2010 PLP 608 (SCMR)

MAHMOOD AKHTAR SHAHID SIDDIQUI, J.

Sana Ullah Khan petitioner seeks suspension of the sentence of 20 years' R.I. as Ta'zir which was awarded to him by the trial Court vide judgment dated 30-7-2007.

2. The petitioner moved the High Court seeking suspension of the sentence but his application was dismissed. The reasoning which prevailed with the High Court finds mention in paragraph 6 of the impugned order which, for ease of reference, is reproduced as under: "(6) Dr. Abdul Sattar, who had conducted postmortem examination on the deceased is also present before the Court, who was called by this Court to explain as to whether all injuries caused to the deceased by the petitioner which he had not explained in his post-mortem report, has stated before this Court that real cause of the death of the deceased was due to injuries caused to him by the petitioner, as due to intensity of pain of the injuries the deceased also complained chest pain before his death which ultimately resulted into his death."

3. Learned counsel for the petitioner has rightly pointed out that the procedure adopted by the High Court was not legally permissible. Dr. Abdul Sattar had duly appeared as P.W. at the trial. He had testified under oath and subject to cross-examination. In categorical terms he deposed as under:

"Opinion The injuries borne by the body were not sufficient to kill the person. Hence, the cause of death would be determined after the receipt of report from the office of Chemical Examiner. The probable time between injury and death was not possible to determine. The time between death and postmortem was 18-19 hours. According to the Chemical Report no poison was detected from viscera."

4. The above testimony does not prove either that the injuries were caused by the petitioner or that these injuries caused the death of Sadiq Masih. Even other parts of the evidence on record and the contents of the F.I.R. show that the deceased, Sadiq Masih did not die of the injuries caused- by the petitioner, Sanaullah Khan, The complainant, Shamoon Masih had stated that his father, Sadiq Masih, deceased was being taken to Civil Hospital, Tandlianwala when he fell while outside the gate of the hospital and died. This statement in the F.I.R. coupled with the evidence given by Dr. Abdul Sattar P.W. suggests that the petitioner may not be liable for punishment under section 316, P.P.C.

5. Learned Deputy Prosecutor-General, however, relied on a statement made by Sadiq Masih, deceased in the presence of his sons and brother, who appeared as P.W.3, P.W.4 and P.W.5, at the trial. According to him, this statement was a dying declaration and had been proved through the testimony of the afore-said P.Ws. This statement, even if admissible in evidence as a dying declaration, appears to be insufficient for proving an offence under section 316, P.P.C. We, also note that the medical evidence at the trial and the opinion of Dr. Abdul Sattar reproduced above, have credibility being made on oath and subject to cross-examination, as against a statement (in our opinion, uncalled for) which was relied upon by the High Court.

6. The petitioner is behind bars for more than 3 1/2 years. Considering that his conviction under section 316, P.P.C. is, prima facie, questionable, his continued incarceration based on such conviction, is likely to lead to injustice. We, therefore, allow this application and suspend the sentence awarded to the petitioner. He shall be enlarged on bail subject to his furnishing bail bonds in the sum of Rs.50,000 with two sureties each in the like amount to the satisfaction of the Sessions Judge concerned. This petition is accordingly converted into appeal and allowed. M.H./S-3/SC Appeal allowed.