1990 PLP 1094 (SCMR)

Date of hearing: 10th January, 1990. SAAD SAOOD JAN, J.‑‑‑This petition for special leave to appeal arises from the order dated 26‑1‑1988 of the Lahore High Court whereby it dismissed the revision petition of the petitioner from an order of acquittal recorded by the Sessions Judge, Gujranwala.

2. The respondents Abdul Qayyum and Naeem Akhtar are real brothers. Their sister, Mst. Fahmeeda, was married to one Abdul Waheed who was living in Saudi Arabia. Abdul Waheed purchased a house in Gali Kumharan Gorey Shah of Muhallah Karimpura, Gujranwala Town. After the purchase, his brother, Muhammad Saeed, and his mother started living in it. Muhammad Saeed was married to the petitioner and had four children.

3. As alleged by the prosecution, about 4 months prior to the occurrence, the respondent alongwith Mst. Fahmeeda visited Muhammad Saeed and asked him to vacate the house. Muhammad Saeed declined to .lo so stating that the house belonged to his brother and he would vacate it only when his brother asked him to do so. The respondents then issued throats to him.

4. It was further alleged by the prosecution that on the night between 15/16th June, 1986, Muhammad Saeed was sleeping in the courtyard of his house alongwith the petitioner arid the children. His mother had gone to Lahore. The petitioner's sister Mst. Zahida was also present in the house. About half an hour after mid‑night the two respondents entered the courtyard with fire‑arms. They fired at Muhammad Saeed as he lay on his cot. He was struck in the head, face and chest and died on the spot. Both the petitioner and Mst. Zahida raised an alarm. Upon this the two respondents ran away with their weapons.

5. S.I. Barkat Ali of Police Station Baghbanpura Gujranwala was on patrol duty at the time of occurrence. On hearing about the occurrence he reached the scene of crime and recorded the statement of the petitioner. On the basis of her statement a case was registered at Police Station Baghbanpura at 2.15 A.M.

6. At the trial, the prosecution relied mainly upon the ocular testimony furnished by the petitioner and Mst. Zahida. The learned Sessions Judge thought that they were not reliable witnesses and their evidence was not credible enough to support the conviction of the respondents on the charge of murder. Accordingly, he acquitted them. The petitioner filed a revision petition in the High Court but that was dismissed. She now seeks leave to appeal from this Court.

7. In support of this petition it is contended that the petitioner was a natural witness. The shots fired at her husband were sufficiently loud to awaken her and her sister. The presence of her sister Mst. Zahida in her house was not something unusual. The mother of the deceased was away from the house. It was not unnatural for the petitioner to call her unmarried sister to live with her to assist her in the daily chores. There was no enmity between the parties. The F.I.R. was lodged without any delay. The names of. both respondents were mentioned therein as the persons who had fired at the deceased. The trial Court and the High Court were, therefore, not right in rejecting their testimony. It was thus clearly a case where an order of acquittal could not possibly be recorded.

8. The contentions raised in support of this petition need examination. Leave to appeal is granted. Bailable warrants in the sum of Rs.20,000 with two sureties returnable to the District Magistrate, Gujranwala, may be issued against the respondents. N.H.Q./S‑506/S Leave granted.