P L D 2016 Lahore 408 (PLP)

Faraz Shaukat (petitioner) has filed this petition under section 426(2-B), Cr.P.C. seeking for suspension of his sentence and consequential release on bail, pending disposal of his appeal before the Hon'ble Supreme Court of Pakistan.

2. A resume of the relevant facts would tell that the appellant was tried by the learned trial court (Additional Sessions Judge, Gujjar Khan) in case-F.I.R. No.226/2005, dated 3.10.2005, under section 302/34 P.P.C., Police Station Mandra, district Rawalpindi and he was held guilty for an offence under section 302(b), P.P.C. and sentenced to death as Ta'zir, with order to pay an amount of Rs.1,00,000/- as compensation under section 544-A Cr.P.C., in default whereof to undergo another term of six months simple imprisonment, vide judgment dated 30.10.2008 by the said court. The petitioner assailed his conviction through Criminal Appeal No.300/2008 and the learned trial court submitted Murder Reference No.34/2008 for seeking confirmation of the death sentence awarded by it to the petitioner. The appeal filed by the petitioner was disposed of by a learned Division Bench of this court vide judgment dated 19.3.2012 by converting his death sentence to imprisonment for life as Ta'zir. The other constituents of the sentence awarded by the learned trial court remained intact but petitioner was held entitled to the benefit of section 382-B Cr.P.C. The murder reference was answered in the negative. The petitioner challenged the judgment of this court through J.P. No.114/2012, wherein leave to appeal has been granted by the Hon'ble Supreme Court of Pakistan on 15.6.2012. Hence, the instant petition.

3. Learned counsel for the petitioner has contended that the prosecution case against the petitioner suffers from many a lacunae, a description whereof has been made in the leave-granting order by the august Supreme Court of Pakistan, which gives rise to a strong probability that the petitioner's appeal against the judgment of this court may succeed in the long run; the medical evidence being discrepant renders no corroboration to the ocular account rendered by P.W.11 and P.W.12, who were most probably the chance witnesses; maintains that the petitioner has been in jail for more than eleven years, his sentence has already been commuted to imprisonment for life by this court, therefore, he may be granted the relief sought after pending disposal of his appeal before the apex court.

4. In reply to the above, learned Deputy Prosecutor General Punjab has opposed this petition but conceding at the same moment as to reduction in death sentence of the petitioner to imprisonment for life by this court, pressing hard that the fire-shot attributed to the petitioner proved terminal as it cut the life-line of Mubeen Akhtar deceased; adds that grant of leave by the apex court does not necessarily mean that the petitioner is entitled to the relief prayed for.

5. We have heard at length the learned counsel for the parties and perused the available record. We find it a case which mainly hinges on an order of the august Supreme Court of Pakistan, passed on 15.6.2012 in Jail Petition No.114/2012, filed by the petitioner against afore-referred judgment of this court whereby his conviction under section 302(b) P.P.C. had been upheld but his sentence reduced to imprisonment for life. The apex court while referring to various contentions of the learned counsel for the petitioner in the aforesaid jail petition and that of another co-convict (JP No.113/2012) granted leave to appeal against the judgment of this court in the following manner:- "Jail Petitions Nos.113 and 114 of 2012 It has inter alia been contended by the learned counsel for the petitioners that the FIR in this case had been lodged after a significant delay; Mubeen Akhtar deceased had initially been examined before his death by Dr.Farzana Murtaza (PW2) who had noticed only one entry wound in the abdomen of the deceased and before the learned trial court she had categorically stated that the deceased had been brought in an injured condition by Sajid Mehmood, FC who had not been produced by the prosecution as a witness; the statement made by Dr. Farzana Murtaza (PW2) established that the eye-witnesses produced by the prosecution before the learned trial court were not present with the deceased at the time of receipt of injuries by him; and the post-mortem examination of the dead body had been proved by Dr. Ahmad Farooq (PW8) and the Post-mortem Examination Report showed that the doctor had found two entry wounds in the abdomen of the deceased and it was not clear as to how a firearm entry wound had been added to the dead body during the deceased's medical examination by PW2 and conducting of post-mortem examination of the dead body. It has vehemently been argued by the learned counsel for the petitioners that the eye-witnesses produced by the prosecution were not only closely related to the deceased but they were also chance witnesses who had failed to establish the reason for their stated presence with the deceased at the relevant time. With reference to the statements made by the said eye-witnesses before the learned trial court the learned counsel for the petitioners has emphasized that the said statements were replete with material improvements which went a long way in establishing that the said eye-witnesses were nothing but planted witnesses. He has also highlighted that the motive set up by the prosecution had been discarded by both the learned courts below and the medical evidence did not provide full support to the ocular account. With these submissions the learned counsel for the petitioners has maintained that the prosecution had failed to prove its case against the petitioners beyond reasonable doubt entitling them to be acquitted by this Court.

2. The contentions and submissions of the learned counsel for the petitioners noted above require reappraisal of the evidence so as to secure the ends of justice. These petitions are, therefore, allowed and leave to appeal is granted therein for the purpose." The delayed F.I.R., the discrepant medical evidence as to the role of the petitioner, the inter-se relationship of the eye-witnesses as well as likelihood of their being the chance witnesses, the materially improved testimonies of the eye-witnesses and the motive having been discarded by the trial court as well as by this court were the factors, pressed into service by the learned counsel for the petitioner, which persuaded the apex court to grant leave to appeal in the above-noted petitions. All of the contentions made would be open to a detailed scrutiny by the apex court and probability cannot be ruled out that the prosecution case may fall through in the long run. There cannot be two opinions about the argument of the learned Deputy Prosecutor General Punjab that mere grant of leave to appeal did not necessarily mean that the petitioner had become entitled to suspension of his sentence as a matter of right, but it could not be brushed aside either that in a suitable case of alike nature, the sentence of a convict may be suspended, as envisaged by section 426(2-B) Cr.P.C. The petitioner, after having been arrested on 18.10.2005 has been languishing in jail ever since. The requisite report submitted by the jail superintendent reveals that the petitioner-convict had served sentence of eleven years and four months, inclusive of remissions, being in jail. His continued incarceration for an indefinite period of time may not serve any useful purpose for the prosecution's case.

6. For the foregoing reasons, we feel persuaded to allow this petition, which we do accordingly. The sentence of the petitioner is suspended pending decision of his appeal before the Hon'ble Supreme Court of Pakistan and he shall be released from the prison subject to furnishing bail bonds in the sum of Rs.5,00,000/- (five lacs) with two sureties each in the like amount to the satisfaction of the Deputy Registrar (Judl.) of this court. HBT/F-9/L Petition allowed.