2013 PLP 1403 (SCMR)

TASSADUQ HUSSAIN JILLANI, J.

Seeks leave to appeal against the order dated 11-3-2013 vide which the learned Lahore High Court allowed Criminal Miscellaneous No.100 of 2012 and suspended the sentences awarded to the respondents.

2. Brief facts giving rise to the instant petition briefly stated are that the respondents along with 5 others were proceeded against for the murder of Zahoor Ahmed in terms of the case registered vide F.I.R. No.282 dated 27-5-2009 under sections 302/334/337-A(iii)/148/149/109, P.P.C. at Police Station Shedard. The learned trial Court vide its judgment dated 15-7-2011 while acquitting two co-accused, convicted the respondents and three others under section 302(b), P.P.C.. Three accused were sentenced to death while the respondents were sentenced to life imprisonment as also to pay a sum of Rs. 300,000 each to the legal heirs of the deceased.

3. The prosecution story as narrated by the complainant is that on the fateful day i.e. 27-5-2009 he along with .Zahoor Ahmed and Jan Muhammad were going on a motorbike and near Moza Allah Ditta Bhela they were waylaid by the accused and the precise role attributed to the accused was as follows:-- "When we reached in the area of Mauza Allah Ditta Bhela, Kareem Bakhsh armed with pistol, Fazal Hussain armed with pistol, Nazar Hussain armed with hatchet, Allah Bakhsh armed with hatchet, Liaquat armed with hatchet, Shah Nawaz armed with hatchet, Muhammad Shafi armed with Churri and an unknown person who had muffled face armed with hatchet, were hiding themselves near the Watt of Road and all of a sudden appeared before us and intercepted us. Kareem Bakhsh made a fire with his pistol which hit Zahoor Ahmed on his right rib. Fazal Hussain made a fire which hit Jan Muhammad on his right thigh. Nazar Hussain came forward and cut away right arm of Zahoor Ahmed. Allah Bakhsh inflicted hatchet blow on Zahoor Ahmed which cut his right leg. Liaquat inflicted hatchet blow to Zahoor Ahmad and cut his right arm. My brother Zahoor Ahmed fell down on the ground and succumbed to the injuries at the spot. Muhammad Shafi cut his nose with his Churri. Jan Muhammad, Majeed Ahmad and Shakoor Ahmad witnessed the occurrence."

4. The learned High Court suspended the sentence of the respondents on the ground that the injuries attributed to the respondents fall within the mischief of section 337-F(iii), P.P.C. which is punishable for three years' RI; that the injuries attributed to them are on non-vital parts of the body; that they did not repeat the hatchet blows; that the injuries attributed to the respondents are not corroborated by the medical evidence and that they have already undergone more than 4 and 1/2 years of their, substantive sentences.

5. Learned counsel for the petitioner having argued the case at some length did not press the petition to the extent of respondents Fazal Ahmed and Shah Nawaz and with regard to the remaining two i.e. Nazar Hussain and Liaquat Hussain he contended that both of them were attributed specific injuries and the role attributed to them is not only corroborated by the medical evidence but Liaquat also led to the recovery of hatchet which was blood stained.

6. Learned counsel for the respondents-accused defended the impugned judgment by submitting that the prosecution has widened the net and roped in innocent persons; that the impugned order suspending the sentences is in accord with the law laid down by this Court as the inter se contradictions between the statement of eye-witnesses and the contradictions between the ocular evidence and the medical evidence required reappraisal of evidence which has been considered fit ground to suspend the sentence.

7. Learned Additional Prosecutor-General supported the petition as according to him the learned High Court while suspending the sentence embarked upon a deeper appreciation of evidence which is not sustainable in law.

