STATE Versus KHIZAR HAYAT

ORDER

1. SH. RIAZ AHMAD, J. ‑‑ Respondents Khizar Hayat, Muhammad Younis and Muhammad Hussain alongwith convict Muhammad Arif were tried by an Additional Sessions Judge at Sheikhupura on the charge under section 302 read with section 34, P.P.C. for having committed the murder of Abdul Ghaffar (deceased).

2. Vide judgment dated 4th of June, 1990, only Muhammad Arif co -accused was convicted on the aforesaid charge and sentenced to life imprisonment and to pay a fine of Rs.15,000 or in default thereof to suffer further R.I. for a term of five years. He was also directed to pay compensation amounting to Rs.15,000 under section 544‑A; Cr.P.C. in default thereof to suffer R.I. for a term of five years. As far as respondents Khizar Hayat, Muhammad Younis and Muhammad Hussain are concerned, they were acquitted of the charge.

3. With the assistance of the learned Assistant Advocate‑General, we have carefully gone through the evidence on the record as well as judgment impugned.

4. The prosecution case is that on 28th of November, 1987 at about 8 p.m., the complainant Abdul Sattar and his brother Abdul Ghaffar (deceased) were on their way to village Khiaray and when they passed near the Haveli of Arif convict and Muhammad Younis, the respondents alongwith Arif emerged from the Haveli raising Lalkaras, Muhammad Arif armed with a .12 bore gun, his brother Muhammad Younis armed with a Sota, Khizar Hayat armed with .12 bore gun and Muhammad Hussain son of Wali Muhammad armed with a carbine, they launched the attack upon deceased Abdul Ghaffar.

5. As far as the medical evidence is concerned, the doctor found only one fire‑arm injury at the back of the head of the deceased Abdul Ghaffar which proved to be fatal. '

6. The prosecution case rested upon the ocular account in this case which is furnished by Abdul Sattar, complainant, P.W.8 and Muhammad Rafique, P.W.9.

7. The learned Additional Sessions Judge on the basis of the prosecution evidence observed and rightly so that Muhammad Younis who was allegedly armed with a Sota was not at all attributed any role by the prosecution witnesses and as far as respondent Muhammad Hussain is concerned, although, the prosecution evidence has revealed that he accompanied by convict Muhammad Arif had come out of the Haveli but the eye‑witnesses failed to prove that whether he was in fact armed or not. The learned Additional Sessions Judge referred to his statement under section 161, Cr.P.C. but a reference of it is of no avail because statement under section 161, Cr.P.C. can only be used to contradict a witness. Thus, it is obvious that Muhammad Hussain was not at all armed.

8. As far as Khizar Hayat respondent is concerned, although, he was also accompanied by convict Muhammad Arif who was armed with a .12 bore gun but no specific role was attributed to him; only ineffective firing was attributed to him.

9. It was a case of family honour and that is why, the convict Muhammad Arif was awarded lesser penalty in this case.

10. After having perused the entire evidence on the record and having heard the learned Assistant Advocate‑General, we are of the view that the acquittal of the respondents as recorded by the learned Additional Sessions A Judge is not open to exception and merely because another view of the same evidence can be taken is hardly a ground to interfere with the acquittal.

11. Hence, the appeal filed by the State is dismissed.

12. N.H.Q./S‑277/L Appeal dismissed,