ZIA MAHMOOD MIRZA, J.-- Through this application under section 426, Cr.P.C. Mian Abdul Kabir the petitioner prays for suspension of his sentence and grant of bail till the decision of his appeal.
2. The petitioner and 8 others were sent for trial by the Punjab Special Court for Speedy Trials No.2, Lahore for murdering Sh. Muhammad Asghar and 3 others namely Muhammad Afzal, Muhammad Sadiq and Rashid. Out of the 8 accused persons petitioner alongwith Mehraj Din, Fazal Ahmad and Manzoor Ahmad were charged under section 302/109, P.P.C. On the point of conspiracy the prosecution examined Javaid Iqbal as P.W.5, Mian Maqsood as P.W.11, Abdul Wahid as P.W.9 and Sarwar Javaid as P.W.10. The occurrence took place on 4-1-1985. The first information report was lodged by Javaid Iqbal son-in-law of Sh. Muhammad Asghar deceased. Javaid Iqbal stated in the F.I.R that 7/8 days before the occurrence Maqsood Ahmad P.W.11 told him that Mian Fazal Ahmad, Mian Mehraj Din, Mian Abdul Kabir and Mian Manzoor Ahmad had conspired to commit the murder of Sh. Muhammad Asghar and about this fact he informed his father-in-law. Abdul Wahid P.W.9 did not support the prosecution version and he was allowed to be cross-examined. The evidence of Mian Maqsood P.W.11 also shows that it was based not on his direct knowledge as according to him he came to know about the conspiracy from Abdul Wahid P.W. The learned trial Court acquitted Mian Mehraj Din, Fazal Ahmad and Manzoor Ahmad. The petitioner has been convicted under section 302/109, P.P.C. On four counts for abetting the offences of murder of Sh. Muhammad Asghar, Muhammad Afzal, Muhammad Sadiq and Rashid, deceased and on each count he has been sentenced to death and a fine of Rs.10,000 or in default of payment of fine to undergo R.I. For four years. It was also ordered that on each count he shall pay Rs.10,000 as compensation to the legal heirs of the deceased. The conviction of the petitioner has been mainly based on the evidence of Sarwar Javaid P. W.10 whose evidence was found to have been corroborated by circumstantial evidence i.e. The incident of petitioner going abroad and coming back after the incident. Since it was on the strength of the evidence of this witness that the petitioner was convicted it will be useful to summarise his evidence given in the Court. He deposed that on 19-12- 1984, he found Noora Kashmiri, Kabir Ahmed, Mehraj Din, Fazal Ahmad, Manzoor and Ikhlaque Ahmad in the office of Sartaj Steel Mill conspiring for the murder of Sh. Muhammad Asghar. He stated that Mian Kabir, accused told Kashmiri absconder that the weapon had been received and as to why Sh. Muhammad Asghar has not been murdered so far, whereupon Noora Kashmiri informed him that Sh. Muhammad Asghar was keeping 3/4 armed persons with him upon which Mian Kabir said that all should be done away with. He further stated that the petitioner told Noora Kashmiri thhat the case would be registered against him but he would be out of Pakistan, and that he would get the other accused acquitted. According to the witness he informed Sh. Muhammad Asghar about this talk who told him that he had already been told about the conspiracy. It is also established on the record which fact was not disputed by the learned counsel for the petitioner that the petitioner went abroad on 23-12-1984 and returned to Pakistan on 7-1-1985 whereas the occurrence took place on 4-1-1985. The findings of the learned trial Court are reproduced below for ready reference: "Now coming to the fact of conspiracy, the statement of Sarwar Javaid needs some corroboration.
He had no direct enmity with the accused. His brother-in-law was an employee at Sartaj Steel Mill owned by Fazal Ahmad, accused. I have already discussed that I was impressed by the statement of this witness. But for his connection, I would have accepted his statement without corroboration.
There is very strong corroboration against Abdul Kabir, accused. It was stated by Sarwar Javaid, that at the time of conspiracy it was Abdul Kabir, accused who told Noora Kashmiri that the weapon had been received and as to why Sh. Muhammad Asghar had not been murdered and when Noora Kashmiri told him that Sh. Muhammad Asghar was keeping 3/4 armed persons with him, he told Noora Kashmiri that all should be done away with. He further told Noora Kashmiri that the case would be registered against him but he would be out of Pakistan. According to Sarwar Javaid, Abdul Kabir was the person who had actively participated in the conspiracy. The conspiracy was hatched in Sartaj Steel Mill on 19-12-1984. Abdul Kabir, accused left the country for London on 23-12-1984 and returned to Pakistan on 7-1-1985. It would show that on the fourth day of conspiracy he left the country and on the third day of the occurrence, he returned to' Pakistan.
Witnesses may tell lie but circumstances do not. His absence from the country exactly during that period clearly involves him in the conspiracy and I take his absence from the country to be a very strong circumstance against him and a corroboration of the statement of Sarwar Javaid P.W."
3. The main burden of arguments presented on behalf of the petitioner by his learned counsel Mr. Ijaz Hussain Batalvi were:- (i)That Noora Kashmiri was neither charged under section 302/149, P.P.C. Nor convicted for conspiracy, therefore, the petitioner in the absence of any person could not have been held to have conspired because there could be no conspiracy without the association of another person; (ii)That in any case the circumstantial evidence i.e. Petitioner's going abroad and coming back held to be a strong corroborative circumstantial evidence was too weak to base conviction of the petitioner; (iii)That the name of Sarwar Javaid P.W.10 was not mentioned in the F.I.R. As one of the witnesses.
