' FAZAL 1LAHI KHAN, J.---This is a Jail Petition for leave to appeal against the judgment of Peshawar High Court, Peshawar dated 27-2-1989 whereby the petitioner's appeal against the judgment of the Additional Sessions Judge-II, Swabi dated 22-3-1988 was dismissed and the Murder Reference was accepted.
2. On 10-2-1985 Rad Ali son of Karim Khan, deceased aged about 25/26 years, resident of Village Kalu Khan was brought by his father to Civil Hospital, Kalu Khan in injured condition and the injured in presence of his father and Lady Doctor Fahima fhtesharn made a statement before Amir Muhammad Khan, A.S.I. (P.W.11) that at the time of occurrence he along with his father was proceeding to his house and when they reached Village Jolagano Kothey, Mehtab Khan son of Tayee Khan (petitioner) fired at him with a "Landiwal Tamacha" with intention to kill him and was injured where after the accused decamped from the spot. Regarding the motive it was stated that the petitioner had developed illicit relations with the daughter of Fazal Rehman one of his relations and he (complainant) had asked the accused to desist from visiting her house. After recording, the statement was read over to him who after admitting it correct thumb-impressed the same. As the injured was in serious condition, therefore, he obtained the signature of Lady Doctor Fahima Intesham and thumb-impression of Karim Khan on the statement. The Murasila was sent to the police station for registration of the case. The Murasila Exh.PA/1 is correctly incorporated in F.I.R.
Exh.PA, dated 10th February, 1985 by Muhammad Irshad, S.H.O., (P.W.10) under section 307, P.P.C. The injured succumbed to his injuries, therefore, the section of law was changed from 307 to 302, P. P.0 .
3. As the accused avoided his arrest, warrant under section 204, Cr.P.C. Was issued against him.
However, he was produced by Malik Abdul Ghayas, M.P.A, in police station before Amir Bahadur Khan, S.H.O., Police Station Kalu Khan (P.W.6) who arrested him on 13-10-1986. Subsequently a supplementary challan was submitted against him.
' The prosecution in support of its case relied on the dying declaration recorded by Amir Muhammad Khan, A.S.I. (P.W.11) supported by the statement of Lady Doctor Fahima Ihtesham (P.W.8) and Dr. Noor Zaman (P.W.9). Corroboration was sought from circumstantial evidence furnished by Amazai (P.W.5), the motive and ascendance of the accused. The accused in his statement denied the allegation and pleaded to be innocent.
' The learned trial Judge relying on the dying declaration, medical evidence and motive corroborated by the accused's ascendance after having found the prosecution case proved against the accused beyond any reasonable doubt and in absence of any mitigating circumstances imposed the normal penalty of death on the accused subject to confirmation by the High Court.
' The Jail Petition filed by the accused and the murder reference both came up for hearing before a learned Division Bench of the Peshawar High Court. The learned High Court on reappraisal of the entire evidence dismissed the appeal and confirmed the death sentence.
4. We have heard learned counsel for the petitioner and gone through the evidence on record. The learned counsel for the petitioner contended before us that the dying declaration is doubtful for the reason that Lady Doctor Fahima Ihtesham did not state in her statement that dying declaration was read over to the deceased and when he had admitted it correct before he thumb-impressed the same. It was further contended that the occurrence took place at night in absence of any evidence that identification of the accused was possible it would not be safe to base conviction on the dying declaration alone as deceased nursed grievance against the petitioner. After due consideration we find no merits in the contentions of the learned counsel. A.S.I. Amir Muhammad (P.W.11) who recorded the dying declaration has clearly stated that he had read 'over the statement to the injured who after admitting it correct thumb-impressed the same. The Lady Doctor is riot supposed to have deposed about the aforementioned fact. Lady Doctor Fahima Ihtesham in her statement has deposed that the injured was in full sense when he was brought to the hospital and when his statement was being recorded by Amir Muhammad, A.S.I. The dying declaration is straightforward and has been found truthful by Courts below. The same is fully corroborated by other prosecution evidence. Regarding identity, the accused was known to the deceased and the P.W., therefore, the question of misidentify would not arise in the instant case, as the accused was co-villager of the deceased and the P.W.
5. The learned High Court has, therefore, rightly held that prosecution has established its case beyond any reasonable doubt and that there was no B mitigating circumstance in altering the sentence. There is, therefore, no merit in this petition and the same is dismissed.
6. It may, however, he pointed out that in Eid Muhammad v. The State (PLD 1993 SC 17) the following decision was granted in Para. 22 of the judgment which is reproduced as under:-- "In view of the discussion above we are of the view that the department's initial construction of the Amnesty Order of 1988 was in accordance with law, legal and proper. In the circumstances, we accept the various petitions on the subject under discussion and set aside the view taken in the case of Ahmed alias Ahmun (1991 PCr.LJ 1445) and restore the benefit of amnesty to all those who had been sentenced to death by Courts up to 6-12-.1988, irrespective of the confirmation of the sentence of death by the higher. Courts in appeal or otherwise "
' If petitioner has still any grievance he can approach the High Court for his redress. The contention of the learned counsel that death sentence was awarded to the petitioner by the learned Additional Sessions Judge on 22-3-1988. Before 7-12-1988, though the sentence of death had not yet been confirmed by the High Court, was continued but as a result of judgment of certain Judge the convict was put back in the death cell. In view of the judgment in Eid Muhammad v. The State (PLD 1993 SC 17 at 31) the petitioner's sentence of death is commuted to life imprisonment.