' CH. MUHAMMAD ARIF, J.---This petition under clause (3) of Article 185 of the Constitution of Islamic Republic of Pakistan, 1973 by Haji Muhammad Banaras, real brother of Muhammad Anwar alias Kala, deceased in a murder case having been examined as a prosecution witness therein, is directed against the judgment, dated 12-3-1996 of Peshawar High Court, Abbottabad Bench whereby respondent-Muhammad Ayaz remained successful in challenging his conviction under section 302(b), P.P.C. And sentence to death as Ta'zir with a fine of Rs,40,000 or in default of payment of fine, to undergo two years' R.I.
2. Briefly stated the facts leading to this petition are that concerning an occurrence, dated 29-4- 1992 having taken place within the Revenue Estate of Donali Pul village Bheri Bandi in which petitioner's brother Muhammad Anwar alias Kala was done to death at about 20-00 hours, the dead body of Muhammad Anwar was brought at the Emergency Ward of Civil Hospital, Haripur at 21-30 hours. A.S.-I. Muhammad Nazir (P.W.13) recorded the report of the petitioner to the effect that at 20-45 hours he was present in his house at Donali Pul village Bheri Bandi and was informed by Yousaf (P.W.12) that he alongwith P.W. Allah Ditta (not examined) and Muhammad Anwar deceased were going to see their maternal uncle, Kala Khan son of Abdul Ghaffar. When they reached Eid Gah of village Bheri Bandi they saw respondent Muhammad Ayaz who had wrapped a 'Chadar' around him. Muhammad Ayaz called the deceased over and listen to him. When Muhammad Anwar walked toward's his callers, both of them walked ahead. At about 20-00 hours when they reached 'Gaarh', Yousaf and Allah Ditta both sat down to urinate. They heard report of a shot simultaneously with a cry of Muhammad Anwar deceased that Ayaz had killed him. P.Ws.
Yousaf and Allah Ditta rushed towards them but the respondent made good his escape. He hurriedly came out from his house and found Anwar to be seriously injured. The injured told the complainant that he had been fired upon by respondent Ayaz. Thereafter, they started for Haripur but the injured succumbed to his injuries near village Mohra. Haji Muhammad Banaras stated that he was totally ignorant of the enmity between the assailant and the deceased.
3. The aforesaid writing (Exh.P.A.1) was subsequently incorporated into F.I.R. No,379, dated 29-4-1992 of Police Station Haripur (Exh.P.A.). It was during the investigation that in addition to preparation of injury sheet of the deceased (Exh.P.W.7/3), inquest report (Exh.P.W.7/2), recovery of blood-stained earth (Exh.P.5), white Chaddar of deceased (Exh.P.1), three blood-stained stones (Exh.P.4) and two pellets and one wad (Exh.P.3) that the prosecution also collected evidence regarding motive for the present occurrence to the effect that prior thereto deceased Muhammad Anwar had a quarrel with the accused. During the month of Ramzan, accused Muhammad Ayaz was fired upon near the village graveyard by some unknown persons and that he suspected the deceased in this case, of the said firing.
3-A. Respondent was also responsible for pointing out the place where-from he fired at the deceased and the place where the deceased was at that time. This happened on 3-5-1992 i,e, two days after his arrest on 1-5-1992.
4. Eye-witness account in the case came from Muhammad Yousaf (P.W.12) and the medical evidence consists of the statement of Doctor Shaukat Mahmood (P.W.7) who conducted the post- mortem examination of the dead body of Muhammad Anwar and found fire-arm injury vide postmortem report Exh.P.W.7/1.
5. The prosecution case against the accused revolves around; (1) medical evidence; (2) evidence of motive (P.W.5); (3) recovery of shot gun (Exh.P.9) at the instance of the accused; (4) oral dying declaration made by the deceased before P.Ws. Haji Muhammad Banaras, Kala Khan and Muhammad Yousaf and (5) report of Chemical Examiner (Exh . P. W .13/6).
6. The trial Court relying upon the prosecution evidence and considering it in juxtaposition with the defence-plea to the effect that it was a blind murder, came to the conclusion that even the related P.Ws. In this case had no reason whatsoever to falsely implicate the respondent for the commission of the crime; that the trail of blood having been found from point No,12 to point No,13 of the site plan Exh.P.B and the report of chemical examiner being positive, show that the deceased was quickly brought to the house of P.W. Kala Khan; that the medical evidence also supports the prosecution case to the effect that at the time of making dying declaration before P.Ws. Kala Khan and Muhammad Banaras he had not lost consciousness or gone into comma. It held that it was pre- planned murder and no ground for lesser punishment has been made out.
7. Criminal Appeal No,34 of 1995 was allowed by the Peshawar High Court directing acquittal of the respondent, holding that there being no light around the place of occurrence, the identification of the accused "- - - is rather impossible - - -"; the identification by voice cannot be relied upon and that the prosecution case is not free from doubt in that related and friendly persons have appeared in support of the same.
8. We have heard Sardar Muhammad Ishaq Khan, Senior Advocate Supreme Court for the petitioner and Ch. Akhtar Ali, Advocate-on-Record for respondent No, l/ caveator. We are inclined to grant leave to appeal to the petitioner to consider the following questions:--
(1) Whether in the facts and circumstances of this case the question of identification of the accused did require any further probe than the hearing of the voice of the accused who was already known to the prosecution side/P.Ws.?
(2) Has the case of the prosecution not been considered in its true perspective in that the witnesses in the case had no enmity with accused who had been awarded capital punishment by the trial Court?
(3) Could the reliance placed by the trial Court on the oral dying-declaration of the deceased before the P.Ws., be justifiably rendered ineffective by the High Court?
' Let bailable warrants of arrest shall issue against respondent Muhammad Ayaz in the sum of Rs,50,000 with one surety in the like amount to the satisfaction of the trial Court.