2015 PLP 1994 (YLR)

MUHAMMAD IQBAL KALHORO, J.

Through instant applications filed under section 426, Cr.P.C. in Criminal Appeal No.49/2014, preferred by the appellant against the impugned judgment dated 29-4-2014, whereby he has been convicted and sentenced to death under section 302(b), P.P.C., the appellant has sought suspension of sentence and his release on bail.

2. The allegations against the appellant are that he on 22-5-2012, committed murder of (nephew of complainant) Ali Akbar, in front of his house situated in Golimar Nawabshah by pumping bullets in his body. As stated above, at the culmination of trial, the appellant was found guilty by the trial Court, resultantly, he was convicted in above terms.

3. Learned counsel appearing on behalf of the appellant has emphatically argued that the evidence has not been properly appreciated by the trial Court which is full of contradictions. According to him, recovery of pistol from the appellant was doubtful; the FIR was registered with delay of one day which was not explained by the prosecution during the trial. Per learned counsel the place of incident shown by the prosecution in the FIR and deposed by the P.Ws. in their evidence is quite different, therefore, the benefit of same ought to have been extended in favour of appellant by the trial Court. He also stated that no independent person has been cited, in the prosecution case; all the witnesses introduced by the complainant in the prosecution case are his relatives inter se, therefore, their evidence cannot be relied upon in view of the admitted enmity between the parties. He was of the view that in view of above grounds, it would be in the interest of justice to suspend the sentence of the appellant till final decision of the present appeal and he be released on bail. He has also argued that since there are certain contradictions in the evidence adduced by the prosecution witnesses, the benefit of which shall also be extended to the appellant at this stage.

4. Conversely, the learned counsel appearing on behalf of the complainant argued that the judgment of the trial Court does not suffer from any illegality or irregularity and the same is not based on any mis-appreciation of evidence. He argued that all the prosecution witnesses are natural witnesses whose presence at the spot was not disputed even by the appellant. He further argued that no material contradiction has been pointed out by the appellant justifying his release on bail in a case whereby he has been awarded capital punishment. According to him, the prosecution evidence against the appellant is consistent wherein no discrepancy of material nature could be found. He lastly prayed for dismissal of application under section 426, Cr.P.C.

5. On the other hand the learned D.P.G. appearing on behalf of the State argued that this Court while deciding the application under section 426, Cr.P.C. cannot deeply appreciate the evidence brought by the prosecution during the trial. He argued that the principles governing grant of bail under section 497, Cr.P.C. are the same which regulate the suspension of sentence under section 426, Cr.P.C. He argued that while deciding a bail application under section 497, Cr.P.C. the deeper appreciation of evidence cannot be undertaken; an exercise whereby examination of evidence given by the prosecution witnesses in the present case would not be warranted under the law and would be against the principles laid down by the honourable Supreme Court in this regard.

6. We have heard the learned counsel and with their assistance have been taken a tentative look at the material before us.

7. There is no cavil to proposition of law that this Court while deciding the application under section 426, Cr.P.C. cannot enter into deeper appreciation of evidence adduced by the prosecution witnesses. Such would be an exercise in violation of the principles laid down by the Honourable Supreme Court while examining the scope of an application under section 426, Cr.P.C. The reference can be made in the case of Manzoor Ahmed v. Fazal Ahmed, reported in 2013 SCMR 1403, wherein the Honourable Supreme Court has observed as under:-- "Having considered the submissions made by learned counsel for the parties and learned Law Officer, we find that in suspending the sentence the learned High Court discussed the prosecution evidence in a manner which is the preserve of the Appellate Court. This amounted to deeper appreciation of evidence which exercise could not have been undertaken in a petition under section 426, Cr.P.C. The observations made in para 4 of the impugned judgment are likely to prejudice the case of the prosecution in appeal and the learned Court, we may observe with respect, did not keep in view the principles laid down by this Court for the exercise of jurisdiction under section 426, Cr.P.C."

8. In the present case, the death sentence has been awarded to the appellant on the basis of evidence of eye-witnesses recorded during trial which cannot be disturbed in view of the dictum laid down by honourable Supreme Court in the above case, unless it was shown by the appellant that findings of the trial Court were in disregard to the factual position on record. Learned counsel in his arguments though made mention of contradictions but has failed to point out any glaring contradiction in the evidence which can be tentatively assessed in his favour. The difference, in fact, exists between the tentative appraisal and deep appreciation of evidence and the rule in this regard is that the appellate Court could only examine the evidence of the prosecution tentatively for the purpose of deciding an application under section 426, Cr.P.C, the deep dive into prosecution evidence to suspend the sentence by giving reasons might amount to expressing views on merits and may prejudice the case of either party, which is not allowed at this stage. Consequently, the listed applications under section 426, Cr.P.C. are hereby dismissed. ARK/G-24/Sindh Applications dismissed.