Muhammad Nawaz Abbasi, J.--These two connected petitions involving common questions of law and facts are proposed to be disposed of through this single judgment.
2. In Criminal Petition No, 299 of 2005, Muhammad Saleem, petitioner has sought leave to appeal against the order dated 15.6.2005 passed by Lahore High Court, Lahore, whereby his application for suspension of sentence under Section 426(1) Cr.P.C. was dismissed and in Criminal Petition Bearing No, 377-L of 2005, Jamshed Ali, complainant, has sought leave to appeal against the order of the High Court of even date, by virtue of which Rao Ali Shehr Yar respondent, was allowed bail by suspension of his sentence under Section 426(1) Cr.P.C.
3. Muhammad Saleem and Rao Ali Shehr Yar, alongwith others, were tried for the charge of murder of Shakir Ali, deceased, by a learned Additional Sessions Judge, Faisalabad and having been found guilty of the charge, were convicted and sentenced to imprisonment for life with direction to pay compensation to the legal heirs of the deceased vide judgment dated 20.11.2005. The assailants allegedly armed with lathies, opened attack on the deceased and in consequence thereto, he sustained six injuries on the sensitive part of the body, out of which the following two injuries fatal to life, were attributed to the above named two accused:-- "AL/W 1 cm x 1/2 cm on top of head 1/2 cm right to midline (correspond to Injury No, 2).
A swelling 5 cm x 4 cm on left side of head in front of surgically stitched wound 'A' (correspond to MLC Injury No, 4)."
3. The occurrence in the present case had taken place in an ahata owned by Jamshed Ali, complainant, situated in Chak No, 3GB in the area of Police Station, Thekrewala District Faisalabad, which was in joint possession of Ghulam Muhammad and his son Muhammad Boota as licensee.
The immediate cause of the occurrence, was that complainant having suspected the occupants of ahata to have misappropriated certain articles belonging to him lying in the ahata when alongwith the witnesses went to the ahata to inquire from them about the articles in question, the accused named in the FIR, armed with deadly weapon suddenly opened attack on the deceased in consequence to which, he sustained injuries. The prosecution case was that the companions of the above named two accused made indiscriminate firing at the spot whereas they inflicted injuries to the deceased with Lathies on sensitive part of his body which proved fatal to his life. The real motive for the occurrence was that real brother of Rao All Shehr Yar was an accused in a case registered against him under Offence of Zina (Enforcement of Hadood) Ordinance, 1979, and Shakir Ali deceased was a prosecution witness against him in the said case.
4. The sentence of the Rao Ali Shehr Yar, respondent in Cr.P. No, 377-L/2005 was suspended by the High Court and he was granted bail mainly for the reason that there was an apparent conflict of the medical evidence with the ocular account as the injuries in question attributed to the two accused, in fact were the result of single blow attributed to Muhammad Saleem and the role of causing of an independent injury to the deceased by Ali Shehr Yar was not free from doubt. The learned Judge in the High Court having assessed the evidence concluded as under: "10. The case of the prosecution was that Muhammad Saleem accused gave successive blows to the left side of head of Shakir Ali. Thereafter, Rao Ali Shehr Yar, statingly, gave two blows with "Lathi" to the same part of the head of the victim. The medical evidence has not indicated that deceased had received successive blows to his head, rather, the replies given by medical Officer-PW 2, during cross-examination, indicated that it was only one injury, which was received by deceased.
Rao Ali Shehr Yar, apparently, was convicted by improper appreciation of record. After tentative assessm ent of evidence, it can safely be concluded that a second view about conviction and sentence awarded to him is quite possible. He has a case for suspension of sentence awarded to him. Therefore, I am inclined to allow the application to the extent of Rao Ali Shehr Yar accused. The sentence awarded to him by Addl. Sessions Judge by order dated 20.4.2005 in case FIR No, 287 dated 19.6.2000 under Section 302(b) PPC is hereby suspended. Rao Ali ShahR Yarpetitioner shall be released from custody during pendency of the appeal, subject to furnishing bail bonds in the sum of Rs, 1,00,000/-with two sureties, each in the like amount, to the satisfaction of the trial Court."
5. Learned counsel for Jamshid Ali, petitioner in Cr.P.C. No, 377L/2005 has contended that High Court having appraised the evidence in detail, suspended the sentence of Ali Shehr Yar, respondent under Section 426(1) Cr.P.C. and virtually decided the appeal on merits by holding that the two fatal injuries on the head of deceased were result of single blow which was attributed to Muhammad Saleem.
