1994 PLP 1073 (SCMR)

MUHAMMAD RAFIQ TARAR, J: ‑‑Ahmed petitioner in Jail Petition No. 55/1992, Gul Muhammad alias Gulla, Muhammad and Umar Hayat alias Umra were tried by an Additional Sessions Judge on the allegations that on 9‑7‑1985 at 8‑00 a.m. they committed the murders of Allah Bakhsh and Mst Halima deceased persons in furtherance of their common intention. By judgment dated 3‑5‑1986 they were convicted for double murder and sentenced to imprisonment for life and a fine of Rs.5,000 each on each count. On appeal Gul Muhammad alias Gulla, Muhammad and Umar Hayat alias Umra were acquitted on benefit of doubt while the appeal of Ahmed petitioner herein was dismissed and he was further directed to pay Rs.10,000 as compensation on each count to the heirs of each deceased vide judgment dated 4‑12‑1991. Ahmed convict and Muhammad Amir complainant seek leave to/ appeal from the aforesaid judgment.

2. The brief facts of the prosecution case are that Allah Bakhsh deceased who was a married person had contracted marriage with Mst. Halima deceased sister of Ahmed petitioner. She had a number of children from her former husband Sher Muhammad. This marriage took place against the wishes of the relatives of Mst. Halima. According to the prosecution Mst. Halima was divorced by her former husband Sher Muhammad and her marriage with Allah Bakhsh deceased was lawful. On 9‑7‑1985 at 8‑00 a.m. the deceased persons were sting on a cot in their house when the petitioner and his co‑accused armed with guns came there. The petitioner threw a challenge on Allah Bakhsh deceased that he would teach him a lesson for keeping his sister with him and none of them would be spared. Simultaneously he fired at Allah Bakhsh hitting his right flank as a result of which he fell to the ground; Gul Muhammad fired at Mst Halima hitting her right flank; Umra fired at Allah Bakhsh hitting his neck; Muhammad also fired at him hitting back of his palm; Gul Muhammad again fired at Mst Halima hitting her left flank; Ahmed fired at her hitting her back; then Umra and Muhammad fired at her hitting the head. The occurrence was also witnessed by Muhammad Nawaz and Hafiz Ghulam Haider. Mst Halima succumbed to her injuries at the spot whereas Allah Bakhsh expired later on in the hospital.

3. Muhammad Amir complainant and Ghulam Haider P.Ws. supported the prosecution version at the trial.

4. The petitioner and his co‑accused pleaded not guilty to the charge. Ahmed petitioner stated that he was falsely implicated due to enmity and gave a counter version as under:‑ "Mst. Haleema deceased was my real sister and was wife of Sher Muhammad Khitchi. She had grown up married children from him. Her eldest son is Sarfraz who is employed in Army. Some time before this occurrence Allah Bakhsh deceased developed illicit relations with Mst. Haleema deceased and abducted her from the house of her husband Sher Muhammad. He took her to different places. During the days of occurrence my brother Sher Muhammad had come on leave from the Army. On the day of occurrence myself, and Sher Muhammad, my brother who had a licensed gun with him went to see our brother‑in‑law Sher Muhammad in Chak No. 128/NB. Sarfraz son of Mst Haleema was also present in the house. We all were sitting in the house when learnt that Allah Bakhsh deceased had brought Mst Haleema deceased in the Ahata of Ghulam Ali Hurgan for the purposes of adultery. The said Ahata is only at a distance of 40 yards from the house of our brother‑in‑law Sher Muhammad. Myself and my brother Sher Muhammad took Riaz Khitchi and Khan Muhammad Kalyar respectables of the area with us to. the Ahata of Hurgan where Allah Bakhsh and Mst Haleema had come, to request our sister Mst Haleema to come back to the house of her husband Sher Muhammad and to advise her not to live in adultery. When we reached that Ahata we saw that Mst Haleema deceased and Allah Bakhsh deceased were sitting on one cot, my brother Sher Muhammad asked Mst. Haleema to got with us to a house of her husband and should leave her easy virtues. Thereupon Allah Bakhsh and Mst Haleema said that they would live in adultery and not prepare to go back to the house of the husband of Mst. Haleema. On this my brother Sher Muhammad fired at both the deceased under grave and sudden provocation. The complainant party did not mention Sher Muhammad as culprit because they thought that he might arrange his alibi of his duty."

5. Relying on the prosecution evidence the learned trial Judge convicted all the appellants under section 302/34, P.P.C. on two counts. On re‑examining the evidence the learned Single Judge, however, observed that the case against Gul Muhammad, Muhammad and Umar Hayat was not free from doubt. While dealing with the case of Ahmed petitioner he observed that he admitted his presence at the time of occurrence along with his brother Sher Muhammad in his statement under section 342 of the Cr.P.C. and it was "not possible to believe that he came alongwith his brother empty handed simply to ask his sister Mst. Haliman (deceased) to accompany them back to the house of her husband Sher Muhammad Khichi." It was further observed that he could not avoid his liability for the double murder by suppressing his own role nor it was a case of grave and sudden provocation as he came to the spot "with the determination to vindicate his honour...?.

6. We have heard the learned counsel for the parties. The learned counsel for the complainant/petitioner in Criminal Petition No. 45/L/1992 contended that Gul Muhammad alias Gulla, Muhammad and Umar Hayat alias Umra respondents have been acquitted for insufficient reasons. He, however, could not convince us that the view taken by the learned Judge of the High Court in acquitting them was not possible. It is well settled that this Court would not ordinarily interfere with the judgment of acquittal unless it was shown that, there was no evidence to support the view taken by the Court recording the finding of acquittal. (See PLD 1985 SC 11). We, therefore, do not see any ground for interference with the finding of acquittal recorded by the High Court.

7. As regards the Jail petition by Ahmed convict, after carefully going through the record we agree with the finding of the learned Single Judge that his case is distinguishable. There is sufficient evidence on the record against him and the learned Single Judge has given cogent reasons for upholding his conviction and sentence. We, thus, do not find any substance in his petition with the result that both the petitions are dismissed. N.H.Q./M‑2006/SC ?????????????????????????????????????????????????????????????????????????? Leave refused.