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Petitioner: ASGHAR HAYAT and others VS Respondent: THE STATE
Court Name: Lahore High Court Judge(s): Muhammad Munir Khan, Malik Lehrasab Khan Title: ASGHAR HAYAT and others vs THE STATE Case No.: Criminal Appeal No, 383 and Murder Reference No, 142 of 1982 Date of Judgment:1985-05-24 Reported As: 1985 P Cr. L J 2638 Result: Appeal accepted
JUDGMENT
JUDGMENT ' MUHAMMAD MUNIR KHAN, J.-- This Criminal Appeal No, 383 of 1982, connected Murder Reference No, 142 of 1982 and Criminal Revision No, 759 of 1982 filed by Haji Rab Nawaz complainant for the enhancement of the sentence of Mian Sardar Bakhsh, Mian Safdar, Khan Muhammad, Muhammad Sharif, Zafar Ali and Khuda Bakhsh respondents therein, arise from the judgment of learned Sessions Judge, Sargodha, whereby he on 30-6-1982 convicted Asghar Hayat and seven others, appellants, under section 148, P.P.C. For rioting being armed with deadly weapons and under section 302/149, P.P.C. Read with section 120-B, P.P.C. For causing death of Gul Zaman in prosecution of their common object and in pursuance to a criminal conspiracy and sentenced them as under:- (1)Undersection148, P. P. C.Two years' R.I. each (2)Undersection302/149, P.P.C.(i)Asghar Hayat and Sikandar Zulqarnain appellants to death and a fine of Rs.15,000, in default thereof three years' R.I. each (ii) Khan Muhammad, Muhammad Sharif and Zafar Ali appellants to imprisonment for life and a fine of Rs.10,000, in default thereof two years' R.1. each. (3) Under section 302/120- B, P.P.C.MianKhudaBakhsh, Mian Sardar Bakhsh, Mian Safdar and Sikandar Zulqarnain appellants to imprisonment for life and a fine of Rs.1,000 in default thereof two years' R.I. each. ' It was directed that 2/3rd of the fine awarded under section 302/120-B, P.P.C. If realized shall be paid to the widow and daughters of Gul Zaman deceased. We propose to dispose of all these matters through single judgment.
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2. The occurrence took place on 4-7-1978 at 11-30 p.m. Near the house of Gul Zaman deceased situated in Mohallah Awan Pura of Khushab. The distance between the place of occurrence and the police station is two furlongs. The F.I.R. Exh.P.T. Was lodged by Haji Rab Nawaz P.W.13, the sister's husband of Gul Zaman deceased on 5-7-1978 at 12-15 a.m. At Police Station Khushab which was recorded by Mirza Mehmood Baig, S.H.O., P.W.18. 3. Mian Khuda Bakhsh appellant and Mian Sultan (absconder) are real brothers. Asghar Hayat, Mian Safdar and Mian Sardar Bakhsh are the sons of Mian Khuda Bakhsh appellant and Sikandar Zulqarnain is son of the Khalazad of the father of said Mian Khuda Bakhsh. Haji Rab Nawaz complainant P.W.13 is a Patreir as well as sister's husband of Gul Zaman deceased. Mehmood P.W.14 is the sister's son of the deceased. Haji Muhammad Amir P.W.11 and Muhammad Khan P.W.15 are real brothers. 4. The background of the occurrence as alleged by the prosecution was that before 11-2-1978, a transport company known as "Awan Express Bus Service" was plying its buses on Faisalabad, Sargodha, Khushab and Rawalpindi route. Mian Sultan (absconder), Mian Khuda Bakhsh, Mian Safdar, Mian Sardar bakhsh, Asghar Hayat, Sikander Zulqarnain, Zafar All and Khan Muhammad appellants were the proprietors of the said concern. Muhammad Sharif appellant was the Chief Checker. This Transport Company owned 70/80 buses and 40/50 buses more were on its fleet on commission. The company was having monopoly on this route. On 11-2-1978 another Transport Company in the name of 'Super Awan Bus Service' was commissioned into service on the aforesaid routes Zia-ul-Hasan P.W. And Nawaz-ul-Hasan P.W. (not produced) were its share-holders. Gul Zaman deceased, Pervez, Haji Amir and Haji Rab Nawaz P.Ws. Were the Directors of this concern. Gul Zaman deceased was the Pioneer. It was because of his devoted work, effective efforts and hard labour that this concern flourished rapidly. There were several fights between the Drivers of the rival transport services which led to the registration of criminal cases against the employees of the two concerns at different police stations. Apprehending that their transport business would collapse, the proprietors of 'Awan Express Bus Service' became jealous of Gul Zaman deceased. So Sikandar Zulqarnain, Mian Safdar, Mian Sardar Bakhsh, Mian Khuda Bakhsh and Mian Sultan (absconder) hatched conspiracy to do away with Gul Zaman, Zia-ulHassan, Muhammad Pervaiz, Nawaz-ul-Hassan and Haji Muhammad Amir P.Ws. Share-holders and Directors of 'Super Awan Bus Service', hence this occurrence. 