1. HAMOODUR RAHMAN, C. J.-The petitioner has been convicted for the murders of his step brother and cousin sister. The brother Mohammad Akbar was killed in the early hours of the morning of the 15th August 1961 when he was on his way to the mosque to offer his morning prayers. The petitioner, it is alleged, was stand--ing in a gully from where he fired twice in succession at the deceased and hit him on the back.
2. This was witnessed according to the First Information Report by two persons, Abdul Ghani and Alif Din. The motive for the crime alleged is that there was a dispute between them over their joint lands.
3. The cousin sister, Mst. Amina Bibi, was killed on the same day but somewhat later when she was returning to the village from the fields. She saw the petitioner coming from in front armed with a Topak and accompanied by another unknown person. She asked him as to why they had murdered her brother Mohammad Akbar whereupon the petitioner fired at her and injured her. She was carried to the Police Station. There she made her own dying declaration. Her statement was recorded in the same First Information Report which was earlier recorded on the statement of Mohammad Akbar. It appears that Mst. Amina Bibi was brought to the Police Station while the statement of Mohammad Akbar was being recorded at about 6-30 a.m. At the Charsadda Police Station which is about 3 miles away from the place of occurrence. She was carried to the Police Station by Ehsanullah, Peerbadshah, Fazal Mahmood and Faqir Syed.
4. The petitioner absconded after the incident. Proceedings were accordingly drawn up against him under section 512, Cr. P. C. He ultimately surrendered some 61 years later on the 4th December 1967 and claimed that he was innocent. The dying declarations of the two deceased had, it was said, falsely implicated him at the instance of one Abdul Ghani who was his enemy. He explained his long absence by saying that he had gone away to Swat long before the occurrence and was actually serving there in Shafiq Silk Mill but no evidence was produced to support this story.
5. So far as the killing of Mohammad Akbar is concerned, the Courts below did not believe the prosecution witnesses who were produced as eye-witnesses. They relied, however, on the dying declaration of Mohammad Akbar as they found it to have been corroborated by Alif Din (P. W. 18), a completely disinterested person, who had stated that he arrived at the spot soon after the occurrence and was informed by Mohammad Akbar that he was shot by the appellant.
6. It was suggested that since the shots were fired from behind, Mohammad Akbar could not have seen the person who fired the shots. The High Court has, however, taken the view that as two shots were fired, Mohammad Akbar must have after the first shot turned round and seen who his assailant was. As far as Mst. Amina Bibi is concerned there could be no doubt that she saw who her assailant was, because, she was fired at from in front.
7. The High Court did not also accept the contention that the injured could not have been in a position to make the dying declarations. They, accordingly, convicted the petitioner on both counts and sentenced him to death. The petitioner now seeks special leave to appeal.
8. It is firstly contended on his behalf that since the two murders took place at two different times and at two different places, there were independent transactions and could not form part of the same transaction. The trial, it is argued, was vitiated by a misjoinder of charges.
9. This argument is of no avail now since the promulgation of the Code of Criminal Procedure (West Pakistan Amendment) Act. 1964. Misjoinder of charges under section 23 of this Act is only an irregularity which does not vitiate a trial unless substantial prejudice has been caused to the accused for such misjoinder. In the present case no prejudice has been disclosed. Indeed this point of misjoinder was not taken either in the trial Court or even in the appellate Court and it is being raised for the first time now, This negatives the contention that the accused was prejudiced by this misjoinder. We see no substance therefore, in this contention.
10. It is next contended that the dying declaration must have been made at the prompting of the persons who were collected there, because, Mst. Amino Bibi was carried to the Police Station while the statement of the deceased Mohammad Akbar was actually being recorded there. These are questions, however, which only go to the appreciation of evidence and, therefore, cannot furnish adequate grounds for the grant, of special, leave, to appeal.
11. Learned counsel has also sought to contend that the declara--tion of Mohammad Akbar relating to the identity of his assailant should not be accepted, as he could not possibly have either seen or in that early hour of the morning identified the person shooting at him from behind and that too from a distance. The dying declaration has been believed as Alif Din, a completely disinterest--ed person, has supported it. We see no reason to differ from the view taken by the Courts below. Dying declaration is just like any other item of evidence and the question raised is a question of belief or disbelief of the maker of the, dying declaration which is not the function of this Court.
12. The points raised, by him are of no avail. This petition must accordingly, be dismissed.