2013 PLP 1779 (YLR)

SADIQ HUSSAIN BHATTI, J.

Through listed application M.A. No.871 of 2013, the appellants seek suspension of sentence awarded to them vide impugned judgment dated 28-1-2013, passed by the learned 1st Additional Sessions Judge, Mirpurkhas in Sessions Case No.126 of 2006, whereby the appellant Ghulam Rasool was convicted and sentenced to suffer R.I. for life, whereas appellant Khair Muhammad was convicted and sentenced to suffer R.I. for 12 years.

2. Learned counsel for the appellants has contended that the sentences awarded to them under sections 114, 302(b), 337-F(v) and 337-L(2) are void, ab initio, illegal and against the provisions of Penal Code as well as other law and equity; the conviction awarded to appellant Ghulam Rasool under section 114, P.P.C. is not warranted by law, which is no offence, nor it provides any punishment under Penal Code or any other law; both the appellants have not caused any injury to the deceased and their vicarious liability and alleged common intention require determination while hearing the main appeal; appellant No.2 allegedly caused lathi blow to one P.W., and his role and vicarious liability also require consideration at final disposal. Learned counsel also contended that conviction and sentence awarded to both the appellants under section 302(b), P.P.C. in terms of section 511, P.P.C. are also void, ab initio. He submitted that during trial both the appellants were on bail. He further submitted that due to heavy rush of work, the appeal is not likely to be disposed of in near future, hence the appellants are entitled to bail under section 426, Cr.P.C. Further, the learned counsel for the appellants has also stated that both the parties have compounded the offence outside the Court and such compromise applications which are listed at Sr. Nos.2 and 4, are also filed. He contended that for obtaining their signatures as well as to fulfil other requisites, at least the appellants may be enlarged on bail during pendency of the instant appeal.

3. Learned A.P.-G. strongly opposed the suspension of sentences awarded to the appellants on the ground that after final conclusion at trial, the appellants were found guilty of the alleged offences, in spite of that, both of them were awarded lesser punishment. He also submitted that after appraisal of the evidence, brought on record, the appellants deserve capital punishment, hence they are not entitled for suspension of sentences as well as grant of bail under section 426, Cr.P.C.

4. After having heard the submissions advanced at Bar by the counsel for the respective parties and perused the impugned judgment. To find out if any case for suspension of sentence is made out, as prayed by learned counsel for the applicant/accused.

5. Tentative assessment of evidence on the basis of which finding of guilt is given is not debarred while considering the application for suspension of sentence under section 426, Cr.P.C.

6. During the occurrence of the above incident, the part which is assigned to the appellant/accused Ghulam Rasool is that he instigated co-accused Abdul Qadir by saying that "you are watching" on which co-accused Abdul Qadir fired on deceased by whipping out revolver from the fold of his Shalwar. Whereas the role assigned to appellant/accused Khair Muhammad was that he inflicted the lathi blows on the arms and legs of P.W. Ajab Khan.

7. The punishments which are awarded to the appellants/accused are novel. Against accused Ghulam Rasool to suffer imprisonment for life for offence committed under section 114, P.P.C. Section 114, P.P.C. is not an independent Section but an enabling Section which is to be treated with main offence. Strangely, the same accused is sentenced to suffer R.I for 12-1/2 years (one of the longest term of the main offence of committing murder, punishable under section 302(b), P.P.C. r/w section 511, P.P.C.). Again section 511, P.P.C. is not an independent section, it is to be read with main offence. Section 511, P.P.C. reads as follows:-- "Whoever attempts to commit an offence punishable by this Code with (imprisonment for life) or imprisonment, or to cause such an offence to be committed, and in such attempt does any act towards the commission of the offence, shall where no express provision is made by this Code for the punishment of such attempt, be punished with {imprisonment of any description provided for the offence, for a term which may extend to one-half of the longest term of imprisonment provided for that offence}, or with such fine {daman} as is provided for the offence, or with both."

8. The important thing worth-considering of this section is the following few lines which is the wisdom of section, "and such attempt thus any act towards commission of the offence, shall, where no express provision is made by the Code for punishment of such attempt". I have also considered another aspect which is also very strange as both the above named accused are sentenced to suffer imprison-ment for 12-1/2 years under section 302(b), P.P.C. r/w section 34, P.P.C. The punishment for abetment is awarded to only one accused and the sentence of abetment is quite severe than the main offence.

9. All the above facts and circumstances and the observations clearly demonstrate that the learned trial Court has not gone through the relevant provisions of law. He should be careful and should not read the provisions of law in cursory manner.

10. For the foregoing reasons, the sentences awarded to the appellants/accused namely Ghulam Rasool and Khair Muhammad are hereby suspended during the pendency of their appeal. Consequently, the appellants/accused are released on bail subject to their furnishing solvent surety in the sum of Rs.200,000 (Two lac) each and P.R. Bonds in the like amount to the satisfaction of the Additional Registrar of this Court. HBT/G-18/K Sentence suspended.