' TASSADUQ HUSSAIN, JILLANI, J.--- Petitioner Muhammad Shahbaz son of Umar Hayat caste Gondal, resident of Khanana Tehsil Malkwal, District Mandi Bahauddin was tried along with four others in the case registered vide F.I.R. No,316, dated 26-7-1997 under sections 302, 324, 148, 149, P.P.C. At Police Station Malkwal, District Mandi Bahauddin. The prosecution story is that on the fateful day and time complainant was coming towards the village from his house riding on a mare, that when they reached near the Haveli of Allah Ditta Lohar accused attacked them. Umar Hayat was armed with .222 rifle he raised a Lalkara whereupon Muhammad Ameer fired with his .12 bore gun which hit on the nose at Manzoor deceased followed the fire by Umar Hayat which too hit Manzoor on latter's head he fell down whereafter co-accused Muhammad Abbas fired with his .12 bore gun which hit the complainant at the right temple, he also fell down and thereafter Muhammad Shahbaz co- accused fired at him with .222 rifle which hit him (the complainant) on the backside of his head. On intervention of the P.Ws. The accused decamped. The learned trial Court vide its judgment dated 7- 3-2002 convicted Umar Hayat, Muhammad Shahbaz, Muhammad Abbas and acquitted the remaining two Faiz Muhammad and Mazhar Iqbal under sections 302, 148 and 149, P.P.C. Umar Hayat was sentenced to death. Muhammad Shahbaz and Muhammad Abbas petitioners were also convicted under section 324, P.P.C. As well. The sentences awarded to Muhammad Shahbaz and Muhammad Abbas were as under:-- "Under section 324, P.P.C. 10 years' R.I. And also convicted under sections 148, 149 read with section 302(b), P.P.C. And sentenced to life imprisonment with a fine of Rs,20,000 in default whereof to undergo one months' S.I."
2. Learned counsel for the petitioners seeks suspension of sentence on the ground that firstly he has undergone the entire sentence under section 324, P.P.C. And his conviction under section 302, P.P.C. Would not be sustainable since he is not attributed any injury to the deceased. He further contended that at the time of occurrence petitioner was below 18 years of age and he was a juvenile.
3. Learned counsel for the petitioner Muhammad Abbas submitted that only single fire-arm injury on the person of complainant is attributed to him and that he was declared innocent during investigation and he is an old and sick person suffering from Tuberculosis.
4. Learned counsel for the State opposed the petition and submitted that both petitioners stand convicted under section 302, P.P.C. And that it is too early to allow them bail at this stage.
5. We have heard the learned counsel for the parties and have gone through the impugned judgment.
6. Petitioners are not attributed any injury to Manzoor deceased. The only role of Muhammad Shahbaz petitioner is a simple fire-arm injury on the person of Muhammad Ilyas complainant.
Pursuant to an order of this Court, dated 22-7-2003 petitioner was examined by a Board of Doctors and vide the report dated 22-3-2004 which has been placed on record it has been found that, "the Board is unanimously of the opinion that the age in this subject-matter is 23 years", which indicates that he was below 18 years of age at the time of occurrence. It is not denied by learned counsel for the State that in the initial report under section 173, Cr.P.C. Muhammad Shahbaz and Muhammad Abbas were declared innocent. However, in subsequent investigation and in the supplementary challan they were held guilty. He has undergone more than 7 years of sentence as per report submitted. Coming to the case of Muhammad Abbas petitioner we note that he is around 65 years of age, he was declared innocent in two successive investigations on the basis of which in the initial report under section 173, Cr.P.C. He was placed in Column No,2 and it was only in subsequent investigation that he was found involved. He remained on bail during trial on account of his age and the fact that he was suffering from Pulmonary Tuberculosis. The report of the Medical Board which was reproduced in the bail granting order of the learned trial Court has been placed before us wherein the report of the Board dated 1-6-1999 is to the following effect:- "The physical examination and investigations revealed that the patient is suffering from Pulmonary Tuberculosis along with Diabetes Mellitus. He is advised admission for active treatment in D.H.Q.
Hospital M.B. Din for some period. Patient will continue A.T.T. Along with management of Diabetes Mellitus for at least 9 months. Patient will be discharged when disease is under control.
' Superintendent of Police/Superintendent District Jail, M.B. Din are requested to provide necessary police guard for the period for which patient remains admitted in this hospital."
7. For what has been discussed above, we allow both the C.M. (Nos.2 of 2003 and 1 of 2004) and direct that subject to petitioners furnishing bail bonds in the sum of Rs,1,00,000 (Rupees one hundred thousand only) each with two sureties each in the like amount to the satisfaction of the learned trial Court, their sentences shall remain suspended till the final disposal of this appeal.