6. Learned counsel for the respondent on the other hand has submitted that the conflict of medical evidence with ocular account, was apparent on the face of record and in view thereof, the High Court taking notice of the major contradictions in the prosecution evidence seriously reflecting upon the truthfulness of the eye-witnesses' account of the prosecution suggesting strong possibility of ultimate acquittal of the accused, proceeded to suspend his sentence strictly in accordance with the principle laid down by this Court for exercise of the power under Section 426(1) Cr.P.C. in such a case of doubtful character.
7. There is no cavil to the proposition that appellate Court in exercise of its power under Section 426 Cr.P.C. may in a suitable case, suspend the sentence of a convict and grant him bail pending disposal of his appeal and notwithstanding any material difference in the principle governing for grant of bail under Sections 497 and 426 Cr.P.C. the consideration for suspension of sentence and grant of bail pending trial may not be the same, therefore, the distinction must be adhered to for exercise of power under the above provisions in proper manner. The power of appellate Court under Section 426(1) Cr.P.C. is not limited and the Court may, pending disposal of an appeal, suspend the sentence of a convict in an appropriate case in its discretion for good and sufficient reasons but this power of suspension of sentence and grant of bail is not wider than that of under Section 497 Cr.P.C. and unless it is shown that conviction is based no evidence or being based on an inadmissible evidence, is not ultimately sustainable, the grant of bail under Section 426(1)
Cr.P.C. with the consideration of ascertaining the question of guilt or innocence on merits through appraisal of evidence is not justified as the bail either under Section 497 or 426(1) Cr.P.C. could be allowed only on the basis of tentative assessment of evidence.
8. The High Court in the present case, after appraisal of evidence in detail, having held that ocular account was in conflict to the medical evidence, granted bail to Ali Shehr Yar with the observation that the role of causing injuries to the deceased assigned to him was not supported by medical evidence as the two injures on the head of deceased, declared fatal to his life were the result of single blow attributed to Muhammad Saleem and the injury attributed to Ali Shehr Yar was not the result of an independent blow. The observation to the extent of more than one injury can be result of single blow may be tentative in nature but the conclusion that Ali Shehr Yar having not caused the fatal injury to the deceased, did not incur vicarious liability, would certainly be considered a verdict of acquittal on merit pending disposal of appeal. This Court normally is reluctant to interfere in the discretion exercise by the High Court in bail matters but if the discretion is exercised in departure to the settled principles of criminal administration of justice, the reluctance to interfere would result in miscarriage of justice. The witnesses have clearly stated that Muhammad Saleem, petitioner in Crl.P. No, 299 of 2005 and Rao Ali Shehr Yar, respondent in Crl. P.377-L/2005, caused one injury each to the deceased on his head and according to the medical evidence deceased sustained two independent fatal injuries on his head. The finding of the trial Court was also that the two fatal injuries sustained by the deceased on head were caused by the above named two accused and unless it could be shown from the evidence that the finding of the trial Court was in utter disregard to the factual position on the record, the mere possibility of another view of the evidence would riot be a valid and sufficient ground to suspend the sentence under Section 426(1)
Cr.P.C. and grant bail to a life convict pending disposal of his appeal against the conviction on capital charge. There is difference between tentative assessment and deep appraisal of evidence and rule is that appellate Court may on the basis of tentative assessment for reason to be recorded, suspend the sentence and grant bail to a convict but the exercise of the power of grant of bail through suspension of sentence on the basis of deep appraisal of evidence is against the principle governing the exercise of powers under Section 426(1) Cr.P.C. This is settled law that appellate Court should not go deep into the evidence for the purpose of suspension of sentence by giving the reasons which may amount to express its views on the merits of the case prejudicing the case of one or the other party in appeal.
9. In the light of foregoing reasons we are of the considered view that Rao Shehr Yar, Respondent in C.P No, 377-L/2005 has been granted bail under Section 426(1) Cr.P.C. in improper exercise of discretion.
10.Muhammad Saleem, petitioner in Criminal Petition No, 299 of 2005 has sought suspension of sentence on the grounds firstly that there was material contradiction of the medical evidence with the ocular account which would lead to a definite result of ultimate acquittal of the petitioner and secondly the injuries sustained by the accused, would strongly suggest that defence plea was more plausible and near to the truth, therefore, there was every possibility of his success in appeal.
In nutshell the learned counsel on the basis of defence version, and the minor contradictions and discrepancies in the prosecution evidence, made an attempt to make out a case for suspension of sentence. We are afraid, the grounds taken in support of this petition for suspension of sentence and grant of bail cannot be appreciated without detail scrutiny of evidence and such an exercise cannot be undertaken by this Court at this stage.
11. In the light of foregoing reasons we dismiss Criminal Petition No, 299 of 2005 and refuse leave in this petition whereas Criminal Petition No, 377-L of 2005 is converted into an appeal and allowed.
The bail granted to Ali Shehr Yar, respondent, in by the High Court under Section 426(1) Cr.P.C. is cancelled.