ASLAM RIAZ HUSSAIN, J.-This order will dispose of P. S. L. A. No. 516 of 1978 filed by Mian Sultan dad P.
S. L. A. No. 525 of 1978 filed by Sikandar Zulqernain, Mian Sardar Bakhsh and Mian Safdar Khan against the order of a learned Single Judge of the Lahore High Court dated 19 of November 1978, rejecting their bail applications, and P. S. L. A. No. 3-R of 1979 filed by Haji Rab Nawaz against the same order of the High Court, granting bail to Asghar Hayat, Hafiz Khan Muhammad, Zafar A.I, Muhammad Sharif and Mian Khuda Bakhsh.
2. The facts leading to the present petition .Briefly are that nine persons, namely, Mian Sultan.
Sikandar Zulqarnain, Win Sardar Bakhsh and Mian Safdar Khan petitioners in the first mentioned two petitions (Ps. S. L. A. Nos. 516 and 525 of 1978) and Asghar Hayat, Hafiz Khan Muhammad, Zafar A.I, Muhammad Sharif and Mian Khuda Bakhsh respondents in P. S. L. A. No. 3-R of 1979, are accused of murder of Gul Zaman (deceased) vide F. I. R. No. 187 of 1978 dated 4th of July 1978, lodged by Haji Rab Nawaz (complainant petitioner in. P. S. L. A. No. 3-R of 1979). The murder took, place at 11-30 p. m. On the night between 4th, 5th July 1978 ; in Mohalla Awan Para, Khushab, District Sargodha. The motive for the murder is stated to be rivalry between the ownersof two bus services known as Awan Express Service and Super Awan Bus Service. According to the F. I. R. Awan Express Service had a monopoly of operation on the' Faisalabad-Sargodha-Rawalpindi route and did not allow any other company to ply its buses on that route. But in February 1978 the complainant party (Haji Rab Nawaz and others) started plying their buses (Super Awan Bus Service) on the same route. This was resented by the owners of Awan Express Bus Service, giving rise to hostility between theth management of the two companies as a result of which they got criminal cases registered against each other.
3. According to the F. I. R. On the 4th of July 1978 Malik Gul Zaman (deceased) after finishing the day's work left the bus stand for his house in a tonga, in the company of Haji Rab Nawaz (complainant), Muhammad P. W, and Haq Nawaz P. W. On reaching the house they let off the tonga. It was about 11-30 p. m. Just then a car came there from the rear side at high speed and stopped near them. Five persons, all armed with guns came out of the car. They were Sikandar Zulqernain, Asghar Hayat, Hafiz Khan Muhammad and Zafar A.I manager of Awan Express Bus Service and Muhammad Sharif the Checker of the said bus service. It is alleged that Sikandar Zulqerrain and Asghar Hayat raised Lalkara that Gul Zaman would be taught a lesson for opposing their (the accused) bus service. Sikandar Zulqernain then fired a shot at Gul Zamall hitting him on the right wrist. Thereafter Asghar Hayat fired at Gul Zaman hitting hire on the left side of the back.
Gul Zaman fell down on the spot. During this time the remaining three accused kept on firing in order to overawe the witnesses. Thereafter they got into their car and fled away. It was night-time but the complainant claims to have identified the assailants as there was sufficient electric light at the place of occurrence. Gul Zaman was carried to the Civil Hospital Khushab but he died on the way. It is also stated in the F.I. R. That the murder had been committed as a result of a conspiracy hatched by Mian Sultan, Mian Safdar Khan, Mian Sardar Bakhsh and Mian Khuda Bakhsh who are the/partners /proprietors of Awan Express Service.
Sikandar Zulqernain and- Asghar Hayat applied for bail before arrest but the same was dismissed by the High Court on 15th of August 1978. They were arrested on the same day. The remaining accused were arrested on the 18th of August 1978. Thereafter they applied for bail to the Sessions Judge, Sargodha on the 21st of October 1978. The petitioners then approached the High Court for bail after-arrest, vide Criminal Miscellanies No. 4066/B of 1978. The learned Single Judge of the High Court who heard the application granted bail to Asghar Hayat, Hafiz Khan Muhammad, Zafar A.I, Muhammad Sharif and Mian Khuda Bakhsh, but he dismissed the bail application qua the remaining four accused.
Hence the present three petitions for special leave to appeal filed by different persons; as mentioned inparagraph No. 1 above.
