1. SAJJAD AHMAD, J.-A case was registered against the appel--lants under sections 307 arid 436, P.
2. P. C. For having attempted on the lives of Awal Dad and Hassan Dad by firing at them after having set fire to their chhappar, which was destroyed in the result. The Inquiry Magistrate examined Awal Dad and Hussan Dad and also the Medical Officer in addition to Fazal Dad, who bad lodged the First Information Report in the case. Thereafter the case was withdrawn at the instance of the prosecution, and the Commissioner, Peshawar Division, by his order dated the 14th of March 1968, refused the case for trial by a council of elders. The appellants filed an appeal against this reference to the Home Secretary to the Government of West Pakistan, which was dismissed 'they then challenged the reference order by a writ peti--petition in the High Court, which was also dismissed. In his reference order, the Commissioner stated that "as the occurrence took place at right and the accused were identified by the witnesses with the aid of the light of the fire which had bee' set to the chhappar, it is doubtful whether the evidence regarding the identification would be believed in a Court of law.
3. The learned counsel for the appellants has argued that the reason, as mentioned by the Commissioner for referring the case to a tribunal is not relatable to any of the prescribed reasons for making a reference. It was argued that merely because the Commissioner apprehended that the evidence with regard to the identity of the accused may not be believed by an ordinary Court, is not a valid reason for reference of the case to a tribunal under the Criminal Law (Amendment)
4. Act. The learned Commissioner has not phrased his reason for reference very happily or conven-- tionally, but the fact remains that the primary consideration which influenced his decision, was that the occurrence having taken place at night, the evidence of identity on the culprits in the light caused by the burning of the chhappar may not stand judicial scrutiny and the ends of justice may t--us be defeated. The occurrence having admittedly taken place at night, rule 3(a) of the West Pakistan Criminal (Amendments Rules, 1963, was clearly attracted for reference of the ease under section 307, P. P. C. To the council of elders. Similarly, the destruction of chhappar by arson in which one sheep of the complainant party also perished, was a building used as a human dwelling and for custody' of property, and this part of the case fell within the ambit of rule 3(j) of the aforesaid rules. The learned Commissioner therefore, acted with lawful authority in making the reference In this case, and the High Court rightly declined to interfere with his order in writ jurisdiction. This appeal is dismissed.