1996 P Cr (PLP)

Muhammad Inayat Ullah Cheema for Petitioner. Muhammad Aslam Malik for the State. F.I.R. No.31/93 was registered at Police Station Ravi Road, Lahore on 15-1-1993 under section 302/324/34, P.P.C. wherein Abdul Majid, his father, and Abdul Rauf, his servant were the co-accused having been sent up to stand their trial. The accused nominated in the F.I.R. were tried by Mr. Allah Bakhsh Ranjha, Additional Sessions Judge, Lahore vide judgment, under appeal dated 16-5-1995. Abdul Majid and Abdul Rouf were acquitted while the petitioner was convicted under section 302-C, P.P.C. and was sentenced to 14 years' R.I. and was ordered to 'pay Rs.20,000 as compensation under section 544-A, Cr.P.C. and in default of payment of fine he was to undergo simple imprisonment for 6 months. He was further held entitled to the benefit of section 382-B, Cr.P.C. It has been submitted by the learned counsel for the petitioner that the trial Court in the judgment under appeal in paragraph 34 had held that the petitioner acted in himself-defence of person and property and submitted that the trial Court omitted to look into the provisions of section 100, P.P.C. and section 103, P.P.C. and that in view of the said omission the conviction may not be upheld and/or sentence may not be maintained. Learned counsel for the State has opposed the application of suspension of sentence on the ground that at this stage the merit of the case cannot be discussed and it was only to see the prima facie out of the judgment and the same shows that a Court of competent jurisdiction had convicted the petitioner and had sentenced him to 14 years' R.I. and the petitioner's case was not of suspension of sentence.

2. The trial Courts while discussing the plea of the present petitioner of self-defence of person and property had also mentioned that the glasses of the hotel were broken and the pieces of glass were taken into possession vide memo. Exh.P.O. by P.W.17. the Investigating Officer. The following observations amounted to findings:-- "So it clearly means that the mob consisting of the relatives and Bradari of the complainant attacked upon the hotel of Muhammad Qurban accused and he being already in possession of licensed weapon lying in his hotel acted in his self-defence of his life and property which resulted into the death of Manzoor Hussain and Ali Ahmad deceased. " While convicting the appellant and awarding the sentence the trial Court failed to take notice of the provisions of section 100, P.P.C. Section 103, P.P.C. and section 106, P.P.C. which prima facie shows that at the final stage of the appeal the complexion may be entirely different.

2. The plea of self-defence of person and property were taken before the trial Court and even at this stage the said plea-can be taken into consideration 8 without prejudice to the merits of the appeal of the petitioner. In a case falling within section 100 "firstly", "secondly" and section 103, P.P.C. "thirdly" read with provisions of section 106, P.P.C. 'the accused is the judge of his own apprehension and his apprehension cannot be weighed in golden scales, at least at this stage, without looking into the evidence of the file.

3. In view of what has been discussed above this application is allowed. The sentence of the petitioner is suspended and he shall be released on bail subject to his furnishing bail bonds' in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of A.C./Duty Magistrate, Lahore. N.H.Q./M-42/L Sentence suspended.