4. The main ground urged by the learned counsel for the petitioners in Ps. S. L. A. Nos. 516 of 1978 and 525 of 1978 was that it was a night time occurrence and no one had witnessed the incident ; that the accused had been named due to suspicion ; that two of the accused, namely, Asghar Hayat and Hafiz Khan Muhammad were declared innocent by the Investigating Officer and had been placed in Column No. 2 ; that the allegation of `conspiracy' is absolutely false and was introduced in the F. I. R. Merely to rope in more persons from the side of the accused party and that five out 'of the nine accused persons, namely, Asghar Hayat, Sikandar Zulqernain, Mian Khuda Bakhsh, Mian Sardar Bakhsh and Safdar Khan had left for Turkey on the 3rd of July 1978 from where they had returned on the 20th of that month. On learning that they had been falsely involved in a murder case, and lastly that on the day of occurrence Mian Sultan was at Karachi.
5. The learned counsel for the petitioners in Ps. S. L. A. Nos. 5161 and 525 of 1978 vehemently urged that there was sufficient proof of the aforementioned five persons having left for Turkey on the 3rd of July 1978 and in support of this contention, reference was made to the entries in their Passports showing their entry into and departure from Turkey the certificate of the District Health Officer Sargodha certifying that the aforementioned five persons had been vaccinated and inoculated on different dates in June 1978 ; documents showing the issuance of travellers cheques to the five persons in question ; the Manifest passenger list of P. I. A., Islamabad showing their names as passengers, who had boarded a flight from Islamabad for Turkey on 3rd of July 19781 and the Manifest-passenger-list of P. I. A., Karachi; showing the names of the same persons in the list of passengers who had embarked at Karachi from a P. I. A: flight from Turkey on 20th of July 1978. The learned counsel contended further that it was for this reason that one of the persons, namely, Asghar Hayat who had been actually named in the F. I. R. As one of the two persons who had fired at and killed Gul Zaman was. Allowed- bail by the High Court and urged that bail should have, therefore, also been allowed to .The remaining four persons on the same ground With regard to the evidence of conspiracy relied on by the prosecution they contended that the same had been fabricated subsequently by bringing in picture two persons of shady characters, named Nazar and Sultan, who stated before the police that Mian Sultan had called them with a view to hire them to assassinate Gul Zaman and four others arid that at that time Sardar Bakhsh, Safdar Khan and Khuda Bakhsh accused were also present there. (But subsequently the name of Sikandar Zulqernain accused --petitioner was also added amongst those who were present at the time of conspiracy). This statement was recorded for the first time on the 5th of July 1978. Nazar and Sultan P. Ws. Have stated further that they declined to join in the conspiracy ,and that they informed Haji Parvez, Haji Amin and Nawazul Hassan and Ziaul Hassan four of the persons who were to be assassinated along with Gul Zaman, but they did not care to inform either Gul Zaman or the police.
According to the learned counsel for the petitioner in Ps. S. L. A. 516 and 525 of 1978, this evidence is false on the face of it. They therefore urged that the four petitioners roped in by them should also to be released on bail.
6. Learned counsel for Rab Nawaz (petitioner in P. S. L. A. 3-R of 1979), urged on the other hand that bail granted to the five accused, who are respondents in P. S. L. A. 3-R of 1979, should be cancelled.
He submitted that Mian Khuda Bakhsh etc. The five persons mentioned in paragraph No. 4 above, had not in fact gone to Turkey and in any case Sikandar Zulqernain had definitely not gone to Turkey. The main thrust of his arguments however was that the learned High Court should not have gone into the question of, alibi in such detail and almost given a finding on that question,' as it is bound to affect the merits of the case. In support of this contention he cited a number of authorities.
7. We are inclined to agree with this submission and feel that in recording a lengthy order, consisting of 41 typed pages, discussing the question of alibi in minute detail, the learned Judge had afforded an opportunity to the petitioners' counsel to raise this objection. We however, notice that the learned Judge has observed at the end of the impugned order that the trial Court shall not be bound by any view expressed or observation contained in the said order:
8. We have heard the learned counsel for the parties at great length and have carefully considered all the contentions raised by them. But we would not like to express any view with regard to the correctness or otherwise of the plea of alibi of express any opinion as to the merits of the case, as the same are likely to adversely affect the interests of one or on the other party. As such we consider it sufficient to observe that, in the peculiar circumstances of the present case, it would not be proper, in this case, to interfere with the exercise of its discretionary jurisdiction by the learned High Court Judge.
As a. Result we dismiss all the three petitions mentioned in paragraph No. 1 above.