2007 PLP 2065 (YLR)

TARIQ SHAMIM, J.

Muzammil Hussain petitioner/appellant seeks suspension of his sentence awarded by the learned Additional Sessions Judge, Sargodha vide the impugned judgment dated 18-12-2006 in case F.I.R. No.61 dated 23-4-2005 for offences under sections 324, 337, 148, 149, P.P.C. registered at Police Station Factory Area, District Sargodha whereby the petitioner was convicted under section 324, P.P.C. and was sentenced to 5 years' R.I. with a fine of Rs.10,000 or in default thereof 2 months' S.I.; under section 337-A(iii), P.P.C. and was sentenced to 7 years' R.I. with Arsh i.e. 10% of Diyat amount and under section 337-F(v), P.P.C. and was sentenced to 5 years' R.I. with Daman of Rs.10,000 or in default to further suffer 2 months S.I.

2. The learned counsel for the petitioner contended that a glance at the judgment of the learned Additional Sessions. Judge para.11 whereof reveals that the recovery effected from the appellant/ petitioner is a Sota while he has- been sentenced for having caused a hatchet below with the wrong side on the head of Muhammad Rafique injured P.W. According to the learned counsel this was a glaring error on the face of the record, hence it was a legal error and in view thereof suspension of sentence of the petitioner was fully justified. He has placed reliance on the case of Bashir Ahmad v. Zulfiqar and another (PLD 1992 SC 463). Further maintained that in view of the observation made in the case of Balasundara Pavalar v. The State (AIR 1951 Madras 7) even if the earlier petiti6n for suspension of the sentence of a convict had been dismissed he could file a fresh application for the same relief pending decision of his appeal and that the appellate Court could reconsider such an application at least for reasons other than those which had already been put forward and rejected.

3. I have heard the learned counsel and gone through the judgment of the learned trial Court.

4. The petitioner's earlier application for suspension of sentenced was dismissed by this Court vide order dated 26-1-2007. Para 5 of the order is reproduced hereunder:- "After a careful analysis of the judgment of the learned lower Court and the authorities referred to by Mr. A.K. Dogar, Advocate, and the learned Deputy Prosecutor General I am inclined to hold that arguments advanced by the learned counsel for the petitioners/ appellants call for a deeper scrutiny of the evidence. It is well settled that the discretion has to be exercised in such matters judiciously by considering the relevant facts without entering into or commenting upon the merits of the case. This Court cannot enter into a reappraisal of evidence at this stage which exercise can be undertaken at the time of hearing of the main appeal. Reliance is placed on the dictum laid down by the Honourable Supreme Court of Pakistan in the following cases: Bashir Ahmad v. Zulfiqar (PLD 1992 SC 463), Muhammad Ashraf v. The State (1971 SCMR 183), Noor Abdullah and another v. The State (1981 SCMR 859), Jamshed Azam v. The State (1990 SCMR 1393) and Peer Mukaram-ul-Haq v. National Accountability Bureau (NAB) and others (2006 SCMR 1225)."

5. The argument of the learned' counsel that Sota had been recovered from the petitioner while he had been sentenced for having .caused a hatchet blow with the wrong side on the head of Muhammad Rafique P.W. and therefore, glaring error has been committed by the learned trial Court can be validly looked into at the time of deciding the appeal. Prima facie the injury attributed to the petitioner on the head of Muhammad Rafique P.W. stands corroborated by the medico-legal report Exh.PA which reveals that the injury was caused by a blunt weapon. As to what is the effect of recovery of Sota from the petitioner in the above scenario calls for deeper scrutiny of evidence which is not permissible at this stage. The judgment referred to by the concerned counsel in the case of Bashir Ahmad v. Zulfiqar and another (PLD 1992 SC 463) proceeds on distinguishable facts. Further, the learned counsel has failed to notice that in the said judgment the Honourable Supreme Court has also held that unless strong grounds are made to appear that the conviction is not liable to be sustained, bail under section 426, Cr.P.C. will not be granted. I am afraid, no such ground has been urged by the learned counsel based on which an exception could be taken to the conviction recorded by the learned trial Court.

6. For what has been stated above I am not inclined to accept this petition. Consequently the petition stands dismissed. H.B.T./M-301/L????????????????????????????????????????????????????????????????????????????????? Petition dismissed.