of one Atta Muhammad and causing injuries to Abdur Rehman. The petitioner was sentenced to death on the charge of murder, while his co-accused was awarded imprisonment for life. Sentences of fine and imprison--ment were also imposed on the other count. These convictions and sentences were upheld by a Divison Bench of the Lahore High Court.
3. According to the prosecution, the murder was committed on the night between the 23rd and 24th of June, ) 1972, in the courtyard of the house of the deceased. The petitioner was said to be armed with a rifle and his co-accused with a shot-gun. At the trial the prosecution placed reliance on the eye-witness account given by the inmates of the house, namely, Shah Muhammad, Mst. Fateh Bibi (mother of the r deceased), Msl. Manzoor Khatoon wife of the deceased, and Abdur Rehman (a minor son of the deceased), who was also injured during the incident. Evidence was also led as to the motive and the abscondence of the petitioner. The learned trial Judge placed reliance only on the ocular evidence of Shah Muhammad and found corroboration thereof in the abscondence of the accused. The High Court upheld these findings and also found that the motive had been proved on the record.
4. At the hearing of the petition only two grounds were urged before this Court, namely :- (a)That the High Court was in error in disagreeing with the learned trial Judge that the prosecution had failed to prove motive.
5. (b)That the occurrence having taken place in the middle of the night, the eye-witnesses could not be said to have with any degree of certainty identified the accused.
6. Both these contentions were, however, repelled by reference to the evidence available on the record, and consequently the petition for leave to appeal was dismissed.
7. Mr. Mujeeb-ur-Rchman, learned counsel for the petitioner, con--tends that the order needs to be reviewed for the reason that this Court did not examine the contention raised in paragraph (b) of the grounds of appeal to the effect that abscondence of the petitioner had not been satisfactorily proved on the record, and could not, therefore, provide corroboration of the interested testimony of Shah Muhammad, and that there is also an error patent on the face of the record inasmuch as no bullet was extracted from the body of the deceased, as stated in the order under review.
8. We find that the first ground now taken on behalf of the petitioner was not pressed at the time of the hearing of the petition, and it was for this reason that the Court proceeded on the basis that the abseon--dence had been satisfactorily proved on the record. The learned counsel has not been able to give any explanation a, to why the contention now sought to be raised was not urged at the proper time We are not inclined to re-open the question, as no satisfactory explana--tion has been put forward for its omission at the earlier hearing. It may be mentioned that on the previous occasion the case was argued by a very experienced and able lawyer, who has since expired; and it, therefore, appears that he must have omitted to press this ground for cogent reasons.
9. As to the slight error in regard to the description of medical evidence, it appears that nothing turns on it. According to the Doctor a number of cardboards and 12 metallic pieces were extracted from different parts of the dead body. Whereas in the order under review it is stated that cardboards metallic pieces and a bullet were recovered. The real point is that on an examination of the description of the injuries sustained by the deceased the conclusion drawn was that they had been caused by two different types of weapons, and this conclusion did not rest on the fact that a bullet was extracted from the body. This error has not, therefore in any manner, affected the conclusions reached by this Court, as to the veracity of the prosecution case.
10. As a result, the petition fails and is hereby dismissed.