5. As far the main occurrence, it has been stated that on the eventful night, Gul Zaman deceased Haji Rab Nawaz complainant P.W.13, Mehmood P.W.14 and Haq Nawaz (not produced) left Bus Stand of Super Awan Bus Service, Khushab for the house of Gul Zaman situated in Mohallah Awan Pura, Khushab by a Tonga, reaching there at about 11-30 p.m. They disembarked from the Tonga which went away. Just then there came a rashly driven car which stopped near them. Asghar, Hayat, Sikandar Zulqarnain, Zafar Ali, Muhammad Sharif and Khan Muhammad appellants emerged out of it. They all were carrying guns. Asghar Hayat and Sikandar Zulqarnain declared that Gul Zaman would be taught a lesson for competing with their transport service and his life would not be spared. Sikandar Zulqarnain fired at deceased and the first shot hit on his right wrist. Asghar Hayat fired second shot hitting on the left back side of the chest about a Balisht below the shoulder of Gul Zaman as a result of which he fell down. Muhammad Sharif , Zafar All and Khan Muhammad appellants fired more shots only to frighten the eye-witnesses. All the five assailants then decamped in the same car. Gul Zaman was removed from the place of occurrence on a cot and they had hardly covered a few paces when he succumbed to the injuries. The cot was brought back and placed in the courtyard of the house of the deceased. After some time Haji Muhammad Amir P.W.11 and Muhammad Khan P.W.15 came to the house of Gul Zaman deceased. Muhammad Khan P.W.15 told the complainant and others that Sikandar Zulqarnain, Asghar Hayat, Zafar Ali, Khan Muhammad and Muhammad Sharif appellants had come in the car at the bus stand after
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the occurrence and had proclaimed sarcastically {{URDU TEXT}}Rab Nawaz then left for the police station to lodge report. 6. On 5-7-1978 at 9-00 Dr. Muhammad Raees P.W.1 conducted post-mortem examination on the dead body of Gul Zaman. He found following injuries on his body:- (1) Wounds of inlet, five in number, I" x I" each in radius, back of right wrist with three wounds of out- let, each 3/4" x 1/4", 1/2" x 1/4" and 1/2" x 11/2", on the front side. Underlying bones were fractured with blackening and tattooing; (2) Wound of inlet, 1" x 1" in radius, with three wounds of in-let 1/4" x 1/4" each, on middle 1/3rd of back left side 10" below the top of the shoulder; underlying ribs were fractured. Blackening and tattooing was present." ' Three pellets were found in the body which were removed and sealed in a bottle and handed over to the police. ' On internal examination ribs under injury No,2 were found fractured, left pleura was perforated alongwith left lung, pericordium and heart. Eight ounces of semi digested food was in the stomach. ' In the opinion of the doctor, the death occurred due to shock and haemorrhage from injuries No, 1 and 2 which were sufficient to cause death in the ordinary course of nature. These injuries were grievous in nature and were caused by fire-arm. The death was instantaneous. The time between the death and post-mortem was within 10 hours. In cross-examination the doctor stated that injuries No, 1 and 2 were caused from behind and from a close range and that injury No, 1 individually was not fatal. 7. S.I. Mirza Mehmood Baig arrested Khan Muhammad on 6-7-1978.The rest of the accused were declared as proclaimed offenders. Subsequently, on .15-8-1978 Sikandar Zulqarnain and Asghar Hayat were arrested by Mr. Javaid Feroze S.I. P.W.19 from the premises of Lahore High Court, Lahore after their application for pre-arrest bail had been rejected. On 18-8-1978 Malik Saadullah Khan Retd. S.P., the brother of the wife of Mian Sultan (absconder) produced Mian Khuda Bakhsh, Mien Safdar, Sardar Bakhsh and Muhammad Sharif appellants at Police Station Sadar Sargodha before Mr. Javaid Feroze S.I. P.W. 19 who arrested them. Mian Khuda Bakhsh, Sardar Bakhsh and Mian Safdar appellants produced their passports before him which were taken into possession vide memoranda Exh.P.CCC, P.DDD and P.EEE. 8. On 9-9-1978 D.I.