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Criminal Petition No. 34‑R of 1985, decided on 16th December, 1985.

(On appeal from the Judgment, dated 12‑3‑1985 of the Lahore High Court Rawalpindi Bench in Criminal Appeal No. 196 of 1981).

‑‑‑Art. 185(3)‑‑Penal Code (XLV of 1860), S.302‑‑Appeal against acquittal‑‑high Court holding that cases as put forward by prosecution was doubtful and witnesses were unreliable‑‑Testimony of independent witness was also not inspiring confidence‑‑No ocular evidence available regarding firing by accused at his daughter and his wife‑‑Prosecution failing to bring home guilt of accused‑‑Treatment of case by High Court and' reasoning adopted by it in acquitting accused, not being palpably wrong and no substantial error having been pointed out to induce re‑examination of case‑‑Leave to appeal refused.

Kh. Muhammad Yusuf Saraf, Advocate Supreme Court and Ch. Akhtar Ali, Advocate‑on‑Record for Petitioner.

Nemo for Respondent No. 1.

Ch. Ghulam Ahmad, Advocate Supreme Court for Advocate General Punjab for Respondent No. 2.

Date of hearing: 16th December, 1985.

This petition is directed against the judgment of the Lahore High 'Court, Rawalpindi Bench, dated 12‑3‑1985, whereby it set aside the penalty of death sentence and other punishments passed against respondent No. 1 by the Sessions Judge, Jhelum on 7‑9‑1981 and acquitted the said respondent.

The relevant facts are that Rab Nawaz, respondent No. 1 was married to Mst. Amir Begum, the sister of the petitioner herein (Khan Beg). Out of this wedlock a son Muhammad Farooq was born, who was 11 years old at the time of the incident. Subsequently, he divorced Mst. Amir Begum and married Mst. Nek Bakht (D.W.1). He then applied for the custody of his son Muhammad Farooq, in which he succeeded. Allah Yar, father of Mst. Amir Begum, and the petitioner hereinafter some time submitted an application to get back the custody of Muhammad Farooq on account of which, it is alleged, relations between them became further strained.

According to the prosecution case, on the 7th of November, 1980 at about 4‑30 a.m. the petitioner (Khan Beg) and his brother Khan Gul were sleeping in front of the Sarai run by them which is situated opposite of the lorry stand. At about 4‑30 a.m. Khan Gul on hearing a fire shot got up and saw Rab Nawaz, respondent, armed with a pistol firing at the petitioner, Khan Beg and injured him. He also fired at Khan Gul, but missed him. Rab Nawaz was raising Lalkaras that he would finish their entire family. On hearing this Lalkara Khan Gul went to his house, where he found that his father Allah Yar had gone for morning prayers. He went after him and saw his father Allah Yar urinating near the land of Noor Khan. Meanwhile, Rab Nawaz, respondent, also reached there. He fired three shots at Allah Yar who was hit and died on the spot. This incident was seen besides Khan Beg and Khan Gul also by Gul Muhammad and one Rehmat P.Ws. These two persons, it is alleged, were also proceeding to the mosque for morning prayers.

The case of the prosecution further is that respondent Rab Nawaz continued firing in the air and went to his house and fired at his own wife Mst. Nek Bakht and daughter Mst. Itrat Batool aged about 4 years. Both were injured but the child succumbed to her injuries and died.

Rab Nawaz respondent, was tried by the Sessions Judge, Jhelum, who vide his judgment, dated 7‑9‑1981, convicted the said respondent and sentenced him to death plus a fine of Rs.1,000 or in default of payment of fine to R.I. for one year on both counts under section 302, P.P.C. and under section 307, P.P C. to five years' R.I. on two counts. On appeal and reference to the High Court, a Division Bench of the Lahore High Court, sitting at Rawalpindi, accepted the appeal and acquitted respondent No. 1 on all counts vide its judgment, dated 12‑3‑1985. Hence this petition for leave.

Mr. Muhammad Yusuf Saraf, learned counsel for the petitioner also informed us that against the respondent another Murder Reference as well as a criminal appeal, arising out of another case, were also heard by the same Division Bench. In this case, as per prosecution, the respondent had killed two of his sons Farooq aged 11 years (from his first divorced wife Amir Begum) and Mazhar aged 8 years (from his second wife Nek Bakht) a day earlier on 6‑11‑1980. This case was heard, as already mentioned, by the same learned Bench together with the other case and the respondent was acquitted in the said case also. The present petition, however, is directed against the order of acquittal passed by the High Court in connection with the incident which took place on 7‑11‑1980 in which Allah Yar and Itrat Batool were killed and Khan Beg and Mst. Nek Bakht injured.

The learned High Court, in a detailed and elaborate judgment, came to the conclusion that the case, as put up by the prosecution, was doubtful; that Khan Beg, P.W. 12 and his brother Khan Gul, P.W.13 were not reliable witnesses; that the testimony of Gul Muhammad P.W. 11, who though an independent witness, did not inspire confidence; that there was no ocular evidence regarding the firing by Rab Nawaz at his daughter Mst. Itrat Batool and at his own wife Mst. Nek Bakht, D.W.1. In this view of the matter, the High Court came to the conclusion that the prosecution had not brought home the guilt to Rab Nawaz respondent and, therefore, accepted his appeal and refused to confirm the reference and ordered his acquittal. Hence this petition for leave to appeal.

We have heard Mr. Muhammad Yusuf Saraf, learned counsel for the petitioner, at great length in this agonising case, wherein two persons lost their lives and two were injured. Our anguish was further deepened to hear that two sons of Rab Nawaz had also been done to death just a day earlier. However, Mr. Muhammad Yusuaf Saraf was unable to establish before us 'that the treatment of the case by the High Court and the reasoning adopted by it, in coming to the conclusion to which it arrived were palpably wrong or unjustified. Indeed, nothing of weight was urged by the learned counsel for the petitioner to show that any substantial error was committed by the High Court which could induce us to re‑examine this heart‑rending case.

This petition must, therefore, fail. It is, accordingly, dismissed hereby.

M.I. Petition dismissed.

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