1990 PLP 411 (SCMR)

Date of hearing: 20th June, 1989. S. USMAN ALI SHAH, J.‑‑This petition for leave to appeal has been filed by Haji Rab Nawa7, petitioner and is directed against the order of the Lahore High Court, Lahore dated 25‑5‑1985, passed in CrA.No.383/82. The respondents Nos.l‑8 were tried by the Sessions Judge, Sargodha, for the murder of Gul Zaman son of Ghaus Muhammad, in an occurrence which had taken place on 4‑7‑1978 at 11‑30 p.m., at the Road of Mohallah Awanpura at a distance of two furlongs from Police Station Khushab, District Sargodha and were convicted and sentenced as under:‑ Under Section 120‑B. P.P.C. Sikandar Zulqarnain respondent No.l, Mian Safdar, Mian Sardar Bakhsh and Mian Khuda Bakhsh, respondents Nos.6‑8 were convicted and sentenced to imprisonment for life each with a fine of Rs.10,000, or in default to undergo further two years' R.I. each. Under Section

148. P.P.C. Sikandar Zulqarnain, Asghar Hayat, Harz Khan Muhammad, Muhammad Sharif and Safdar Ali respondents Nos.l‑5 were convicted and sentenced to imprisonment for two years' R.I. each. Under Section 302/149. P.P.C: (i) Sikandar Zulqarnain and Asghar Hayat respondents Nos.l and 2 were convicted and sentenced to death with a fine of Rs.15,000 each, in default of payment of fine to suffer further three years' R.I. each. (ii) Hartz Khan Muhammad, Muhammad Sharif and Zafar Ali respondents Nos.3‑5 were convicted and sentenced to imprisonment for life each with a fine of Rs.10,000 each, in default of payment of fine to suffer further two years R.I. All the sentences to run concurrently and fine if realized 2/3rd of which be paid to the widow and daughters of the deceased. All the accused respondents riled Criminal Appeal No.383/82 against their conviction and sentences, whereas the petitioner filed criminal revision No.759/82 for the enhancement of the sentences of Hartz Khan Muhammad, Muhammad Sharif, Zafar Ali for the main occurrence and Sikandar Zulqarnain, Mian Safdar, Mian Sardar Bakhsh and Mian Khuda Bakhsh for the conspiracy. The learned Judges of the Division Bench of the High Court who heard both the matters, accepted the appeal of the accused respondents and acquitted them of the charges. However, the criminal revision filed by the petitioner was dismissed, vide impugned judgment. We have heard the learned counsel for the parties and perused the evidence on record. We have observed that the important point in the prosecution story is the criminal conspiracy in pursuance of which Gul Zaman was murdered and in the execution of that plan, Sikandar Zulqarnain, Asghar Hayat, Khan Muhammad, Zafar Ali, Muhammad Sharif respondents killed Gul Zaman by firing at him. Out of the two witnesses of the alleged conspiracy, Muhammad Sultan and Nazar Muhammad only Muhammad Sultan was produced. Mian Sultan had offered adequate compensation to Muhammad Sultan and Nazar Muhammad who also assured them that in case they were arrested and prosecuted all the expenses on their litigation shall be borne by him to save them. Both of them were taunted by Mian Safdar, Mian Sardar Bakhsh, Mian Khuda Bakhsh and Sikandar Zulqarnain that it was not too big job for them to ponder over it. Sikandar Zulqarnain offered himself to murder Gul Zaman and also asked to choose any of the remaining persons planned to be killed. Muhammad Sultan and Nazar Muhammad disagreed which annoyed Mian Sultan. Muhammad Sultan and Nazar Muhammad had apprised Muhammad Parvez and Haji Muhammad Amir PWs of the conspiracy. Muhammad Parvez passed on the information to Ziaul Hasan and Noorul Hasan PWs who conveyed the same to Gul Zaman deceased and others: Ziaul Haq in his leave application Ex.PQ dated 3‑7‑1978 also mentioned the facts of the said conspiracy. These are the facts which satisfied the Court to believe the existence of a conspiracy based on the agreement amongst the accused to commit the unlawful murder of Gul Zaman deceased. In such a case according to the view of the learned Judges of the High Court independent corroboration was not available. The motive in this case is the business rivalry between the parties and the possibility of false implication of exaggerated number of accused could not be ruled out and the learned High Court has rightly come to that conclusion and acquitted them of the charges. The case against Hartz Khan Muhammad, Muhammad Sharif, Zafar Ali, Mian Safdar, Mian Sardar Bakhsh, Mian Allah Bakhsh and Mian Sultan respondents Nos.3‑9 has not been proved and they have rightly been acquitted but the case against Asghar Hayat and Sikandar Zulqarnain respondents Nos.l and 2 is on a different footing. They remained in abscondence from 5‑7‑1978 to 15‑8‑1978 and their plea was that they were in Turkey at the time of occurrence and have not absconded at all. In our view the defence plea of alibi, so far its truth and falsehood is concerned, in the case of Sikandar Zulqarnain and Asghar Hayat respondents Nos.1 and 2, needs consideration of this Court. Leave is granted against them only and dismissed as against others. Non‑bailable warrants are to be issued against Sikandar Zulqarnain and Asghar Hayat respondents Nos.l and

2. M.A.K./R‑119/S Leave granted.