P L D 2004 Lahore 266 (PLP)

Mian Nazar Hussain Bhatti for the Complainant. Wasim Khan Bhatti for the State. This is an application for suspension of sentence of Fazal Rahim who stands convicted under section 302(b), P.P.C. and sentenced to death by the learned Sessions Judge, Vehari, vide judgment dated 31‑7‑2003.

2. The facts necessary for disposal of instant petition are that on 20‑5‑1998 after the polling when the result of election for the seat of local councillor was declared, winning party (complainant) was celebrating its victory, they were attacked by the accused party. Musthtaq Ahmad accused raised Lalkara that their festivity should be spoiled and fired pistol shot hitting Riaz Ali on his abdomen, therefore, Khalid Masood (loosing candidate) and Khalid Mahmood fired at Riaz Ali, whereafter Kamran Mushtaq fired with .222 rifle at Shamshad Ali. Second set of accused consist was of Nawaz, Rehan, Fazal Rahim petitioner, Fazal Rauf and Muhammad Siddique. They injured Shamshad Ali and Ijaz Ali P.Ws. with brickbats. Riaz Ali succumbed to his, injuries in the transit.

3. On the conclusion of trial the learned trial Court acquitted all the accused persons except the petitioner, who was convicted under section 302(b), P.P.C. and sentenced to death.

4. Learned counsel appearing on behalf of the petitioner contends that as per prosecution version petitioner was not armed with any weapon of offence. The allegation against him is that he was only brick batting alongwith his other co‑accused at the opposite‑party; that petitioner has not caused any injury whatsoever on the person of the deceased; that only role ascribed to him is that due to his brick-batting alongwith his co‑accused. Shamshad and Ijaz, P.Ws. sustained injuries which are simple in nature. Submits that no specific injury had been attributed to the petitioner and co‑accused who were attributed the same role had been acquitted by giving them benefit of doubt. Further adds that the judgment of trial Court is totally misconceived and is based on surmises and conjectures; that learned trial Court has convicted the petitioner in a mechanical manner without realizing that there was nothing on record against the petitioner whereas the deceased has received gunshot injuries on his abdomen, therefore, conviction and sentence of the petitioner is totally based on evidence which is not in existence and conviction of the petitioner by the learned Judge is absolutely without any basis; that petitioner is rotting in the death cell for the last so many months without any fault on his part as well as without any incriminating material against him; that there is no possibility that his appeal can be heard in near future. Learned counsel prays for suspension of sentence and his release on bail till the final decision of his main appeal.

5. Conversely learned counsel appearing on behalf of the State assisted by learned counsel for the complainant has opposed the suspension of sentence tooth and nail on the ground that under section 426, Cr.P.C. sentence of death cannot be suspended by this Court.

6. We have given our anxious consideration to the contentions raised by the learned counsel for the parties and also have perused the record carefully. Contention of the learned counsel for the complainant that this Court lacks jurisdiction under section 426, Cr.P.C. to suspend the death sentence and to release the convict on bail is totally misconceived. Appellate Courts have discretion to grant bail after suspending sentence pending decision of the appeal. This discretion is not fettered or restricted by reference either to conviction or to sentence passed against the appellant by the trial Court. But like all discretion vested in the Courts, the discretion under section 426, Cr.P.C. has also to be exercised judicially. Reference in this behalf may be made to a judgment of august Supreme Court reported i.e. 1978 SCMR

