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Criminal Petitions Nos. 31‑R and 32‑R of 1985 (also No. 32‑R/85), decided on 18th December, 1985.

(On appeal from judgment, dated 13‑3‑1985 of Lahore High Court, Rawalpindi Bench in Criminal Appeals Nos. 65/83 and 124/83).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S. 302‑‑Petitions against acquittal and conviction‑‑Reasoning given by High Court found unexceptionable and without any error either in appreciation of evidence or in application of legal principles‑‑Supreme Court agreeing with conclusions, refused leave to appeal.

Raja Muhammad Anwar, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner (in Criminal Petition No. 31‑R‑85).

Sardar Muhammad Ishaq Khan, Advocate Supreme Court and Khan Imtiaz Muhammad Khan, Advocate‑on‑Record for Petitioner (in Criminal Petition 32‑R‑85).

M. Bilal, Advocate Supreme Court with Rao M. Yousaf Khan, Advocate‑on‑Record for the State.

Date of hearing: 18th December, 1985.

‑Amir Khan and his brother Dilawar Khan sons of Ghulam Muhammad were tried for the murder of Walayat Khan. The trial Court found Amir Khan guilty and sentenced him to death. However, Dilawar Khan was given the benefit of doubt and acquitted. Amir Khan challenged his conviction and sentence by filing an appeal before the High Court. The State also filed an appeal against the judgment of the trial Judge to challenge the order of acquittal passed in favour of Dilawar Khan. Both these matters were heard by a Division Bench of the Lahore High Court at Rawalpindi. The learned Division Bench confirmed the order of death sentence passed on Amir Khan and dismissed his appeal. Similarly, the State appeal directed against the acquittal of Dilawar Khan was also dismissed.

Amir Khan has challenged the above order of the High Court by filing a petition for leave to appeal in this Court (Cr. P. No.31‑R/85). Likewise, the complainant (Hidayat Khan) has also filed a petition for leave to appeal in this Court (Cr. P.No.32‑R/85) to challenge the order of acquittal passed in the case of Dilawar Khan. Both these matters are, therefore, being heard together.

The case of the prosecution was that, on 29‑3‑1982 at about 1.30 p.m. when Walayat Khan deceased was present at the shop of Juma Khan (CW) in Jand Bazar for getting mended the punctured tube of his cycle, the accused Amir Khan armed with a Chhuri and his brother Dilawar Khan armed with a small sword suddenly appeared on the scene and the former, raising a Lalkara, attacked Walayat Khan and inflicted a Chhuri blow on the right side of his abdomen. This was followed by a thrust with the sword on the left side of his abdomen, his brother Dilawar Khan was carrying. Amir Khan gave a second Chhuri blow which hit him on the left side of his left upper arm. Meanwhile, Shujah‑ud‑Din, Fateh Khan and Karam Ilahi P.Ws. reached there but before they could rescue the victim, each of the accused gave one more blow with his weapon on his abdomen as a result of which he fell down and the assailants went away with their weapons. The injured was, thereafter, taken to the police post Jand where his statement was recorded (Exh. P.Q) which later on formed the basis of the F.I.R. His statement was also recorded later in the evening in the hospital by a Magistrate. The victim, Walayat Khan, subsequently succumbed to his injuries and died. Whereupon both the brothers, Amir Khan and Dilawar Khan were tried for murdering him.

The Courts below have held that whereas the guilt of Amir Khan was proved beyond reasonable doubt, the case against Dilawar Khan was doubtful. Hence, the former was sentenced to death and the latter acquitted.

We heard Raja Muhammad Anwar in support of Criminal Petition No.31‑R of 1985. His main submission was that even if Amir Khan was guilty of injuring the victim, which subsequently resulted in his demise, he was not liable for the extreme penalty of death; whereas according to Sardar Muhammad Ishaq Khan, learned counsel for the complainant, who appeared in support of Criminal Petition No.32‑R of 1985, not only was the sentence of death passed against Amir Khan fully justified but that even the order of acquittal of Dilawar Khan was erroneous and had caused miscarriage of justice and was liable to be set aside.

We have heard learned counsel in both the petitions as well as perused the record. We find the reasoning of the High Court in confirming the sentence of death passed against Amir Khan as also for upholding the order of acquittal in respect of Dilawar Khan to be unexceptionable and that the High Court has not committed any error either in the appreciation of the evidence or in the application of legal principles. In fact, we ourselves fully agree with the conclusions arrived at, in this case, with the learned High Court.

There is, thus, no force in either of these petition. Both of which, accordingly, fail and are dismissed hereby.

M.I. Petitions dismissed.

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