MUHAMMAD NOOR Versus MBR-I

ORDER

1. ABDUL KADIR J‑ This is a petition for leave to appeal from the judgment of Stan High Court dated 12‑4‑1988 dismissing a Constitutional Petition filed by the petitioners by which they sought to challenge the conviction recorded against them under section 302/34 P.P.C. by the Deputy Commissioner, Kalat, which was confirmed on appeal by the Commissioner, Kalat and in revision application by the Member, Board of Revenue, Baluchistan and under which they were sentenced to 10 years' R.I.

2. The case was initiated on a report dated 20‑9‑1986 that one Muhammad Akbar was missing. Naib‑Tehsildar Kirdgaab started investigation and recovered the dead body of Muhammad Akbar from under the bushes in the mountains. During further investigation, Dad Ali brother of the deceased implicated the petitioners on the suspicion of previous enmity. The case was ultimately referred to the Tribunal which on the basis of three pieces of circumstantial evidence, namely, enmity, abscondence of the accused and the fact that fathers of the petitioners had tried to compromise on payment of blood‑money reported the finding of guilt of the petitioners to the Deputy Commissioner which ultimately became the basis of their conviction and the sentence.

3. It was in these circumstances that petitioners filed the Constitutional Petition in the High Court and it was submitted on their behalf that this was a case of no evidence at all and the petitioners were also not afforded the opportunity to produce witnesses in defence.

4. The High Court dismissed the Constitutional Petition mainly relying on the decision of this Court in the case of Muhammad Hussain Munir and others v. Sikandar and others (P L D 1974 S C 139) in which it was held that the Tribunal having jurisdiction to decide a matter is competent to decide it rightly or wrongly, and the mere fact that decision is incorrect does not render the decision as without lawful authority.

5. Mr. Muhammad Aslam Chishti, learned counsel appearing in support of the petition submits that the case relied upon by the High Court is clearly distinguishable for in the present case the guilt of the petitioner has been based on three circumstances referred to above which in law are no evidence at all, individually or collectively. In this connection, learned counsel relied upon the decision of Baluchistan High Court in Nazar Muhammad and another v. Abdul, Ghafoor and others (P L D 1987 Quetta 141) in which it was held that Qanun‑e‑Shahadat Order 1984 is applicable to proceedings under Criminal Law (Special Provisions) Ordinance‑II of 1968. Learned counsel also submitted with reference to the record that no opportunity of producing witnesses in defence was provided to the petitioners, and the impugned judgments are liable to be set aside on this ground alone.

6. The pleas raised by the learned counsel in support of the petition deserve consideration. We, therefore, grant leave to appeal.

7. Petitioners have applied for the suspension of the jail sentences. We are not inclined to grant the request. The Miscellaneous Petition filed in this behalf is dismissed.

8. M I./M‑539/S Leave granted.