149. In another Supreme Court's case 1968 SCMR 1064 it was observed that section 426, Cr.P.C. does not impose any limitation on the powers of the High Court to grant bail to an accused/convict of murder and the High Court for good and sufficient reasons can exercise the power of granting bail under section 426, Cr.P.C. 1979 SCMR 270 may also be cited where the Supreme Court had refused to interfere with the order of the High Court suspending sentence of a, convict sentenced to imprisonment for life. Reliance can also be placed on another case 1971 SCMR 657 where the complainant was refused special leave to appeal by the august Supreme Court against an order of Division Bench of High Court suspending the sentence of a convict under section 426, Cr.P.C. The relevant paragraph to the following effect is as under:‑‑ "The complainant has now come up to this Court for special leave to appeal and it is contended on his behalf that under section 426, Cr.P.C. no bail can be granted. This is clearly incorrect for subsection (1) of section 426, Cr.P.C. itself states that pending an appeal by a convict person the Appellate Court may order the suspension of the sentence and also if he is in confinement, order his release on bail or on his own bond." Another judgment reported as 1979 PCr.LJ 1104 would cover the case in hand in all four corners where the sentence of death of a convict was suspended by a Division Bench of this Court and he was released on bail. In view of all these authoritative pronouncements of the superior Courts no ambiguity remains regarding powers of this Court to suspend the sentence of death of a convict under section 426, Cr.P.C. and to release him on bail till the decision of his main appeal. We have also given out anxious consideration to the contention raised by the learned counsel for the petitioner. There is no denying the fact that nether the petitioner was armed with any weapon nor he had caused any injury to the deceased. Admittedly, he was only brick-batting along with other co‑accused on the complainant party. Record also reveals that P.Ws. Shamshad and Ijaz had sustained injuries as a result of brick-batting. Learned trial Court had acquitted all the other 9 co‑accused of the petitioner and had only selected the petitioner responsible for the murder of Riaz Ali deceased. Learned trial Judge had clearly erred in law as well as on facts while convicting and awarding capital punishment to the petitioner. Cases are decided after application of judicial mind in, view of the evidence produced by the parties and the law applicable therein and not on account of fertile imagination of a Presiding Officer as in the instant case the Presiding Officer had first propounded several probabilities regarding the commission of offence, thereafter, picked one probability and on the basis of the same held the present petitioner liable, for murder deceased Riaz Ali, which is not in consonance with the well‑established principles thereof, for the safe administration of criminal justice. The six, theories of the learned trial Judge were that Riaz Ali was murdered in the manner and style expressed by the prosecution. Second, it was an individual and unilateral act of one of the accused persons, third Azhar -ul‑Islam murdered Riaz Ali; fourth, some one out of the mob had killed Riaz Ali; fifth, a bullet from Riaz Ali's own pistol had hit him accidentally and sixth astray bullet had worked. Strange enough that after discussing all the possibilities learned trial Court had discarded all the theories and thereafter had ventured to explore another venue, that Rana Muhammad Aslam, S.S.P., Vehari C.W.3 had found during investigation ail the accused persons except Fazal Rahim, Rehan Mushtaq and Muhammad Siddique were not present at the time of murder. Out of these three accused Rehan Mushtaq was armed with .222 rifle whereas two other were empty‑handed. C.W.3 Rana Muhammad Aslam further deposed that the deceased was injured by a pistol shot. C.W.1 Sajid Hussain, S.‑I. had seen a person running away with rifle from the scene of occurrence; that man cannot be other than Rehan Mushtaq. Therefore, the learned trial judge referred to the statement made by Muhammad Siddique accused under section 342, Cr.P.C. wherein he had mentioned that Azhar‑ul‑Islam accused had been seen by him standing near Riaz Ali with fire‑arm weapon. Trial Court from the perusal of evidence which also includes the statement of Muhammad Siddique‑accused, the testimony of eye‑witness C.W.1, Sajid Hussain, S.I., C.W.2. Abdul Majeed Chishti, C.W.3 Rana Muhammad Aslam, S.S.P. and other. In estimating Officers, had concluded, that it was only the petitioner, who was responsible for the death of Riaz Ali. On the basis of such evidence conviction and sentence of the petitioner cannot be maintained by any stretch of imagination. Therefore, to let remain the petitioner in death cell rotting land waiting for decision of his appeal, which is not likely to be heard in the near future, would not definitely, in any way, serve the cause of justice. In this view of the matter, a case for suspension of sentence is clearly made out. Accordingly we allow this petition and suspend the conviction and sentence awarded to the petitioner vide judgment dated 31‑7‑2003 and order to release the petitioner from Jail provided he furnishes bail bonds in the sum of Rs.200,000 (Rupees two lacs only) with two sureties in the like amount to the satisfaction of trial Court. N.H.Q./F‑216/L Sentence suspended.