2008 P Cr (PLP)

Through this petition Haji Bakhu has sought suspension of sentence awarded to him by the learned Addl. Sessions Judge, Dera Ghazi Khan vide judgment, dated 15-3-2006 whereby he was convicted under section 3020), P.P.C. read with section 149, P.P.C. and sentenced to life imprisonment. He was further found guilty under sections 324/149, P.P.C. and sentenced to ten years' R.I. on three counts. Besides said sentences he was convicted and sentenced to five years' R.I. under section 336, P.P.C.

2. According to the prosecution story fifteen persons had launched an attack upon the complainant party over a dispute of land. As a result of said occurrence Khadim Hussain had died due to the injuries received at the hands of the accused persons while three persons namely Muhammad Azam, Muhammad Saleem and Rahim Bakhsh were injured.

3. Precise allegation levelled against the petitioner was that he had caused a blow with club (Sota) on the head of Muhammad Azam, injured P. W.5.

4. In support of this petition, learned counsel for the petitioner has contended that petitioner is an old man of 73, years; that according to the prosecution five persons had caused injuries to Azam, injured P.W. but according to the medical evidence he had received only two injuries; that during the successive investigations the petitioner was found innocent. Further adds that D.W.2 had appeared before the Court to vouch the innocence of the petitioner. Lastly he has contended that Hafiz Muhammad and Ghulam Mustafa, co-accused have already been released on bail and following the rule of consistency also the petitioner is entitled to bail.

5. Conversely learned D.P.G. as well as learned counsel for the complainant has strenuously opposed the bail application on the ground that according to the prosecution case the petitioner had caused a blunt weapon injury on the head of Muhammad Azam and said allegation was duly corroborated by the doctor who had medically examined said Muhammad Azam, injured P.W.5. D.P.G. adds that injury attributed to the petitioner was found to be dangerous to life and that after having been found guilty by the learned trial Court the initial presumption of innocence attached to the accused has evaporated in the air. As far as old age is concerned learned counsel for the complainant has contended that petitioner is not infirm person and, therefore, he is not entitled to bail. In this regard he has relied upon the case of Hakim Ali and 3 others v. The State 1979 SCMR 114.

6. After hearing the arguments advanced by both the sides we have concluded that the allegation of causing blunt weapon injury to Azam, injured, P.W. has been duly corroborated by the medical evidence. According to Dr. Fakhar-ud-Din Hashmi who, had appeared as P.W.12, Injury No.1 (attributed to the petitioner) was dangerous to life. He had further deposed that due to the precarious condition the said injured P.W. had been referred to Nishtar Hospital Multan. The sentence can be suspended under section 426, Cr.P.C. after coming to the conclusion that at the end of the day there would be no, chance of maintaining conviction awarded to the convict. In this regard reliance is placed upon a case of Makhdoom Javed Hashmi v. The State 2007 SCMR

246. In the case in hand, in presence of the oral as well as medical evidence, at this stage it is very difficult for us to hold that there is no chance of maintaining the conviction awarded to the petitioner at the time of the decision of the appeal. In this regard we are pinning our faith on a cases of Baber Ali v. Bashir Ahmad 2007 SCMR 184 and Muhammad Nawaz v. Muhammad Nawaz alias Naji and 4 others 1997 SCMR 1521. Besides that deeper appreciation of evidence is not permissible at this stage. As far as opinion of the police is concerned suffice it to hold that same is neither admissible in evidence nor binding on the Courts.

7. For what has been stated above, we are not inclined to suspend the sentence awarded to the petitioner and, therefore, the application in' hand is dismissed. H.B.T./H-33/L Application dismissed.