-G., Sargodha transferred the investigation of the case to a panel of police officers headed by Rana Abdul Rashid D.S.P., Faisalabad who submitted his report to the D.I.-G. On 16-9-1978. The investigation was then entrusted to Ghulam Rasul S.P. Crimes Branch, Lahore. He investigated the case and declared Asghar Hayat and Khan Muhammad appellants innocent. The D.I.-G. Crimes Branch verified investigation made by S.P. Crimes Branch. The 1.-G. Police, Punjab, had sent for and examined the investigation file. Ultimately, Asghar Hayat appellant was declared innocent. On 27-3-1980, Salim Khan, S.I. Prepared final report and he placed the name of Asghar Hayat appellant in column No,2. 9. To prove its case at the trial, prosecution produced 19 witnesses. Dr. Muhammad Raees P.W.1 proved the post-mortem examination report of Gul Zaman deceased. Muhammad Sultan P.W.8, Muhammad Pervez P.W.9, Haji Zia-ul-Hassan P.W.10, Haji Muhammad Amir P.W.11 deposed about the background of the murder and the criminal conspiracy hatched by Mian Sultan (absconder) and four others for murdering Gul Zaman etc. Atta Muhammad, Head Constable P.W.5, Muhammad Anwar, Head Constable P.W.6 and Manzoor Ahmad, Head Constable P.W.7 have proved various F.I.Rs, registered at different police stations against drivers and other employee of the two rival Transport Services. Haji Rab Nawaz P.W.13 and Mehmood P.W.14 gave the ocular account of the main occurrence. They supported the prosecution version in all its material particulars. They claimed to have seen and identified Sikandar Zulqarnain and Asghar Hayat appellant firing shots on Gul Zaman deceased, which hit on his wrist and back of his chest
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respectively. They stated that Khan Muhammad, Muhammad Sharif and Zafar Ali also indulged in firing in order to scare away the eye-witnesses. Muhammad Khan P.W.5 stated that after the occurrence the aforesaid five appellants armed with guns came to the Bus Stand, Khushab, in a car and told him in a taunting manner that and went away. Abdur Rauf F.C. P.W.16, Mubarik Ali A.S.I. P.W.17 have proved proceedings taken and problamation issued under sections 87/88, Cr.P.C. Against the absconding appellants. 10. Five persons were examined as Court witnesses. Ghulam Rasul Qureshi C.W.1 was Superintendent of Police Crimes Branch, Lahore. He partly investigated the case. He agreed with the result of the investigation arrived at by the panel of investigations headed by Rana Abdur Rashid D.S.P. Saghirul Hassan C.W.2 was posted as D.S.P. Jauharabad in July, 1977. He stated that on the eventful night at 12-30 a.m. He received information about the occurrence through Station House Officer, Khushab. He directed him on telephone to go to the spot and wait for his arrival. When he reached police station at 1 a.m. He found that the Station House Officer was present there who told him that presence of the police on the place of occurrence was not being tolerated by the people. On this he (Saghir-ul-Hassan) went to the spot and in the light of petromax and an electric bulb which was got fixed in the lane by the police officials, he inspected the site and collected two pellets and card-board discs from there. The witness further stated that when he reached the spot Haji Rab Nawaz complainant, Haji Amir P.W. And six/seven other persons of the complainant party were present there. Since there were shrubs of the height of 4/5 feet in between the place of occurrence and the nearby fields, therefore, he directed the S.H.O. To preserve the foot prints of the culprits. The witness further stated that he remained on the spot till 4-00 a.m. But by that time the F.I.R. Could not be registered because the complainant party was waiting for the arrival of certain persons from Sargodha. The witness stated that it was at 6-00 a.m. When S.H.O. Informed him on telephone that the case had been registered. In cross-examination the