2019 PLP 42 (YLRN)

RAJA SAJJAD AHMAD KHAN, J.

Since both the applications arise out from the same judgment of the trial Court, therefore, these are being consolidated and will be disposed of through this common order.

2. Through these applications, the convict-applicants seek suspension of sentences awarded to them by Additional District Court of Criminal Jurisdiction Kotli vide its impugned judgment dated 29.09.2018.

3. The facts precisely stated are that a case in offences under Sections 302, 324, 337, 148, 149, A.P.C. vide FIR bearing No.171/ 2010 was registered against the convict-applicants and others at Police Station, Kotli on 09.12.2010. During investigation after receiving the medical result sections 337/A-2,337/F-1, A.P.C. were added. After completion of investigation, the challan was submitted before Additional District Court of Criminal Jurisdiction Kotli. The trial Court after conclusion of the trial, vide impugned judgment dated 29.09.2018 convicted the applicants and awarded sentence of death to Mehmood son of Mohammad Rashid convict applicant and awarded the sentence in offence under section 302 (b), A.P.C. and awarded the sentence of life imprisonment to Mohammad Naseem son of Mohammad Aslam convict-applicant No.2 in offences under Section 302(b), A.P.C., along with compensation Rs.10,00,000/-each under section 544-A, Cr.P.C. while Mohammad Ilyas convict-applicants was awarded two years simple imprisonment and sentence of Arsh Rs.1,02797/- under section 337/A-2, A.P.C. along with compensation Rs. 20,000/- under section 544-A, Cr.P.C. The convict-applicants Mohammad Naseem and Mohammad Ilyas were also given benefit of section 382-B, Cr.P.C. The aforesaid judgment has been challenged before this Court through two separate appeals, which are awaiting disposal.

4. Ch. Mehboob Elahi and Zaheer Babar Chugtai, the learned Counsel for the convict-applicants submitted that an appeal has been filed before this Court against the impugned judgment and there are bright chances for reversal of judgment dated 29.09.2018; therefore, the sentence may be suspended. The learned Counsel further argued that the convict-applicants are neither hardened, desperate, dangerous criminal nor previous convict; therefore, by accepting both the applications, the sentences may be suspended till disposal of appeal and the convict-applicants may be released on bail. In support of his arguments, the learned counsel placed reliance on following case law:- 2004 SCR 117, 2012 SCMR 68, 2007 SCR 524, 2016 SCMR 1283, 2018 YLR 507, 2012 PCr.LJ 789, 2013 PCr.LJ 1791 and 2017 SCMR 2038.

5. Conversely, Ch.Yasir Hussain and Sardar Mazhar Iqbal, the learned Assistant Advocate General vigorously contended that the convict-applicants along with other convict committed heinous offence; therefore, they are not entitled to be released on bail. He submitted that application is premature. Section 302, A.P.C. is fully applicable in the instant case and there are bright chances of enhancement of sentence of convict-applicants. The learned counsel and State representative prayed for dismissal of the suspension application.

6. We have given my due consideration to the arguments addressed at Bar and gone through the record.

7. We are cognizant of the fact that there must be some strong and cogent reasons for ascertaining that the conviction will not sustain. It, no doubt, is the entire discretion of the Court to suspend the sentence, but the discretion has to be exercised judiciously by considering the relevant facts and circumstances of the case without entering into or commenting upon the merits of the case.

8. In the instant case, allegation against the convict-applicants is that due to dispute over passage. On 09.10.2012 accused Mehmood brought Cement to his home after loading in a Jeep, by removing Jhal and passed the Jeep. After some time at about 12.30 p.m. the accused armed with stick came at the disputed place. The accused Mehmood asked that they have been closed their way, the complainant replied you closed our way therefore, they closed their way, firstly you may open our way then when will open your way, upon which the accused with common intention launched an attack. Accused Ilyas with intention to kill, caused injury at the head of complainant while accused Mehmood son of Rashid with intention to kill Mst. Jamshaid Begum, inflicted injuries to her at belly and other parts of body with stick, fist and kick while accused Mohammad Naseem and Shameem sons of Mohammad Aslam gave sticks, kicks and fists at the head, neck and other parts of the body of Mohammad Azam whereas accused Mehboob caused injuries with sticks to father Mohammad Zaman at his shoulder, chest and other parts of the body.

9. The trial Court observed that prosecution has proved its case against Mehmood, Naseem and Ilyas. The allegation against Mehmood for killing Jamshaid Begurn is proved, and he was convict and awarded death sentence under section 302(b), A.P.C, therefore, he is not entitled to be released on bail and his application stands dismissed

10. So far as the case of Mohammad Naseem and Mohammad llyas convict-applicants is concerned. The allegation against Mohammad Naseem and Shameem was the same that both the accused inflicted sticks, kicks and fists at the head, neck and others parts of the body of deceased Mohammad Azam and weapon of offence sticks P1 and P2 were recovered at their instance while the prosecution witnesses also supported this fact, but the learned District Court of Criminal Jurisdiction, acquitted Shameem accused, however, convicted and awarded life imprisonment under section 302(b), A.P.C. to Mohammad Naseem on the same evidence. In this regard the learned trial Court in last para of page 25 of its judgment observed as under:- From perusal of the above mentioned para it clearly reveals that three prosecution witnesses did not support the allegation levelled against Mohammad Naseem and the trial Court has convicted Mohammad Naseem on the statement of Mohammad Jameel, while allegation against Mohammad Ilyas convict for causing injuries to Khalid (complainant), however, he was awarded two years simple imprisonment under section 337/A-2, A.P.C. Keeping in view the prosecution case, as a whole, We are of the view that the evidence on the basis of which the applicants have been convicted and sentenced while acquitted Shameem accused, needs details reappraisal at the time of hearing of the main appeals, quantum of sentence and time likely to be consumed for disposal of appeals. Resultantly the applications are allowed to the extent of Mohammad Naseem and Mohammad Ilyas applicants and the sentences awarded to them are suspended. They are admitted to bail. Mohammad Naseem convict-applicant shall be released on bail subject to his furnishing bail bonds in the sum of Rs.15,00,000/-(fifteen Lac) with two sureties and personal bond and Mohammad Ilyas shall also be released on furnishing bail bonds in sum of Rs.10,00,000/-with two sureties in the like amount to the satisfaction of any Magistrate Ist Class, Kotli. They are directed to appear before this Court on each and every date of hearing till the final disposal of the main appeals. JK/4/Sh.C.(AJ&K) Sentence suspended.