8. Having considered the submissions made by learned counsel for the parties and learned Law Officer, we find that in suspending the sentence the learned High Court discussed the prosecution evidence in a manner which is the preserve of the Appellate Court. This amounted to deeper appreciation of evidence which exercise could not have been undertaken in a petition under section 426, Cr.P.C. The observations made in para 4 of the impugned judgment are likely to prejudice the case of the prosecution in appeal and the learned Court, we may observe with respect, did not keep in view the principles laid down by this Court for the exercise of jurisdiction under section 426, Cr.P.C. In Muhammad Saleem v. State (PLD 2006 SC 483), this Court held as follows:-- "(7) There is no cavil to the proposition that appellate court in exercise of its power under section 426, Cr.P.C. may in a suitable case, suspend the sentence of a convict and grant him bail pending disposal of his appeal and notwithstanding any material difference in the principle governing for grant of bail under sections 497 and 426, Cr.P.C. the consideration for suspension of sentence and grant of bail pending trial may not be the same, therefore, the distinction must be adhered to for exercise of power under the above provisions in proper manner. The power of appellate court under section 426(1), Cr.P.C. is not limited and the court may, pending disposal of an appeal, suspend the sentence of a convict in an appropriate case in its discretion for good and sufficient reasons but this power of suspension of sentence and grant of bail is not wider than that of under section 497, Cr.P.C. and unless it is shown that conviction is based on no evidence or being based on an inadmissible evidence, is not ultimately sustainable, the grant of bail under section 426(1), Cr.P.C. with the consideration of ascertaining the question of guilt or innocence on merits through appraisal of evidence is not justified as the bail either under section 497 or 426(1), Cr.P.C, could be allowed only on the basis of tentative assessment of evidence. (8) The High Court in the present case, after appraisal of evidence in detail, having held that ocular account was in conflict to the medical evidence, granted bail to Ali Shehryar with the observation that the role of causing injuries to the deceased assigned to him was not supported by medical evidence as the two injures on the head of deceased, declared fatal to his life were the result of single blow attributed to Muhammad Saleem and the injury attributed to Ali Shehryar was not the result of an independent blow. The observation to the extent of more than one injury can be result of single blow may be tentative in nature but the conclusion that Ali Shehryar having not caused the fatal injury to the deceased, did not incur vicarious liability, would certainly be considered a verdict of acquittal on merit pending disposal of appeal. This court normally is reluctant to interfere in the discretion exercised by the High Court in bail matters but if the discretion is exercised in departure to the settled principles of criminal administration of justice, the reluctance to interfere would result in miscarriage of justice. The witnesses have clearly stated that Muhammad Saleem, petitioner in Crl. P. No.299 of 2005 and Rao Ali Shehryar, respondent in Cr. P. 377-L of 2005, caused one injury each to the deceased on his head and according to the medical evidence deceased sustained two independent fatal injuries on his head. The finding of the trial Court was also that the two fatal injuries sustained by the deceased on head were caused by the above named two accused and unless it could be shown from the evidence that the finding of the trial Court was in utter disregard to the factual position on the record, the mere possibility of another view of the evidence would not be a valid and sufficient ground to suspend the sentence under section 426(1), Cr.P.C. and grant bail to a life convict pending disposal of his appeal against the conviction on capital charge. There is difference between tentative assessment and deep appraisal of evidence and rule is that appellant court may on the basis of tentative assessment for reason to be recorded, suspend the sentence and grant bail to a convict but the exercise of the power of grant of bail through suspension of sentence on the basis of deep appraisal of evidence is against the principle governing the exercise of powers under section 426(1), Cr.P.C. This is settled law that appellate Court should not go deep into the evidence for the purpose of suspension of sentence by giving the reasons which may amount to express its views on the merits of the case prejudicing the case of one or the other Party in appeal. (9) In the light of foregoing reasons we are of the considered view that Rao Shehryar, respondent in C.P. No.377-L of 2005 has been granted bail under section 426(1), Cr.P.C. in improper exercise of discretion."

9. In the instant case in the F.I.R. and in the evidence led during trial, respondents Liaquat Hussain and Nazar Hussain were attributed specific role of causing injuries to the deceased. The question inter alia whether there was sufficient corroboration of the ocular account entailed deeper appreciation of evidence which exercise ought to have been left to the Appellate Court during hearing of the appeal. In absence of any legal infirmity in the impugned judgment with regard to the findings against the respondents named above, their sentences could not have been suspended.

10. For what has been discussed above, this petition is converted into appeal and partly allowed i.e. the impugned order to the extent of Liaquat Hussain and Nazar Hussain is set aside. They shall be taken into custody and sent to judicial lockup. Qua the remaining two, this petition is dismissed as petitioner's learned counsel has opted not to press the petition to their extent. Needless to observe, the observations made in this order shall not prejudice the case of either side in appeal. MWA/M-39/SC Order accordingly.