1994 PLP 453 (SCMR)

‑‑‑‑S. 302/34‑‑‑Criminal Procedure Code (V of 1898), S.426‑‑‑Constitution of Pakistan (1973), Art. 185(3)‑‑‑Suspension of sentence‑‑‑Medical evidence had contradicted the allegations made against the accused‑‑‑All other co‑accused had already been acquitted‑‑‑Sentence of accused was suspended and they were released on bail by Supreme Court accordingly. Asif Saeed Khan Khosa, Advocate Supreme Court and Sh. Salahuddin, Advocate‑on‑Record for Petitioners. M. Nabi Ahmed Cheema, Advocate Supreme Court for the State. Date of hearing: 22nd November, 1993. SALEEM AKHTAR, J.‑The petitioners seek leave to appeal against the order of the learned Judge in Chambers of the High Court whereby their application under section 426, Cr.P.C. for supension of the sentence passed by the learned Additional Sessions Judge has been dismissed.

2. The petitioners alongwith other six co‑accused were alleged to have committed murder of Arshoo. According to the complainant (P.W.6) his father Arshoo deceased and other witnesses were present in the Bazaar of Village Laundi Saidan when suddenly the petitioners, Sahiban, Balachh, Mehr Bakhsh, Sardar, Jalam and Sher Ali emerged there raising Lalkara against the deceased. Sardar was armed with .12 bore gun and all other accused were armed with a rifle each. It was alleged that Sher Ali accused fired at the deceased, but the same proved ineffective. Faiz Ali petitioner No.2 then fired at the deceased which hit right side of his head. Muhammad Afzal petitioner No.l is alleged to have fired at the deceased which hit him on front chest on the left ribs. When the deceased fell down, Sahiban and Balachh fired at the fallen deceased which hit him on his back. The other accused fired in the air to scare the people and then all of them fled away from there. The learned trial Court acquitted all the accused except the petitioners and awarded life imprisonment and fine. The petitioners' application for suspension of sentence was dismissed by the impugned order.

3. The learned counsel for the petitioners contended that in the F.I.R. specific role has been assigned to the petitioners for causing injury on the forehead and chest, but from the medical report it is clear that these injuries were not found on the body of the deceased. In this background the learned counsel contended that the medical evidence contradicts the allegations' made against the petitioners. After hearing the learned counsel notice was issued to the State. The learned counsel appearing for the State frankly stated that the position of injuries as alleged by the learned counsel for the petitioner is supported by the record, particular the medical report. In view of this contradiction and as all other accused have been acquitted, we convert this petition into appeal and allow it. Sentence of the petitioners is suspended and they will be released on furnishing two sureties each in the sum of Rs. 25,000 each to the satisfaction of Assistant Commissioner, Jampur, District Rajanpur. N.H.Q/M‑1874/S Sentence suspended.