witness stated that he had inspected the surrounding shrubs and saw foot prints of two persons there. He had advised Pervaiz P.W. On telephone to make report against the actual culprits but the latter insisted on lodging report against 9 persons. Consequently, he told Mirza Mehmood Baig S.H.O. To register case as desired by the complainant party. Rana Abdur Rashid C.W.3 was D.S.P., Faisalabad in August, 1978. He headed the panel of Investigating Officers. The investigating team inspected the spot on 21-8- 1978 and 29-8-1978 and investigated different aspects of the matter at different places including Karachi, Islamabad, Rawalpindi and Faisalabad Zia Qureshi C.W.4 was Assistant Station Manager, P.I.A. Corporation, Karachi Airport who brought complete record of passengers travelling by flight PK-720 coming from Istambul to Karachi on 20-7-1978. He produced photostat copy of the second leaf of the passengers manifest who travelled on this flight. Muhammad Riaz Malik, C.W.5 was Section Officer, Turkey Section, Foreign Office, Government of Pakistan, Islamabad. He brought file No, TUR-VI/2-80 containing letter, dated 20-2-1981 sent to his office by Consulate-General of Pakistan at Istambul, alongwith his report pertaining to the entry of Pakistani Nationals into Turkey. Photostat copy of the letter and reports are Exh.C.W.5/A and C.W.5/B. 11. When examined under section 342, Cr.P.C. The appellants denied all incriminating circumstances. They raised the plea of false implication on account of enmity. Asghar Hayat, Sikandar Zulqarnain, Mian Safdar, Mian Sardar Bakhsh and Mian Khuda Bakhsh also raised the plea of alibi. Mian Khuda Bakhsh stated; "I am innocent. I alongwith Sardar Bakhsh, Safdar Khan, Asghar Hayat, Ansar Hayat, Sikandar Zulqarnain and Imdad Hussain Hamdani had gone to Turkey on the night between 2-3/7-1978 from Islamabad Airport for Ziarat. My son, Amir Sultan, had committed suicide on 4-4-1978 and I was very much depressed on account of his sudden death in young age. To get mental and spiritual solace I alongwith my sons firstly applied for Haj-78 on 6-5-1978. But as the Haj in that year was falling in the month of November, 1978 and we needed immediate mental solace, hence we
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decided to go for Ziarat. Sikandar Zulqarnain and Imdad Hussain Hamdani were the closest friends of my deceased son Amir Sultan and as such they accompanied us in the above-mentioned journey to visit the shrine of Hazrat Abu Ayyub Ansari and to have a view of the relics like 'Kali Kamli' of the Holy Prophet (peace be upon him), Dastar-e-Mubarik, Mahar-e-Nabuwat (Seal of the Holy Prophet), the Bow, which Holy Prophet used in His Wars, Zulfiqar-e-Haideri, and Swords of other Caliphs, the volume of Holy Quran stained with the blood of Hazrat Usman Ghani, the third Caliph and other precious belongings of Holy Prophet Muhammad (peace be upon him). We returned to Pakistan on 20th July, 1978." ' In defence 10 witnesses were examined. Farooq Ahmad, Assistant Station Manager, P.I.A., Rawalpindi/Islamabad Airport, D.W.3, Muhammad Riaz Malik, Section Officer (Turkey Desk), Ministry of Foreign Affairs, Islamabad, D.W.4. Zia Qureshi, Assistant Station Manager, P.I.A., Karachi D.W.7 were produced to prove the alibi pleaded by the 5 appellants. Malik Bashir Ahmad Awan, D.W.1 was Judicial Magistrate, Lahore. He has proved the complaint Exh.D.E. Allegedly filed by Muhammad Sultan P.W.8 list of witnesses Exh.D.G. And Vikalatnama Exh.D.X. Attached with that complaint. He proved statement Exh.D.D. Of Sultan P.W.8 recorded by him and application Exh.D.F. The witness further stated that Sultan P.W.8 had submitted application Exh.D.H. For summoning doctor as a witness and that the photostat copy of the identity card of the complainant, which was on the file of the complaint, was Exh.D.Y. Sh. Bashir Ahmad, S.I. D.W.2 had taken the sample of thumb- impression of Sultan P.W.8 in the presence of the Magistrate and sent the same for comparison with the thumb-impressions of Sultan P.W. On medico-legal report. The report was positive. The witness also obtained application Exh.D.Z. Given by Sultan in the Copying Branch of the District Courts, Lahore. He