2009 PLP 61 (MLD)

GHULAM DASTAGIR A. SHAHANI, J.

An application under section 426, Cr.P.C. for suspension of sentence is submitted on behalf of the appellant/accused Rajib Ali son of Juma Otho in a Crime No.63 of 1999 of Police Station Kotri under sections 302/324/337-A(ii)/504/147/148/149, P.P.C.

2. Brief facts of the case are that on 2-7-1999 one Malang son of Paliyo Leghari recorded F.I.R. alleging therein that he had a hotel at Labour Square and about 15-20 days earlier they had a quarrel with Mehar tribe and the accused party were from the side of Mehar tribe, therefore, complainant and accused party were annoyed with each other. He further alleged that on the date of incident, complainant along with Ghulam Rasool Leghari, Pandhi Leghari and Qasim Leghari were sitting at their hotel and at about 1745 hours, his relative Khan Muhammad Leghari came over there in Rickshaw. According to complainant accused Juman, Rajib and Qabool were having pistols in their hands, Nawaz, Zaman, Talib, Mumtaz, Imam Ali, Sain Bux and Qamar having lathies came there and abused Khan Muhammad Leghari, and said that since he had a quarrel with their friends, they would not spare him. While saying so accused Nawaz, Talib and Zaman gave sticks blows to Khan Muhammad. On seeing this situation, complainant, Ghulam Rasool, Pandhi and Qasim went to rescue Khan Muhammad. In the meanwhile accused Juman, Rajib and Qabool fired straight shots upon them with intention to kill them. Fire shots hit Qasim on his head and Pandhi on his arm. Due to fire hurt Qasim fell down, and while, abusing, accused went away. According to complainant, during such quarrel accused Jummo, Mumtaz, Zaman and Qamar also received injuries. Complainant saw that Qasim had died at the spot after having bullet injuries on his head, whereas Pandhi was injured and blood was ozzing. Ghulam Rasool and Khan Muhammad also received injuries of sticks. However, vide judgment, dated 23-12-2006 in S.C. No.27 of 1999, accused Rajib was convicted and sentenced to undergo R.I. for 10 years, for offence punishable under section 302, P.P.C., so also fine of Rs.3000 for the offence punishable under section 148 and in case of failure he will undergo S.I. for three months. Whereas, accused Mumtaz was convicted and sentenced to undergo R.I. for two years as Tazir and liable to pay Arsh of Rs.20,360 for the offence punishable under section 337-A(ii), P,P.C. and in case of failure he will further undergo S.I. for nine months and fine of Rs.3000, was also imposed upon him for the offence punishable under section 148, P.P.C. and in case of failure he will undergo S.I. three months more. Accused Nawaz, Talib and Zaman were found liable to Daman of Rs.1000 each to injured Khan Muhammad for the offence punishable under section 337-A (ii), P.P.C. and in case of failure to pay Daman, they would undergo S.I. for one month. Fine of Rs.3000 each, was also imposed upon them under section 148, P.P.C. and in case of failure they would undergo S.I. for three months. Whereas, accused Muhammad Jumman, Qabool, Qamar, Imam Ali and Sain Bux were given benefit of doubt and acquitted under section 265-H(1), Cr.P.C. Hence, appeal was preferred. Accordingly application under section 426, Cr.P.C. for suspension of sentence on behalf of Rajib Ali also submitted.

3. Heard Mr. Khawaja Ayatullah learned counsel for the appellant, who states that on merits appellant Rajib Ali is entitled for suspension of sentence and he may be admitted to bail during pendency of appeal on the ground that there are major contradictions in evidence and co-accused having similar role, namely Mohammad Jumman and Qabool have been acquitted, through impugned judgment. He further added that accused have also been acquitted in a case of 13-D A. Ordinance, vide judgment, dated 19-5-2007 by the learned Ist Civil Judge/Judicial Magistrate Kotri. He referred to a cases of (1995 PCr.LJ 1606), Ghulam Nabi and others v. The State) (1997 PCr.LJ 942), Hussain Bux Alias Husno v. The State, 1999 PCr.LJ 948 Muhammad Iqbal v. The State and 1997 MLD 2925 Muhammad Sarwar and another v., State respectively. On the other hand learned counsel for the complainant states that there is a direct evidence against appellant Rajib Ali and Acquittal Appeal No.18/07 is pending for co-accused who have been acquitted, so also a Criminal Revision No.2107 for enhancement of sentence respectively. As such appellant Rajib is not entitled for concession of suspension of sentence and application is liable to be dismissed. Mr. Mashooque Ali learned Assistant Advocate-General supported the arguments of the learned counsel for the complainant and relied upon a case (2007 SCMR 184 Babar Ali v. Bashir Ahmed and another) and (1997 SCMR 1521 Muhammad Nawaz v. Mohammad Nawaz alias Naji and 4 others) respectively.

4. Heard learned counsel for the appellant, as well as to the learned counsel for the complainant, so also to the learned Assistant Advocate-General respectively and with their assistance perused the material available on record. In the present matter, F.I.R. was recorded by one Malang, by nominating number of accused alleging therein that Rajib, Juman and Qabool fired straight shots upon them with intention to kill them. Fire shots hit Qasim on his head and Pandhi on his arm. Due to fire-arm injury Qasim fell down and saw that Qasim had died. He further states that during this quarrel, accused Jummo, Mumtaz, Zaman and Qamar also received injuries. His evidence was recorded on 27-4-2000, wherein he deposed that "accused Jumman, Qabool and Rajib started firing upon them directly with intention to kill them which hit the head of Qasim. Accused also fired which hit P.W. Pandhi on his arm". Whereas, P.W. Ghulam Rasool deposed that "accused Rajib started firing on deceased Mohammad Qasim", which is conflicting to the version of complainant. Whereas on the same evidence of complainant, the trial Court had acquitted co-accused namely Mohammad Jumman, Qabool, Qamar, Imam Ali and Sain Bux by giving benefit of doubt though complainant has alleged that appellant Rajib and co-accused Juman and Qabool also started firing upon them directly with intention to kill them which hit on the head of Qasim, which is major and material contradiction and on the basis of such evidence, present appellant has been convicted, whereas above named co-accused having same and general role have been acquitted by the impugned judgment by the trial Court. Not only this but accused have been acquitted in a case of 13-D Arms Ordinance by the learned Ist Civil Judge/Judicial Magistrate on 19-5-2007. So far law referred by the learned counsel for the appellant Rajib Ali is concerned can be relied upon to some extent, whereas law referred by the learned Assistance Advocate-General is not similar and identical. Even otherwise, under the aforesaid circumstances, when co-accused having similar role have been acquitted by the impugned judgment, the present appellant at least can be considered for grant of bail and suspension of sentence during pendency of appeal, reliance is also placed on a case of (PLD 1995 Karachi 209) Shah Hussain v. The State) (1999 SCMR 2589) Abdul Hameed v. Mohammad Abdullah and others) respectively. Even otherwise, tentative assessment is to be made and no deeper appreciation is required at this stage.

5. Looking to the aforesaid circumstances and legal position sentence awarded to the appellant Rajib Ali is suspended and he is admitted to bail subject to furnishing solvent surety in the sum of Rs.200,000 (Rupees Two lacs) and P.R. bond in the like amount to the satisfaction of the Additional Registrar of this Court. However, the aforesaid observations are tentative in nature and it will not influence upon merits of the appeal. These are the reasons of my short order, dated 30-5-2008 by which M.A. No. 1008 of 2008 moved under section 426, Cr.P.C. was allowed. A.M.R./M-142/K Sentence suspended.