1988 P Cr (PLP)

S.M. Zubair A.A.‑G. for the State. Sh. Naveed Shehryar and Amjad Ahad Shaikh for the Complainant. Date of hearing: 21st March, 1988. The petitioner Fateh Muhammad has moved this criminal revision praying therein that the impugned order, dated 20‑5‑1985 passed by the learned Sessions Judge, Mianwali, whereby respondent No.2 Ghaus Muhammad was acquitted may be set aside. It was further prayed that the case be remanded for the retrial of the said respondent. 2. The case of the prosecution as disclosed in the F.I.R. is that the complainant Fateh Muhammad son of Ghulam Muhammad is the real brother of Ghulam Yasin. Both of them use6 to run a shop in village Piplan. The said Ghulam Yasin and respondent No.2 Ghaus Muhammad also had a common Grocery Store being run by them in the village. On 27‑6‑1983 in the night Ghulam Yasin was sleeping tight in front of his shop in village Jall Janubi. One Muhammad Ramzan son of Jan Muhammad came there from the side of his house. He reached near the cot on which Yasin was sleeping and started looking around him. He whipped a pistol and fired on Ghulam Yasin, which hit on his chest. On hearing the pistol report, respondent No.2 Ghaus Muhammad and one Abdul Rehman son of Sultan reached the spot when both of them were going outside to ease ' themselves after observing their fast. Both of them saw the occurrence in the moonlit night. They tried to catch hold of Muhammad Ramzan but he succeeded in running away from the place of occurrence. 3. The motive of the commission of the crime is that 15 years ago, Mst. Jantan daughter of Nur Muhammad, who is the paternal‑aunt of respondent No.2 Ghaus Muhammad was divorced by his co‑accused Muhammad Ramzan. She was living with the respondent Ghaus Muhammad till the date of occurrence. Muhammad Ramzan has already re‑married with Mst. Waziran daughter of Sultan. However, she was abducted by one Muhammad Iqbal son of Abdul Rehman and he had a strong suspicion that this had happened on account of the aid of complainant's real brother Ghulam Yasin. Muhammad Ramzan has been consistently demanding back the hand of Mst. Waziran from Ghulam Yasin. However, the said negotiations continued without giving any result. 4. On 7‑5‑1985 the learned Public Prosecutor submitted an application for permission to withdraw the prosecution against respondent Ghaus Muhammad under section 494, Cr.P.C. The learned Sessions Judge, Mianwali, vide his order, dated 20‑5‑1985 came to the conclusion that evidence of extra‑judicial confession made by Alam Sher and Ayaz Khan P.Ws. is entirely undependable and as such on this basis the learned trial Court proceeded to give permission to the learned Public Prosecutor to withdraw the prosecution of respondent Ghaus Muhammad. Accordingly Ghaus Muhammad respondent No.2 was discharged as the charge was not formally put to him. The learned counsel for the petitioner has contended that as a matter of fact there was no compromise between the parties and as such order of discharge could not be recorded by the learned trial Court. Learned counsel forcefully submitted that there is overwhelming evidence on record to connect respondent No.2 with the commission of the offence of murder of Ghulam Yasin. Mr. S.M. Zubair, learned Additional Advocate‑General has appeared and he has supported the order, dated 20‑5‑1985 passed by the learned Sessions Judge. He submitted that respondent No.2 Ghaus Muhammad has not been mentioned as an accused person in the F.I.R. but on the contrary he was cited as an eye‑witness by the complainant Fateh Muhammad himself. He stated that there is no evidence whatsoever to connect Ghaus Muhammad with the commission of the crime. 5. I have heard the learned counsel for the parties and have also perused the record. I find that Ghaus Muhammad respondent No.2 was cited as an eye‑witness in the case by the complainant himself alongwith Abdul Rehman. The Investigating Agency has come to the conclusion that there is no reliable evidence showing the implication of the respondent No.2 in the case. Thus the learned Public Prosecutor has correctly acted under section 494, Cr.P.C. for the withdrawal of the case against respondent No.2. The Public Prosecutor is the overall incharge of the prosecution case and he was the best Judge as to what was the evidence available on the record against respondent No.2. The application of Public Prosecutor was for the withdrawal of the case against Ghaus Muhammad as there was no evidence connecting him with the commission of the crime. This application of the learned Public Prosecutor was accepted by the learned trial Court and necessary permission for withdrawal of the case was allowed vide order, dated 20‑5‑1985. Learned counsel for the petitioner was not able to point out any evidence whatsoever on record to connect the said respondent with the commission of the crime. The very basis of the case of the prosecution is that respondent No. 2 was an eye‑witness in the case. In my view there is no justification to implicate him as an accused person in the case. There is not an iota of evidence against him. The prosecution itself is not sure about the evidence of extra‑judicial confession deposed by Alam Sher and Ayaz Khan. This being so there is no substance in the revision petition, which is accordingly dismissed. S.A./F‑83/L Revision declined.