again sent sample thumb-impressions of Sultan P.W.8 alongwith application Exh.D.EE. Bearing thumb-impression of Sultan, complaint Exh.D.BB. And application Exh.D.Z. To the Finger Print Bureau for comparison. The report was that the thumb-impressions on these documents were identical with the sample thumb-impressions of Sultan. Zafar lqbal D.W.5 has proved Exh.D.W.5/A, the correct photostat copy of report No, 12, dated 19-5-1980 made by Muhammad Pervez P.W. Ehsan Karim D.W.6 stated that the register containing daily diary, dated 7- 7-1978 of P.S. Khushab had been destroyed according to rules. Dr. Tahir Anis, Deputy Police Surgeon, Punjab, Lahore, D.W.8 had examined Sultan P.W.8 on 9-2-1981 at 11-40 a.m. And found 3 contusions on his person caused by blunt weapon. The injuries were simple in nature. Exh. D.W.8/A is the correct carbon copy of the medico-legal report. Ch. Wan Mehmood D.W.9 was Superintendent of Police, Sargodha in July, 1978. He stated that Saghirul Hassan, D.S.P. And Mirza Mehmood Baig, S.H.O. Khushab were called by him who apprised him of the occurrence and the facts of the case. There were some problems regarding the registration of the case. The F.I.R. Was not wholly in accordance with the facts believed by the two officers in consequence of the preliminary investigation conducted by them. Taj Muhammad D.W.10 was Moharrar, P.S. Mitha Tiwana. He produced daily diary of P.S. Mitha Tiwana relating to the month of February, 1979. It contained report No,4 made by Sultan Ahmad son of Noor Muhammad. He also proved photostat copy of report Exh.D.W.10/A under section 498/148/149, P.P.C. Lodged by Nadir Khan in which Sultan son of Noor Muhammad and Ghulam Ahmad son of Muhammad Khan were challaned alongwith five others. In defence documents Exh.D.GG, D.LL, D.MM, Exh.D.W.4-A, D.W.4/K and D.W.3/A, D.W.3/B, C.W.5/A, C.W.5/D, have been tendered and proved in proof of the plea of alibi of the five appellants. 12. The learned trial Court while disbelieving the plea of alibi raised by the five appellants, has believed the alleged motive, conspiracy, the ocular testimony and the abscondence of the appellants and has convicted and sentenced them as stated above. 13. Mr. A.K. Brohi learned counsel for the appellants contended that prosecution has failed to prove the charges of criminal conspiracy and murder of Gul Zaman in pursuance thereof, beyond reasonable doubt; that the F.I.R. Exh.P.T. Is not a genuine document; that there is no reasonable
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ground to believe that Sardar Bakhsh, Khuda Bakhsh, Mian Safdar, Sikandar Zulqarnain and Mian Sultan (absconder) had conspired together to do away with Gul Zaman deceased; that the story of alleged criminal conspiracy stated by Muhammad Sultan P.W. Runs counter to the natural probabilities; that the eye-witnesses namely Haji Rab Nawaz and Mehmood are related, inimical and partisan witnesses; that there is no reliable corroborative evidence and that the five appellants namely Mian Sardar Bakhsh, Mian Khuda Bakhsh, Asghar Hayat, Sikandar Zulqarnain and Mien Safdar were physically present in Turkey at the time of occurrence. Conversely the learned counsel for the State has supported the judgment of the trial Court. Mr. Ejaz Hussain Batalvi the learned counsel for the complainant vehemently resisted the arguments of the learned counsel for the appellants. He maintained that the prosecution case does not suffer from any genuine or reasonable doubt; that the charges have successfully been brought home to the appellants through reliable direct and circumstantial evidence; that the F.I.R. Exh.P.T. Was genuinely drawn up at 12-15 a.m. On 5-7-1978 before any investigation could be conducted; that Sultan Ahmad P.W.8 is an absolutely dependable witness; that his statement finds support from the evidence of Muhammad Pervaiz, Haji Amir and Zia-ul-Hasan P.Ws. And document Exh.P.Q. (Copy of which is Exh. P.Q/I) i,e, the leave application, dated 3-7-1978 written by Zia-ul-Hasan P.W. Containing reference to the alleged conspiracy hatched for his murder; that implicit reliance can be placed on the statement of the two eye-witnesses and that there is ample additional direct/indirect evidence to corroborate the ocular testimony. As far the plea of alibi, the learned counsel for the complainant vigorously stated that it has falsely been created and stands belied by reliable documents. 