2008 PLP 1870 (YLR)

Criminal Miscellaneous. No.1 of 2008 MUHAMMD AHSAN BHOON, J.

The petitioner seeks suspension of sentence. He stands convicted vide judgment dated 27-7-2007 in case registered vide F.I.R. No.457 dated 30-5-2006, under sections 302/324/427/148/149, P.P.C, Police Station, Civil Line, Gujrat and sentenced to ten years' R.I.

2. The prosecution story in brief is that the petitioner along with his co-accused and 2 unknown- persons armed with fire-arms and dandas were standing on the roof of the factory and started firing indiscriminately. Muhammad Ayub, petitioner made fire shot with his .30 bore pistol which landed on the right buttock of Nasir Hussain, then Ijaz made fire shot with .30 bore pistol which landed on the left buttock of Nasir Hussain. Unknown persons gave dandas blows to Muhammad Arshad, which landed on the knee of right leg of Muhammad Arshad. They continuously made fire shots and issued threats of being killed. Fires were also made on the car of the complainant party. On account of which roof of the vehicle and front screen on left side was damaged. On the hue and cry raised by the complainant party and hearing of fire shots the witnesses attracted at the spot and the accused party decamped from the spot.

3. The learned counsel for the petitioner seeks suspension on the grounds that prosecution story was disbelieved by the learned trial court while convicting the petitioner-accused under section 302(c), P.P.C; that the statement of accused was to be beneficial in toto and not partly.

4. On the other hand, learned D.P.-G. has opposed the petition.

5. Heard. Record perused.

6. The learned trial Court in its judgment while convicting the petitioner-accused, in Para-9 of the judgment has disbelieved the prosecution case, which is re-produced below:-- "Marks of the bullets were also observed on the outer gate of the Factory, when draftsman P.W.6 Akhtar Niqash inspected the venue of occurrence and prepared site plan Exh.PG on pointation of P.Ws. Ayub Hussain accused allegedly caused one fire-arm injury that too on the buttock of Nasir deceased which was not repeated by him, although he was in a position to do so. Portion of the body selected by him to cause fire-arm injury was also suggesting that he had no intention to cause death of the deceased but his intention was only to cause body injury. Thereafter death of the deceased was caused on account of complications developed due to septicemia as per medical evidence provided by P. W.4. "

7. The statement of accused was to be beneficial in toto and not partly. It is settled principle of law that exculpatory part of the statement of the petitioner cannot be discarded and inculpatory part cannot be read in isolation for awarding, conviction and the same fact is floating on surface of the judgment itself. The learned trial Court in its judgment while convicting the petitioner-accused excluded the exculpatory part of his statement under section 342, Cr. P. C. , which requires re-consideration.

8. In the face of the afore-referred findings, the evidence would require reappraisal and the existence of mens rea would be a moot point. In these circumstances, I am inclined to allow bail to the petitioner provided he furnishes bail bonds in the sum of Rs.2,00,000 with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court. Petitioner's sentence shall remain suspended till the final disposal of the appeal. H.B.T./A-36/L Sentence suspended.