' MUHAMMAD BASHIR KHAN JEHANGIRI, J.---Criminal Petitions Nos.105 and 108 of 1995 for Special Leave to Appeal are connected matters involving common question of law and are directed against the same order of a learned Division Bench of Peshawar High Court, Abbottabad Bench, Abbottabad, dated 21-6-1995 in Criminal Appeal No, 22 of 1994, jointly filed by Suleman and Muhammad Farid, petitioners in Cr.P.L.A. No, 108/1995 whereby their convictions under sections 302 and 307 read with section 34, P.P.C. And sentences to imprisonment for life and fine of Rs,50,000 each, on the charge of murder were maintained. In Criminal Petition No,105/1995 for Leave to Appeal Haider Zaman, besides bringing to challenge the order of acquittal of Dildar alias Kala respondent No,3, has also sought enhancement of sentences of Suleman and Muhammad Farid, respondents Nos. 1 and 2, from life imprisonment to those of death.
2. Criminal Petitions Nos. 107 and 109 of 1995 for Special Leave to Appeal have been filed to challenge the order also dated 21-6-1995 in Criminal Appeal No,28 of 1994 passed by the same learned Division Bench of Peshawar High Court, Abbottabad Bench, Abbottabad, whereby the order of acquittal of Haider Zaman and Saifur Rehman, petitioners in Cr.P.L.A. No, 107/1995 was set aside and the former was convicted under section 324, P.P.C. And sentenced him to imprisonment for three months and a fine of Rs,2,000 or in default to undergo rigorous imprisonment for one month and the compensation of Rs,3,000 to Mir Zaman P.W. Saifur Rahman, petitioner, was also convicted under section 326, P.P.C. For causing grievous injury to Mst. Shamim Akhtar injured by means of shooting and was sentenced to rigorous imprisonment for seven years and a fine of Rs,5,000 or in default to undergo rigorous imprisonment for one year with a further direction to pay compensation amounting to Rs,10,000 or in default to suffer imprisonment for six months. In Cr.
Petition No, 109/1995 Mst. Shamim Akhtar has sought the conviction of the two respondents under section 307/34, P.P.C. And awarding of enhanced sentences of imprisonment as provided thereunder.
3. Mr. Muhammad Nawaz Abbasi, learned counsel for Haider Zaman and Saifur Rehman, petitioners, contended, firstly, that the plea of alibi raised by Dildar alias Kala respondent has been entertained by the High Court on the strength of copies of certain document which was of no evidentiary value, in that, the same had only been substantiated by evidence of Naik Muhammad Yar without regard being had to his cross-examination which had rendered the veracity of the plea highly doubtful and, therefore, his abscondence would go a long way to prove his guilty conscience and, secondly, that the number of injuries on the person of the deceased was commensurate with the nature of the assailants. In this context, reliance was placed on the case of Ghulam Sikandar and another v. Mumraiz Khan and others (PLD 1985 SC 11). The learned counsel for the petitioners has assailed the convictions and sentences of the petitioners saying that their order of acquittal and recording of their convictions and sentences in a private complaint was completely unwarranted, in that, even F.I.R. No, 83 dated 23-10-1986, which had been cancelled, had been lodged with the delay of 14/15 hours besides being a counterblast to the cross-case registered against the father of Mst. Shamim Akhtar for the murder and attempted murders.
4. Sardar Muhammad Ishaq Khan. Learned counsel for the petitioners in Cr.P.L.As. Nos.108 and 109 of 1995, inter alia, contended that due to the acquittal of Dildar alias Kala co-accused of the petitioners on the plea of alibi, the eye-witnesses, who were highly interested, stood certainly discredited, therefore, their testimony without any independent corroboration qua the petitioners could not be believed to convict the petitioners. The learned counsel in support of Criminal Petition No, 109 of 1995 for Leave to Appeal contended, firstly, that the case being of waylaying no distinction could possibly be made on the basis of individual role, therefore, acquittal of Khani Zaman respondent No,3 was unwarranted and, secondly, that having believed the evidence of eyewitnesses in the case, the element of common intention of all the three respondents was clearly established which warranted their convictions and sentences under sections 307/34, P.P.C. For effective attempt at the life of Mst. Shamim Akhtar P.W., by firing.
5. In view of the contentions raised by the learned counsel, we grant leave in all these petitions to consider whether the learned Judges of Division Bench in the High Court had correctly analyzed the evidence in accordance with the principles governing the safe dispensation of criminal justice and had derived properly the conclusions by appreciating in its proper perspective the evidence on record.