2015 PLP 580 (YLR)

Criminal Miscellaneous No.553-M of 2014 Seeks placement of certain documents to support the instant petition. Allowed subject to all just and legal exceptions. Criminal Miscellaneous No.416-M/2014. The petitioner, Zafar Mehmood was handed down the death sentence vide judgment dated 13-3-2014 by the learned Additional Sessions Judge, Rawalpindi on culmination of his trial in case-F.I.R. No.767, dated 15-11-2011, under section 302/34, P.P.C., registered at Police Station Saddar Berooni, Rawalpindi. His co-accused, Muhammad Aamir was awarded life imprisonment by the learned trial court through the same judgment.

2. Learned counsel for the petitioner as well as learned counsel for the complainant submit in unison that petition-in-hand may be allowed and petitioner, Zafar Mehmood may be set at liberty on bail by way of suspension of his sentence. Learned Assistant District Public Prosecutor, however, opposes this petition, though in a lukewarm manner.

3. After hearing learned counsel for the parties and perusing the record, it is observed that learned trial court appears to have stretched the matter too far, so as to dishing out the capital sentence to the petitioner by overlooking the fact that Mst.Mohallan Bibi, the complainant, who appeared as P.W.6, disowned the contents of the complaint (Exh.PC) with the contention that she knew nothing about the text thereof. The other eye-witness of this case, Muhammad Nadeem (P.W.5), who happened to be the real son of Mst.Mohallan Bibi (complainant) did the worse, as he stated in his testimony that he had not seen any of the accused at the spot with his own eyes. The learned trial court touched these facts in paragraph 9 of the impugned judgment before recording a verdict of guilt against the petitioner-convict, but left it in the middle without finding a rational- answer to the said riddle. The observations recorded by the learned trial court as to the guilt of the petitioner shall be open to serious reconsideration, when titled appeal is taken up for final adjudication. Surprisingly, it does not ooze from the impugned judgment that the said eye-witnesses, who disowned the prosecution case in mentioned terms, were declared hostile or prosecution ever asked for an opportunity to cross-examine them. Muhammad Nadeem Khan (P.W.5) has tendered his sworn affidavit, wherein he has adopted an overlapping version, as he did while rendering testimony as a prosecution witness and maintained that Zafar Mehmood (petitioner) was innocent and he had nothing to do with the murder of his sister Mst.Maryam Ayub. There is no other eye-witness of the occurrence, than the ones noted hereinabove. By relying on the judgments, Hafiz Tanveer v. The State and another (PLD 2010 Lahore 156), Abdul Rehman v. The State and another (2008 SCMR 1381) and Raja Shamshad Hussain v. Gulraiz Akhtar and others (PLD 2007 SC 564), the learned counsel for the petitioner and that of the complainant have jointly submitted that a capital sentence may be suspended in appropriate cases and there was no absolute rule that it could not be suspended under any circumstance. Learned Assistant District Public Prosecutor, too, seems to be in agreement with this particular limb of the argument of the learned counsel. The paragraph wherein learned trial court has inferred a conclusion qua guilt of the petitioner does not look much impressive at this stage and for this reason, we find it a fit case, wherein sentence of the petitioner should be suspended.

4. For the discussion supra, we allow this application, suspend the sentence of the petitioner accordingly and he shall be released on bail subject to furnishing bail bonds in the sum of Rs.5,00,000 (five lacs) with two sureties each in the like amount to the satisfaction of the learned trial court. He shall appear on each and every date of hearing of the instant appeal. ARK/Z-29/L Application allowed.