' Through this application moved under section 426, Cr.P.C. Suspension of sentence awarded to Riaz alias Doori and Fiaz petitioners/appellants vide judgment dated 23-12-2006 rendered by the learned Additional Sessions Judge, D.G. Khan, has been sought.
2. Succinctly recounting the facts of the case as narrated in the F.I.R. No,94 of 2005 dated 18-6- 2005, registered at Police Station Chotti, District D.G. Khan in respect of offences under sections 302/ 148/149, P.P.C. Are that on 18-6-2005 at 12-00 noon, Maqsood Ahmad son of Qadir Bakhsh complainant, P.W.7, had gone to fetch some articles from diesel agency of Zubair Khan, where Fiaz petitioner armed with iron wire-lock, Ghulam Rasool alias Rasoola (co-convict) armed with Chhuri, Eisa (co-convict) armed with Sota, Riaz alias Doori petitioner, Haq Nawaz and Hafiz Abdullah co- convicts empty-handed reached there. Hafiz Abdullah accused allegedly caught hold of Maqsood Ahmad (deceased) while Ghulam Rasool co-accused inflicted a Chhuri blow on the right thigh below the abdomen of the deceased. Fiaz petitioner allegedly gave wire-lock blow on the head of the deceased. Eisa co-accused inflicted Sota blow on his chest, while Riaz petitioner and Haq Nawaz co-accused gave blows of fist and slaps to the deceased. Maqsood Ahmad (deceased) statedly fell down and all the accused took to their heels. On the way to the hospital, Maqsood Ahmad succumbed to the injuries.
3. According to the prosecution motivating factor of the said unfortunate incident was a petty dispute between Ghulam Rasool and complainant's nephew, namely Muhammad Ayyub, on which an altercation had taken place. All the above mentioned accused including the petitioners after being challaned were tried by the learned Additional Sessions Judge, D.G. Khan, who convicted and sentenced Ghulam Rasool co-accused to death sentence, while the petitioners, Eisa and Hafiz Abdullah co-accused were awarded life imprisonment under sections 302(b), 149, P.P.C. All the accused were also directed to pay Rs.1,00,000 each as compensation to the legal heirs of the deceased in default whereof, they were further directed to undergo six months' S.I. Each. All the accused including the petitioners were further convicted under section 148, P.P.C. And sentenced to .3 years' R.I. With fine of Rs.5,000 each.
4. Both the petitioners have tiled Criminal Appeal No,27 of 2007, which is pending adjudication.
5. Learned counsel for the petitioner has argued that the role attributed to Riaz petitioner was only of giving fists and slaps to the deceased; that the said allegation had not found any corroboration from the medical evidence inasmuch as according to the doctor who had conducted the post- mortem examination upon the dead body of the deceased no such injury was found on his body.
As far as Fiaz petitioner is concerned, it has been contended that the role of causing a blow on the head of the deceased with iron wire-lock had also been belied by the medical evidence as no such injury had been found on the head of the deceased during the post-mortem examination.
6. Conversely, the learned counsel for the complainant has opposed the prayer of suspension of sentence.
7. We have perused the record and the impugned judgment with the assistance of the learned counsel for the parties.
8. It has been straightway noticed by us that sentence of Hafiz Abdullah accused has already been suspended and he has been granted bail by this Court vide order, dated 1-2-2007 passed in Criminal Miscellaneous No,1 of 2007 in Criminal Appeal No,6 of 2007. A perusal of the impugned judgment has revealed that the allegation levelled against the petitioners of causing injuries to the deceased, prima facie, has not been corroborated by the medical evidence. According to the post-mortem report the, deceased had received only two injuries out of which one was a stab wound while the other was a bruise on the chest Of the deceased. Both the said injuries were not attributed to the present petitioners. The sharp-edge injury was attributed to Ghulam Rasool co- accused who has been convicted and sentenced to death while the blunt weapon injury received on the chest of the deceased was attributed to Eisa co-accused. The question regarding the possibility of throwing the net wider. By assigning the role of causing such injuries which prima facie do not exist would be requiring reappraisal of the evidence at the time of deciding the appeal. Consequently, we have formed the opinion that the petitioners have succeeded to make a case of suspension of sentence and consequently, while exercising the powers under section 426, Cr.P.C. The sentence awarded to the petitioners is suspended and they are allowed bail subject to their furnishing bail bonds in the sum of Rs.1,00,000 with one surety each in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court.