1996 (PLP)

5. Learned counsel for the applicant-convict has sought suspension of the sentence on the following grounds:-- (i)???????? that the learned trial Court has convicted the applicant-convict on a mistaken belief that it was applicant-convict who fired at Mahla deceased which proved fatal. Reference was made to page 14 of the judgment wherein statement of P.W.II Lal was reproduced to the following effect:-- Thereafter Nawaz son of Ghulam Haider (absconder accused) which hit Mahla deceased on left side of his head who fell down. (ii)??????? that the learned trial Court has made inconsistent observations qua recovery of gun P.6. On the one hand, while reproducing statement of P.W.8 Umar Daraz, it observed that Nawez son of Ghulam Haider, applicant-convict led to recovery of gun P.6 whereas in para. No. 12 it was observed that it was Nawaz son of Ghulam Muhammad who led to recovery of gun P.6; (iii)?????? that Rana Muhammad Nawaz, S.P. Range Crimes, during investigation opined that the applicant-convict was innocent. "

6. Learned counsel for the State on the other hand, has vehemently opposed the prayer for suspension of sentence by submitting that applicant ?convict was specifically named in the F.I.R. and that he came armed with deadly weapons, formed an unlawful assembly and therefore, he was vicariously liable for the- murder of Zulfiqar alias Mahla. On a Court query, learned counsel admitted that the applicant-convict did not lead to recovery of any weapon of offence; that gun P.6 was recovered from co-accused Muhammad Nawaz son of Ghulam Muhammad who absconded during trial. Learned counsel further admitted that the applicant-convict was not connected with the motive part of the prosecution story as is evident from a bare reading of F.I.R. Exh.P.J./1 which has been reproduced in para. No. 2 of the judgment.

7. I have heard learned counsel for the parties and have also gone through the record.

8. A Court of appeal while deciding a petition under section 426, Cr.P.C. does not embark upon a deeper appreciation of evidence. But it does attend to the question whether the appraisal of evidence carried out by the learned trial Court is in consonance with law or not. However, while doing so it has ordinarily to look to the judgment itself. If it comes to the conclusion that the appraisal of evidence and the conviction recorded needed serious examination, it may suspend the sentence.

9. In Abdullah Khan v. Karam Dad Khan and another 1968 SCMR 1064 the order of the High Court was up held by the Honourable Supreme Court wherein the sentence of a convict had been suspended who was attributed Lalkara only. In Sattu Khan and others v. The State 1988 SCMR 241 the Honourable Supreme Court suspended the sentence of the convict wherein the plea of right of self-defence raised by the accused had been rejected by the High Court but the matter required serious consideration. In Mst. Latif Bibi v. Abdul Ghafoor and another 1994 SCMR 1727 the Honourable Supreme Court did not interfere in the order of the High Court in which the sentence was suspended of a convict who was not attributed any injury to the deceased.

10. While referring to the statement of Lal (P. W.11) the learned trial Court appeared to be under a misconception that it was applicant-convict who was attributed the fatal shot. In paragraph 15 at page 14 statement of (P W.11) was reproduced to the following effect:-- "Thereafter Nawaz son of Ghulam Haider (absconder accused) which hit Mahla deceased on left side of his head who fell down." A bare reading of para. 2 of the judgment would show that the afore-referred narration (qua the role ascribed to Nawaz son of Ghulam Haider, applicant? convict) is inconsistent with prosecution case in terms of which the fatal rather the only shot is attributed to Nawaz son of Ghulam Muhammad who absconded during trial. Admittedly, one person of the applicant-convict's side, namely, Muzaffar Ali, was killed in the same occurrence. A case was registered vide F.I.R. No.579/91 (Exh.D.B.) on the complaint of Allah Bakhsh co-convict. Five persons of the complainant party including Muhammad Amin injured (not produced) were tried and convicted under section 302, P.P.C. and sentenced to life imprisonment vide judgment, dated 2-9-1995. Taking note of the counter? version and the fact that the prosecution withheld the most important witness, namely, Muhammad Amin, injured, the learned trial Court at page 32 of the judgment, observed that:-- "It is to be mentioned here that both the sides have not come forward with a true picture about the motive for the occurrence. As there is cross-version therefore, both the sides tried their best to conceal what happened at the time of the occurrence over which this fight between the parties started and life of one person from each side was lost. " Prima facie, the motive is attributed to Muhammad Nawaz son of Ghulam Muhammad and his brothers who used to get water illegally to irrigate their lands by making cuts in Rajbah. The concession of the learned State Counsel on this score, may not be against the record. The applicant-convict was declared innocent during investigation and remained on bail during trial. The complainant side received only two injuries i.e. one by Zulfiqar alias Mahla deceased which is attributed to Nawaz son of Ghulam Muhammad and the other received by Muhammad Amin (not produced) which is attributed to Sarfraz accused. It is apparent from the judgment itself that no overt act is attributed to "Applicant-convict in the commission of murder; prima facie, he is not directly connected with the motive part of the prosecution story; nothing incriminating was recovered from him; the F.I.R lodged on the statement of Allah Bakhsh co ?convict for the murder of Muzaffar Ali qua the same occurrence is prior in time and the trial culminated in the conviction of five persons of the complainant side. In these circumstances, the legality of the applicant's conviction under sections 302/148/149 and 337-F(iii), P.P.C. requires serious considerations.

11. For what has been discussed above and respectfully following the precedent case-law, the sentence of the applicant-convict Muhammad Nawaz son of Ghulam Haider, is suspended and he is released on bail provided he furnishes C bail bonds in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of learned trial Court. N.H.Q./M-36/L?????????????????????????????????????????????????????????????????????????????????? Sentence suspended.