2016 PLP 1283 (SCMR)

MANZOOR AHMAD MALIK, J.

Petitioner Nasir Ali along with his co-accused was tried by the learned Additional Sessions Judge, Ferozewala in case FIR No. 513/2012 dated 5.11.2012, offence under sections 302, 337A(i), 337F(i), 148, 149, P.P.C., registered at Police Station Narang. The learned trial Court, vide judgment dated 30.11.2015, convicted/sentenced the petitioner as under: U/s 302(b), P.P.C. Sentenced to imprisonment for life, with direction to pay compensation of Rs.200,000/- to the LRs of the deceased, in default whereof to undergo SI for six months. U/s 337A(i), P.P.C. To pay Daman of Rs.10,000/- and to undergo RI for six months. U/s 337F(i), P.P.C. To pay Daman of Rs.10,000/- and to undergo RI for six months. Benefit of section 382-B, Code of Criminal Procedure was extended to him.

2. The petitioner filed criminal appeal against his conviction/sentence before the learned High Court, which is pending. During pendency of his appeal before the learned High Court, the petitioner filed Crl. Misc. No. 01 of 2015 for suspension of sentence, which was dismissed vide the impugned order dated 17.02.2016. Hence, this petition for leave to appeal.

3. After hearing the learned counsel for the petitioner, learned counsel for respondent No.2/complainant and learned Law Officer and perusing the available record with their assistance, it has been observed by us that: (i) In this case, the complainant has alleged in the FIR that petitioner along with his co-accused armed with firearm weapons attacked the complainant party. The fire shot by co-accused of the petitioner namely Imtiaz Ahmad @ Haji Gondal with his pistol, hit Iftikhar Ahmad (brother of complainant) on right side of his chest. The fire shot by co-accused Iftikhar @ Kharou with his pistol hit on the right cheek of Iftikhar Ahmad (deceased). The precise allegation against the petitioner, as per FIR was that he gave butt blows with his Kalashnikov on the head of Sajjad Ahmad (injured PW). (ii) As per the allegations contained in the FIR, no injury on the person of Iftikhar Ahmad (deceased) has been attributed to the present petitioner and the only allegation against him is of giving butt blows of Kalashnikov on the head of Sajjad Ahmad (injured PW). However, it transpires from Paras-8 and 9 of the judgment of the learned trial Court that while recording their statements before the learned trial Court, the complainant and witnesses of the ocular account stated that petitioner Nasir Ali fired shot with his pistol which hit Iftikhar Ali (deceased) on his right arm and went into his chest. It has been noted by us that as per contents of the FIR, present petitioner was not armed with a pistol but with a Kalashnikov. (iii) The learned counsel for the petitioner has placed on record postmortem report of Iftikhar Ahmed (deceased). The doctor has observed five injury wounds on the person of the deceased. Injury No.1 is a skin deep lacerated wound, which according to opinion of the doctor, was caused by blunt weapon, whereas injuries Nos. 2, 3, 4 and 5 were caused by firearm weapon. The pictorial diagram of the deceased indicates that injury No. 2 is entry wound, injury No.3 is exit wound, injury No. 4 is re-entry wound and injury No. 5 is exit wound. In such a situation, it is to be seen by the learned Appellate Court, after reappraisal of evidence, whether the learned trial Court was justified in convicting the petitioner under section 302(b), P.P.C. (iv) Keeping in view the aforesaid circumstances coupled with the fact that criminal appeal filed by the petitioner before the learned High Court against his conviction/sentence is pending and the final adjudication of his appeal is still not in sight, we are of the view that petitioner has made out a case for suspension of his sentence.

4. For the foregoing reasons, we convert this petition into appeal, allow it and suspend the sentence of the petitioner subject to his furnishing bail bond in the sum of Rs. 100,000/- (Rupees one hundred thousands only), with one surety, in the like amount, to the satisfaction of the learned trial Court. MWA/N-5/SC Sentence suspended.