2017 PLP 397 (SCMR)

MANZOOR AHMAD MALIK, J.

Petitioner Maqsood Ahmad along with his co-accused namely Zakir, Muhammad Abbas, Muhammad Majeed and Lal @ Lalu faced trial in case FIR No.64/2014, offence under sections 302, 337-L(2), 148, 149, P.P.C., registered at Police Station Ahmad Yar, District Pakpattan Sharif. The learned trial Court vide judgment dated 24.02.2016 while acquitting his co-accused, convicted the petitioner under section 302(b), P.P.C. and sentenced him to suffer imprisonment for life. He was also directed to pay Rs.200,000/- as compensation under section 544 -A, Code of Criminal Procedure, to the legal heirs of the deceased, in default whereof to undergo SI for six months. Benefit of section 382-B, Code of Criminal Procedure was extended to him. The petitioner challenged his conviction/sentence before the learned High Court in appeal, which is pending decision. In the meanwhile, the petitioner filed criminal miscellaneous application before the learned High Court for suspension of sentence till the final disposal of his appeal but the same was not granted by the learned High Court. Hence this petition for leave to appeal.

2. After hearing the learned counsel for the petitioner, learned AOR appearing for respondent No.2, learned Law Officer and perusing the available record and also the impugned orders of the Courts below with their assistance, it has been observed by us that, as per the FIR, the petitioner was not armed with any weapon. Precise allegation against him is that while his co-accused Muhammad Abbas and Muhammad Majeed (since acquitted) caught hold of complainant's father from his arms, the petitioner gave kick blows on his abdomen and testicals, who fell down and died at the spot. We have gone through the statement of Dr. Muhammad Idrees (PW7) who conducted the postmortem examination on the dead body of Muhammad lqbal (complainant's father). In his cross-examination, the Doctor (PW7) has categorically stated that "it is correct that I did not give final opinion about the cause of death of deceased." Moreover, the co-accused of the petitioner namely Muhammad Zakir and Lal @ Lalu who were allegedly armed with Sotas at the time of occurrence and as per FIR Zakir gave a Sota blow to the complainant, whereas Lal @ Lalu gave a Sota blow to Zafar Iqbal (PW2), have since been acquitted by the learned trial Court. It is pertinent to mention here that co-accused Lal @ Lalu was also attributed lalkara in the FIR. The other two co-accused namely Muhammad Abbas and Muhammad Majeed who allegedly caught hold of deceased from his arms while the petitioner gave kick blows, have also been acquitted by the learned trial Court. Another relevant aspect of the case is that complainant of FIR Saeed Ahmad (PW1) while appearing before the trial Court stated that his father was abducted by one Muhammad Sharif etc. and that he never submitted any application with regard to lodging of the instant FIR against the accused persons including the petitioner who were nominated in the FIR.

3. In this backdrop, when the Doctor (PW7) has not given final opinion about the cause of death of the deceased; when the co-accused of the petitioner namely Zakir and Lal @ Lalu who were allegedly armed at the time of occurrence and were attributed injuries on the injured witnesses, have been acquitted by the learned trial Court and when the complainant himself while appearing before the learned trial Court categorically stated that his father was abducted by someone else and present accused including the petitioner are not his culprits, prima facie, a case for suspension of sentence in favour of the petitioner is made out. The appeal filed by the petitioner is still pending before the learned High Court and its early disposal is not in sight. The guilt or otherwise of the petitioner shall be determined by the learned High Court after reappraisal of entire prosecution evidence while hearing the criminal appeal filed by the petitioner.

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 thousand only), with one surety in the like amount, to the satisfaction of the Deputy Registrar (Judicial) of the Lahore High Court, Lahore. The petitioner shall remain present before the learned High Court at the time of hearing of his appeal. MWA/M-76/SC Sentence suspended.