14. As appeal is continuation of the trial and the proceedings are A also before us for the confirmation of the sentence of death, so we have examined entire oral as well as documentary evidence on file and have attended to the elaborate arguments addressed by the learned counsel for the parties with care. We propose to appreciate the case and evidence in accordance with the well-settled principles for the appreciation of evidence in such like cases. We would first of all discuss and consider the prosecution case in order to come to an independent finding as to the truth or falsity of the story of the prosecution and the credibility of the prosecution witnesses more particularly the eye-witnesses and the witnesses of the alleged criminal conspiracy. 15. To start with its foundation i,e, the F.I.R. The prosecution case is that the occurrence took place at 11-30 p.m. On 4-7-1978 and F.I.R. Exh.P.T. Was registered 45 minutes thereafter at 12-15 a.m. On 5-7- 1978. There is serious dispute between the parties as to the time of the recording of case and circumstance in which F.I.R. Was actually registered. The crucial question to be considered is whether the F.I.R. P.T. Was lodged at 12-15 a.m. On 5-7-1978 at Police Station Khushab before any preliminary investigation could be made or not. 16. On careful examination of the relevant evidence and circumstance appearing in the case, we feel that the recording of the F.I.R. At 12-15 a.m. On 5-7-1978 is highly doubtful. Saghirul Hassan C.W.3 the then concerned S.D.P.O./D.S.P. Has categorically stated that the F.I.R. Was not recorded uptil 4-00 a.m. On 5-7-1978, because the complainant party insisted that they would get the case registered after some persons would arrive from Sargodha. We do not see any reason to disbelieve him. In any case the controversy between S.H.O. Mirza Mehmood Baig P.W.18 and the S.D.P.O. Saghirul Hassan P.W.3 on the point of the time of the recording of the F.I.R. Exh.P.T. Has made the exact time of recording of case uncertain and shrouded in mystery. Be that as it may the fact remains that in the circumstances of the case there are reasonable apprehensions that the F.I.R. Was recorded after consultation, deliberation and preliminary investigation. This defect by itself may not be sufficient to throw away the prosecution case yet it is certainly a suspicious circumstance which ordinarily puts the Court on its guard against placing implicit reliance on the prosecution version given therein. The foundation of the prosecution case is thus somewhat shaky.
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Whether on this weak foundation, the prosecution has or has not been able to construct a structure strong enough to withstand judicial scrutiny and test is a question to which we shall advert in the later part of the judgment. 16. This brings us to another important part of the prosecution story i,e, criminal conspiracy in pursuance whereof Gul Zaman was allegedly murdered. The prosecution case is that Mian Sultan, Mian Khuda Bakhsh, Mian Sardar Bakhsh, Mian Safdar, and Sikandar had conspired to kill Gul Zaman etc. And it was in execution of that plan that Sikandar Zulqarnain, Asghar Hayat, Khan Muhammad, Zafar Ali and Muhammad Sharif had gunned down Gul Zaman at eventful time. There were two important witnesses of the conspiracy, namely, Muhammad Sultan and Nazar Muhammad. Out of them, only Muhammad Sultan was produced and Nazar Muhammad was given up as having been won over. The prosecution in this regard also relied on the statements made by Muhammad Pervaiz P.W.9, Ziaul Hassan P.W.10, Haji Muhammad Amir P.W.11 and document Exh.P.Q. Muhammad Sultan P.W.8 stated that on 30-6-1978 one Fateh Muhammad came to him and told him that Mian Sultan (absconder) wanted to see him and Nazar Muhammad in the office of Awan Express Service in Sargodha and that when he and Nazar Muhammad went to the office of Awan Express Service on 1-7-1978 Mian…
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