2005 PLP 1281 (YLR)

Adnan Zafar son of Zafar Iqbal seeks suspension of his sentence awarded to him by the learned Additional Sessions Judge Kharian, District Gujrat acting as Judge Juvenile Court under the Juvenile Justice System Ordinance, 2000 in case F.I.R. No.358 dated 9-8-2002, under section 302/34, P.P.C., vide his judgment dated 24-4-2004, wherein he was convicted under section 302(b), P.P.C. and sentenced to imprisonment for life. He was also convicted under section 201, P.P.C. and sentenced to three years' R.I. and a fine of Rs.20,

000. He was also ordered to pay compensation of Rs.50,000 to the legal heirs of the deceased and in case of non-payment of fine to undergo S.I. for six months. Both the sentences were ordered to run concurrently while benefit of section 382-B, Cr.P.C. was extended to him.

2. Mr. N.A. Shami, Advocate the learned counsel for the convict/applicant in support of his plea for suspension of sentence argued that the impugned judgment whereby the applicant has been convicted suffers from gross misreading and non-reading of material evidence; that the applicant/convict was not named in the F.I.R. and it was an un-witnessed occurrence; that the F.I.R. had been recorded on the statement of one Raja Ghazanfar Ali Lumberdar who had spotted the dead body of an unknown person in the upper Jhelum Canal; that it was during the course of investigation that the police came to the conclusion that it was the dead body of Maajid Hussain who had mysteriously disappeared 4/5 days ago; that no proper identification of the dead body had taken place and it could not be said with certainty that it was the dead body of Maajid Hussain deceased; that the conviction had been based on the solitary statement of Aasim Ghaffar (P.W.12) whose statement under section 164, Cr.P.C. had been recorded by the police on 16-9-2002 i.e. more than 37 days after recording of the F.I.R. He finally argued that the applicant was entitled to the suspension of sentence in view of the inherent weakness in the case of the prosecution, which is reflected in the judgment.

3. On the other hand Mr. Asad Manzoor Butt, Advocate the learned counsel for the complainant vehemently opposed the application for suspension of sentence and argued that in order to make out a case for suspension of sentence the applicant had to establish that there are inconsistencies in the judgment passed by the learned trial Court which according to him the learned counsel for the applicant had not been able to point out. He relied on Muhammad Nawaz v. The State 1996 PCr.LJ 1250 and Farhat Azeem v. Waheed Rasul and others PLD 2000 SC 18 in support of his arguments. In Farhat Azeem's case the Honourable Supreme Court held that the powers conferred on an Appellate Court under section 426, Cr.P.C. to suspend sentence pending the hearing of an appeal are not wider than the powers to release on bail under sections 497 and 498 of the Code of Criminal Procedure under sections 497 and 498, Cr.P.C. Likewise in the case of Muhammad Nawaz v. The State, this Court observed that the Appellate Court while deciding a petition for suspension of sentence does not embark upon deeper appreciation of evidence but it does attend to the question whether the perusal of evidence carried out by the learned trial Court is inconsonance with law or not and while doing so it has ordinarily to look into the judgment itself.

4. I have heard the learned counsel for the parties at considerable length and have also perused the record.

5. It has been noticed that the statement under section 164, Cr.P.C. of the eye-witness namely Aasim Ghaffar (P.W.12) was recorded on 16-9-2002 whereas the dead body which prosecution claims to be that of Maajid Hussain deceased had been recovered on 9-8-2002. There is also some doubt regarding the profession of the said witness namely Aasim Ghaffar who claimed that he was a Rickshaw driver. The evidence of extra judicial confession given by Ghulam Nabi (P.W.9) had not been believed by the Court. The recovery of the wire, chappal and a pistol had also been disbelieved by the learned trial Court. It has also been observed that the dead body had not been identified during the course of post mortem examination, which was conducted on 9-8-2002 and according to the doctor the time which elapsed between the death and post mortem was 4 to 6 days. Whether Aasim Ghaffar P.W.12 identified the dead body of Maajid Hussain on 9-8-2002 i.e. after 4 to 6 days, or not is a question which needs examination during the hearing of the main appeal. Likewise the question as to what credibility could be given to the statement of the solitary witness Aasim Ghaffar (P.W.12) also needs further examination by way of reappraising his evidence.

6. Moreover since the petitioner was a child within the meanings of Juvenile Justice System Ordinance, 2000 his trial had to be conducted separately strictly within the contemplation of the Ordinance, ibid. However, the record shows that the learned trial Court instead of conducting a separate trial tried both the petitioner as well as his co-accused Adnan Zafar jointly and used carbon copies of the record. This procedure adopted by the learned trial Court on the face of it militates against the mandatory provisions of Juvenile Justice System Ordinance, 2000 and it has to be seen at the time of hearing of the main appeal as to what sanctity could be attached to the impugned judgment of the learned trial Court.

7. For what has been discussed above this petition is allowed and the conviction and sentences of the petitioner are suspended 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 Deputy Registrar (Judl.) of this Court. H.B.T./A-299/L Sentence suspended.