2002 PLP 3703 (YLR)

Syed Sajjad Ali Shah, A.A.‑G. for State. Date of hearing: 16th January, 2001. MUHAMMAD JAVED BUTTAR, J.‑‑‑The petitioner Muhammad Mahfooz is seeking suspension of sentence awarded to him by the learned Additional Sessions Judge, Jhelum on 25‑10‑1999. He alongwith co appellants Muhammad Maqsood and Muhammad Yaqoob was tried in case F.I.R. No. 65 of 1998 dated 2‑6‑1998 registered at Police Station Chotala District Jhelum for offences under sections 302/311 and 34, P.P.C. The trial Court convicted all the appellants under section 302, P.P.C. read with section 34, P.P.C. by holding them guilty for the murder of Muhammad Saeed deceased and while sentencing Muhammad Maqsood and Muhammad Yaqoob appellant to death, sentenced the petitioner Muhammad Mahfooz to imprisonment for life. Trial Court also convicted all the accused including the petitioner under section 311 read with section 34, P.P.C. for the murder of Mst. Shamim Akhtar and convicted them to 14 years R.I. as Tazir. All the accused were also held liable to pay compensation of Rs.10,000 each to the heirs of Muhammad Saeed deceased or to suffer further imprisonment of 6 months. The benefit of section 382‑B, Cr.P.C. was also extended to the accused.

2. It is contended by the learned counsel for the petitioner that allegation against the petitioner is that he had held the P.Ws. at gun‑point and thus facilitated the commission of the murder of the deceased by the co‑accused and there is no allegation of the petitioner having caused any injury to the deceased. The gun was never recovered and therefore, the allegation was, never proved and the benefit of doubt .in the circumstances ought to have been extended to the petitioner, especially when the Investigating Officer (P.W.13) had stated before the Court that it is doubtful that the petitioner was holding a gun. It is submitted next that Muhammad Maqsood admitted before the trial Court that he had caused death to his brother's wife namely Shamim Akhtar and her paramour Muhammad Saeed on seeing them in compromising position and all these admitted and established facts make whole of the prosecution case against the petitioner as highly doubtful and there is every likelihood that the petitioner would be acquitted at the time when the appeal will come up for hearing and there is no likelihood of the hearing of the appeal in near further. In the end it is submitted that the petitioner was arrested on 14‑6‑1998 and is behind the bars for the last more than 30 months and is entitled to the concession of bail.

3. The contentions have been opposed by the learned counsel for the State and it is submitted that the arguments advanced by the learned counsel for the petitioner require deeper appreciation of evidence which is not warranted at this stage.

4. We do not agree with the contentions of the learned counsel for The State that the arguments advanced by the learned counsel for the petitioner require deeper appreciation of evidence for the simple reason that the arguments of the learned counsel are based on the facts established on the face of the record.

5. The only allegation against the petitioner is that he held out a gun at the P. Ws. at the time of the commission of the murder and thus facilitated the commission of the murders. The Investigating Officer stated before the Court that according to his investigation the petitioner was not having the gun but he has been disbelieved by the teamed Trial Court with the reasoning that "if it is believed that Mahfooz was not having a gun at the time of occurrence which he had pointed out to the P.Ws., the P.Ws. naturally should have intervened and in that case they must have got injuries on their persons also but there is nothing like that in the instant case." The gun which was allegedly held by the petitioner was never recovered and we are of the view that the reasoning advanced by the Trial Court for disbelieving the Investigating Officer is not very convicting. The P.Ws. may not have intervened out of fear of the co‑accused Muhammad Maqsood who slaughtered the deceased with `Chhurri'. The petitioner is behind the bars for the last more than 30 months and hearing of the appeal is not in sight. We are of the tentative view that the petitioner's participation in the occurrence is doubtful. The application is, therefore, allowed and the sentence awarded to the petitioner is suspended and the petitioner is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 with two sureties; each in the like amount to the satisfaction of the Trial Court. Needless to say that observations made by this Court will have no bearing on the merits of the appeal as the assessments made by this Court at this stage are merely tentative in nature. H.B.T/M‑1499/L Application allowed.