1989 PLP 1285 (SCMR)

‑‑‑S.302‑‑Criminal Procedure Code (V of 1898), S.417(2)‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑Reappraisal of evidence‑‑Unnoticed crime‑ Prosecution was able to make out a case free from doubt against accused‑ Parties were inter‑related as complainant was father of deceased and brother of accused while prosecution witness was the brother of deceased and all other accused were the sons of main accused‑‑Besides complainant, the other two witnesses, brother of deceased and another witness did not support prosecution case and according to record the said another witness was won over by the defence‑‑Case was of its peculiar type and two compatible parallel theories existed between prosecution and the defence version, out of which the latter appeared to be more reasonable and plausible‑‑Other pieces of evidence were also such as would not have warranted conviction of accused persons‑‑Leave to appeal against order of High Court acquitting accused was refused. Syed Abul Asim Jafri, Advocate‑on‑Record for Petitioner. Nemo for Respondents. M.Sharif Butt, Advocate Supreme Court and Rao M.Yousaf Khan, Advocate‑on‑Record for the State. Date of hearing: 5th March, 1989. USMAN ALI SHAH, J.‑‑Muhammad Nawaz, petitioner has brought this petition for leave to appeal from the judgment, dated 9‑3‑87 of the Lahore High Court, whereby application under section 417(2) of the Cr.P.C. for special leave to file appeal in the High Court against the judgment of the trial Court. dated 28‑9‑86 acquitting all the five respondents of the charges levelled against them, was dismissed by the impugned judgment. Admittedly, it was an unnoticed crime and the prosecution was unable to make out a case free from doubt against the accused. The parties are interrelated, as complainant Muhammad Nawaz is the father of Abdur Rahman deceased and the brother of Muhammad Muslim accused, while Bilal PW is the brother of the deceased and all other accused are the sons of Muhammad Muslim accused. Besides Muhammad Nawaz complainant, the other two witnesses Bilal, brother of the deceased and Arif are not supporting the prosecution case and according to the record Arif is won over by the defence. It is a case of its peculiar type and two compatible parallel theories exist between the prosecution and the defence versions, out of which the latter appeared to be more reasonable and plausible. According to the prosecution Abdur Rahman deceased had sustained injury while he was running. Abdul Harz accused was chasing him and it was not possible for him to inflict injury on the buttock of Abdur Rahman deceased from below upward. It is not plausible also for the reason that Abdul Hafiz accused had allegedly gone there to take the life of Abdul Rahman deceased, so if he wanted to take his life then he would have selected some vital place also for inflicting Chhuri blows on the deceased. The name of Muhammad Arif C.W. 10 is mentioned in the F.I.R. by the complainant and was an independent witness and his evidence is discarded by the prosecution as untrustworthy for an unknown reason. We have also examined the evidence produced by the prosecution for our satisfaction and find that other pieces of evidence are also such as would not have warranted the conviction of the respondents. In view of the matter, we find no substance in this petition, which is dismissed and leave refused. M.B.A./M‑872/S Petition dismissed.