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Petitioner: BARKAT ALI VS Respondent: KARAM ELAHI ZIAHonorable Justice Saad Saood Jan
1988 S C M R 458
1988 S C M R 458
Present: Aslam Riaz Hussain, Muhammad Afzal Zullah and Saad Saood Jan, JJ
Ch. BARKAT ALI and another--Petitioners
versus
Major KARAM ELAHI ZIA and others--Respondents
Criminal Petitions Nos.331 and 339 of 1982, decided on 13th December, 1987.
(On appeal from the order dated 30-5-1982 of the Lahore High Court in Criminal Appeal No.760 of 1978 (Murder Reference No.1 of 1979) and Criminal Revision No.415 of 1979.
Penal Code (XLV of 1860)--
---S.302--Trial Court convicting accused-respondent and sentencing him to death but High Court, on appeal, acquitting him--Leave to appeal granted to examine contentions (i) that High Court had not noticed some material circumstances which clearly showed that it was the accused-respondent who was responsible for killing deceased, and (ii) that High Court was not right in holding that the Investigating Officer had been dishonest in inquiring into the facts of the case.
M.B. Zaman, Advocate Supreme Court and Ijaz Ali Sheikh, Advocate-on-Record for Petitioner (in Criminal Petition No.331 of 1982).
Muhammad Rafiq Butt, Advocate Supreme Court and Ijaz Ahmad Khan, Advocate-on-Record for Petitioner (in Criminal Petition No.331 of 1982).
Akhtar Shabir, A.-A.G.. Muhammad Rafiq Butt, Advocate Supreme Court and S. Abid Nawaz, Advocate-on-Record for Petitioner (in Criminal Petition No.339 of 1982) .
Muhammad Aslam Ch. Advocate-on-Record for Respondents.
Nemo for Respondent (in Criminal Petition No.331 of 1982) .
Date of hearing:. 13th December, 1987.
ORDER
SAAD SAOOD JAN, J.--Major Karam Elahi Zia, respondent was convicted by an Additional Sessions Judge at Lahore of an offence under section 302 of the Pakistan Penal Code for causing the death of his wife, Mst. Sameena Balqees. He was sentenced to death and directed to pay a fine of Rs.20,000. On appeal and reference, the High Court set aside his conviction and sentence and acquitted him of the charge against him. The State as well as the father of Mst.Sameena Balqees, by separate petitions, seek leave to appeal from the judgment of the High Court.
2. The respondent was serving as an officer in the Army. He was a resident of Kasur. He married the deceased in 1969 and there were three issues of the marriage, According to the prosecution the respondent became involved with a girl from Kasur and for that reason hatched a plan to get rid of the deceased.
3. The occurrence took place on the night between 30 and 31-12-1976 on the Lahore-Kasur Road, near village Jhulkey, at a distance of about four miles from Police Station Kahna. According to the prosecution, the respondent was driving in his car from Lahore to Kasur together with the deceased and his brother, Amjad Yousaf, after collecting his service card which he had inadvertently dropped in the house of Mst. Hameeda (P.W.9) on the previous day. At 10-15 p.m. while he was passing by the village Jhulkey he stopped the car on the pretext that the brakes of the car were not working properly. He sent his brother to Lahore by a passing bus to fetch some brake-oil. While his brother was away, he shot the deceased with a revolver and then went away to dispose of the weapon. When Amjad Yousaf returned with the brake-oil he found his brother missing and the deceased lying unconscious in an injured condition in the car. Struck with panic Amjad Yousaf went to the Police Station Kahna and there lodged a report at 1-15 a.m. During the absence of Amjad Yousaf the respondent returned to the scene and lied down nearing the car after inflicting some injuries on his person. The deceased died a few hours later without regaining her senses.
4. The respondent pleaded not guilty to the charge against him. He denied that he had killed his wife and alleged that while he was sitting in the car some dacoits came, shot his wife and assaulted him; as a result he became unconscious. He further alleged that he had been falsely implicated on account of dishonest conduct of the investigating officer and the suspicion of the relatives of his wife. He did not produce any evidence in his defence.
5. The case against the respondent rested entirely upon circumstantial evidence. The learned trial Court found that the circumstances surrounding the death of the deceased satisfactorily established that it was he who had killed the accused; accordingly, it convicted him of the offence under section 302 of the Pakistan Penal Code. However, on appeal, the High Court took a contrary view and acquitted him.
6. In support of these petitions, it is urged that the High Court has not noticed some material circumstances which clearly show that it was the respondent who was responsible for killing the deceased. It is stated that the explanation given by the respondent for visiting Lahore on the evening immediately preceding the occurrence has been proved to be false. Reference has also been made inter alia to the absence of the respondent from the spot when his brother returned with the brake-oil from Lahore. It is pointed out that footprints of the respondent alone were found at the spot from where the deceased was shot at. It is alleged that the fact that no valuables including the gold ornaments of the deceased were removed from the scene of occurrence negatived the plea of the respondent that the dacoits were responsible for the occurrence. It is also pointed out that the brakes of the car when examined on the next morning were found to be in working order. It is further contended that the High Court was not right in holding that the investigating officer had been dishonest in inquiring into the facts of the case.
7. The contentions raised in support of these petitions require examination. Leave to appeal is granted in both the petitions. The District Magistrate is directed to issue warrant of arrest against the respondent.
S.Q./B-32/5 Leave granted.