4. Learned counsel for the petitioner has also placed on record a photo copy of medical report of Board of Doctors who examined the petitioner who has since been admitted to hospital for treatment. According to the majority opinion of this report the stay of the petitioner in the hospital was found to be in the interest of the patient's life. According to the opinion the petitioner was suffering from Diabetes Melliatus which disease had not yet 'been controlled due to multiple reasons. However, nothing, turns on it as the learned counsel for the petitioner when asked, submitted that the petitioner at present does not seek bail on medical ground. According to the learned counsel it is a fit case for suspension of sentence of the petitioner and grant of bail to him till the decision of the appeal. He pointed out that the hearing of the appeal is not likely to take place in the near future and it will take considerable time for the additional reason that whenever the appeal was fixed for hearing a legal objection was raised that the appeal was not competent on behalf of those accused persons who absconded and were tried in absentia and convicted which law point has to be decided before the case was heard on merits and due to which the hearing of the appeal of the petitioner to whose case the said law point is not related is also being delayed.
5. Learned counsel for the complainant and the State opposed the application who maintained that deeper analysis and appraisal of evidence at this stage for decision of miscellaneous application for suspension of sentence and grant of bail was not permitted under the law. They also argued that the petitioner has been convicted for conspiring for commission of very serious offence of murder in which four persons were killed, therefore, the application was liable to be dismissed.
6. We have considered the arguments advanced by learned counsel from both the sides. We are not inclined at this stage to express any opinion about the argument of non-framing of charge against Noora Kashmiri under section 302/109, P.P.C. And its affect on the conviction of the petitioner, lest it may not prejudice the merits of the case. This question shall be examined in detail at the time of hearing of the appeal. Suffice it to say that the learned trial Court, as is evident from para. 2 of its judgment, was conscious of this fact as observed by him that since Noora Kashmiri was being tried for the main offence, therefore, it was not found necessary to frame charge of conspiracy separately against him. It is evident from this observation that Noora Kashmiri was, neither exonerated from nor acquitted of the charge of the conspiracy.
7. There is no cavil with the proposition that deeper analysis/appraisal of evidence at the time of deciding miscellaneous application for suspension of sentence and grant of bail is not to be undertaken. However, the Court is not debarred at this stage from examining the findings of the learned trial Court in order to form an opinion regarding exercise of discretion under section 426, Cr.P.C. In favour of or against the grant of bail. This discretion, it may be observed, is not fettered or restricted merely because a very serious offence like murder has been alleged to have been committed. It is also not affected by the quantum of sentence passed against the accused. This discretion has to be exercised judicially after taking into consideration the attending circumstances. As is manifest from the findings of the learned trial Court the conviction of the petitioner has been based mainly on the evidence of Sarwar Javaid P.W.10 whose evidence was held to have been corroborated by circumstantial evidence of act of the petitioner going abroad and returning to the country after the offence was committed though the learned trial Court also held that the evidence of Sarwar Javaid P.W.10 even without any corroboration was sufficient to convict the petitioner as it inspired confidence.
8. The question which arises for consideration in this case is whether in the circumstances and in view of this finding it is a fit case where discretion can be exercised in favour of the petitioner for suspension of his sentence. We have given our anxious consideration to this question. The statement of Sarwar Javaid P.W.10 was recorded by the police immediately after the occurrence as per findings of the learned trial Court who after having heard the incident of murder, of his own approached the police for giving evidence. According to this witness he also informed Sh.
Muhammad Asghar deceased who in turn told him that he had already been informed about the conspiracy. According to him in the conspiracy the other three acquitted accused persons were also associated as they were allegedly present at the relevant time. When this witness made statement before the police the petitioner had already gone abroad. The omission of the name of Sarwar Javaid P.W.10 in the F.I.R. As one of the witnesses prima facie is not without significance. The acquittal of three co-accused namely Mian Mehraj Din, Fazal Ahmad and Manzoor Ahmad from the charge of conspiracy who as observed above were named by Sarwar Javaid P.W.10 to be present when he heard talk of the petitioner in the Factory on 19-12-1984. In our view without expressing any opinion on merits, these matters require serious consideration and further examination for determining their effect on the evidentiary value of Sarwar Javaid P.W.10 and whether the act of petitioner going abroad and returning after commission of offence could be treated to be independent corroborative circumstantial evidence. It prima facie appears from the judgment of the learned trial Court that the evidence of Sarwar Javaid P.W.10 was not examined in the context of the above-mentioned circumstances. We are satisfied that this is a fit case for exercise of discretion in favour of suspension of sentence and grant of bail to the petitioner till the decision of the appeal. We are told that the petitioner was enlarged on bail by the learned trial Court and it was nobody's case that he misused this concession during the trial.
9. For the foregoing reasons this application is accepted, the sentence of the petitioner is hereby suspended and he is allowed bail in the sum of Rs. One lac (Rs.1,00,000) with two sureties in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court. Criminal Miscellaneous No.6 of 1989 is disposed of.
S.A./A-707/L