2004 PLP 97 (YLR)

Date of hearing: 11th March, 2003. Petitioner seeks suspension of sentence. He stands convicted vide judgment dated 28‑3‑2002 in the case registered vide F.I.R. No.412 of 2000, dated 12‑9‑2000, under section 302, P.P.C., Police Station Depalpur and sentenced to life imprisonment.

2. The prosecution story is that on 11‑9‑2000, Muhammad Salim deceased asked the appellant Muhammad Salim alias Baggi that he should stop teasing girls which led to exchange of hot ,words. Appellant allegedly picked up an iron weight weighing 2 Kilogram from his shop and hit nephew of the complainant namely; Saleem deceased which proved fatal and he died at the spot.

3. Learned counsel for the petitioner seeks suspension on the ground that the motive part of prosecution story has been disbelieved, that the learned trial Court has held that there was no premeditation, that the place of occurrence was the shop of the appellant which indicates that the deceased had come to the latter's shop to attack him that the appellant did not repeat the blow, that such a harsh sentence was nor warranted, that petitioner has already served more than three years of his sentence, that his shop is closed ever since, his conviction which is entire blow to the family. In support of the submission made learned counsel for the petitioner relies upon Allah Yar and another v. The State 1994 PCr.LJ 211 and Faqir Muhammad v. Akbar and others 1979 SCMR 270.

4. Learned Additional Advocate General having gone through the judgment submitted that the learned trial Court did not believe the motive part and has held that it was the deceased which came to the shop of the appellant. In these circumstances, the plea raised by the appellant would not be without substance but it may amount to deeper appreciation of evidence. He, however, did not seriously oppose the prayer for suspension or sentence.

5. Heard.

6. The learned trial Court in para. 14 of the judgment has disbelieved the motive part of the prosecution story. In para.14 the Court held as under:‑‑ "The facts established on record in this case are that the deceased himself had gone to the shop of the accused where hot words were exchanged between the deceased and the accused It is evident from the statements of the witnesses that the deceased had some grievance against the accused, he came to the shop of the accused; where hot words were exchanged, whereafter, the accused picked up an iron weight and hurled at the deceased which hit him resulting in his death. Blow was not repeated by the accused, showing that there was no premeditation on the part or accused. Apparently it is a case or sudden fight. "

7. In the face of the afore‑referred findings, the evidence would require reappraisal and the existence of mens tea would be a moot point. Resultantly, this petition is allowed and subject to petitioner's furnishing bond in the sum or Rs.50,000 (Rupees fifty thousand) with two sureties in the like amount to the satisfaction of the trial Court. Petitioner's sentence shall remain suspended till the final disposal of the appeal. H.B.T./M‑2232/L Petition allowed.