1995 P Cr (PLP)

7. The learned counsel for the State, on the other hand, has not opposed the prayer as, according to him, there are infirmities in the impugned judgment which would call for reappraisal of evidence.

8. Although the appellants-convicts stand convicted under section 302/34, P.P.C. and sentenced to imprisonment for life yet a Court of appeal can suspend a sentence where it is of the view that the appraisal of evidence by the trial Court needed examination and that the said appraisal is against the law laid down. But while doing so, it would confine itself to those infirmities in the judgment which would show that conviction and sentence were not sustainable. This is in line with the view taken by this Court in Altaf Hussain Shah v. The State 1986 PCr.LJ 2202. This Division Bench's order is in fact based on a judgment of the Honourable Supreme Court reported in Abdul Ghaffar, v. Anwarul Hassan etc. 1978 SCMR 140 wherein it was observed:-- "Criminal Procedure Code (V of 1898)

S. 426

Sentence, suspension of

Bail

High Court, to avoid prejudicing hearing of appeal, referring in its order to fact of case against first respondent, being based solely on circumstantial evidence

High Court further observing evidence relied upon by prosecution to be not relevant to respondent's guilt and other evidence though relevant yet weak--?Identity of dead body also observed to be not established

High Court, held, carefully examined judgment under appeal and allowed bail on being satisfied as to sufficient cause being made out for action under S.426 and express assessment of prosecution case not given to avoid pre-judging hearing of appeal." In a case reported in Karamatullah v. The State 1989, PCr.LJ 236 sentence of the convict was suspended as the identity of the a4sailants was found to be doubtful.

9. Coming to the facts of the present case in the light of the afore? referred precedent case-law, I am of the view that the convicts-petitioners have made out a case for suspension of sentence for following reasons which arise out of the infirmities in the judgment in the light of which the conviction may not be sustainable:-- (i) Admittedly the prosecution witnesses could not identify the assailants at night. They could not mention even the features of the assailant (ii) While discussing the evidence of identification of the appellants, the learned trial Court. in Para. 16 of the judgment observed:-- `Neither in the proceedings nor during the statements before the Court the P.Ws. ascribed any role to any of the two accused which they performed at the time of occurrence' Without commenting deeper on this dimension of the prosecution evidence, where no role is ascribed to the accused by the witnesses who identified them, the evidentiary value of the identification parade loses credibility. I am fortified in my view by a judgment of the Honourable Supreme Court reported in Ghulam Rasool and 3 others v. The State 1988 SCMR 557 wherein it was held:-- Evidence Act (I of 1872)

S. 9

Identification parade

Role of accused at time of commission of offence not described by witness. Inherent defect

Evidence of witness identifying accused in such identification parade lost its efficacy and not relied upon' (iii) The appellants-petitioners in this case were arrested on 1-12-1992 however, it is in evidence that they joined investigation on 6-10-1992. Discussing this aspect of the prosecution case, the learned trial Court referred to the statement of P.W.12 Rana Aqeel, M.I.C. who supervised the test identification parade and P.W.16 Khurshid Alam, Inspector and observed as follows:- `He further added that he had gone through the police file according to which the accused joined police investigation in the presence of prosecution witnesses on 6-10-1992. Khurshid Alam, Inspector (P.W.16) said during cross-examination that the accused Ghulam Nabi Hazoor Bakhsh joined the investigation at the 6-10-1992 in the presence of the complainant," The learned trial Court in para. 17 of the judgment referred to statement of P.W.3 Manzoor Ahmad who is Lumberdar of the area who said "... that Khurshid Alam, Inspector had called Ghulam Nabi and Hazoor Bakhsh at the site on second and third day of the occurrence and interrogated. At that time, this P.W., Haji Muhammad Nawaz complainant, Ghulam Muhammad, Peer Bakhsh and Khaliq P.Ws. were present. Wahid Bakhsh (P.W.7) also admitted during cross-examination that on the very first day Khurshid Alam, Inspector had summoned Ghulam Nabi and Hazoor Bakhsh accused and joined them in the investigation and the P.Ws. were also present. According to him, these two accused remained with the investigation for about 3-1/2 months and they remained under detention of the police'. It is apparent from the afore-referred analysis of the prosecution evidence by the learned trial Court that the appellant-convicts had joined the investigation many weeks before the test identification parade was held and the prosecution witnesses had ample opportunities to see them. (iv) It is manifest from the judgment of the learned trial Court that the appellants-convicts and the complainant resided nearby and were known to each other for quite some time. For instance in para.17 of the judgment the learned trial Court observed:-- "P.W.1 Abdul Latif admitted during cross-examination that the distance between the place of occurrence and the house of Ghulam Nabi and Hazoor Bakhsh is 8/9 Acres. He admitted it correct that complainant party and the accused party are his neighbours and both the parties are known to each other. He admitted that the accused persons and the complainant party were living in their Basti since long and were on visiting terms with each other." (v) The learned trial Court had itself created dent in the evidentiary value of the identification parade by making an observation at page 10 of the judgment which is as follows:-- "There is sufficient material on record to suggest that not only the accused were earlier known to the P.Ws. but the P.Ws. had sufficient occasions of seeing them with the police much before the convening of the identification parade." (vi) The learned trial Court disbelieved the recovery of weapons of offence and observed in Para. 19 of the judgment that:-- "No empty was collected or sent for wedding (Note: this word has incorrectly been written. Actually it should have been `comparison') therefore, the recoveries of these two pistol's is not a conclusive or important piece of evidence with the prosecution."

10. For what has been discussed above, the sentence of Ghulam Nabi and Hazoor Bakhsh petitioners awarded to them by Mr. Fakhar Hayat, the learned Additional Sessions Judge, Khanpur, through his judgment, dated 19-12-1994 is E suspended subject to their furnishing bail bonds in the sum of Rs.1,00,000 (Rupees one lac only) each with two sureties each in the like amount to the satisfaction of Deputy Registrar of this Court. It is clarified that any observation made herein qua the judgment is tentative and shall not affect the merits of the main appeal. N.H.Q./G-277/L ??????????? Sentence suspended.