' ZUBDA-TUL-HUSSAIN, J.---The petitioners, Muhammad Amin, Munir Ahmed and Muhammad Akmal along with four other co-accused were tried by the learned Additional Sessions Judge, Faisalabad for an offence under sections 302/148 read with section 149, P.P.C. In case F.I.R. No, 258, dated 15-4-2007, registered at Police Station Thikriwala, District Faisalabad, for the murder of one Muhammad Boota, son of the complainant, Mst. Shamshad. At the conclusion of the trial, the aforesaid three accused were convicted under section 302(b) P.P.C. And sentenced to life imprisonment besides the compensation of Rs,50,000 each and in default of payment of compensation to undergo six months' S.I. An appeal has since been filed by them which is pending adjudication. The rest of the accused, namely, Liaquat Ali, Sarfraz, Muhammad Aslam and Muhammad Sarwar were acquitted of the charge by giving the benefit of doubt. Besides them one Muhammad Asghar was also an accused, rather the principle accused to whom fire-arm injury on the head of the deceased was attributed remained proclaimed offender and his case was dealt with under section 512, Cr.P.C. Perpetual warrants of arrest were issued by the learned trial Court against him.
2. The aforesaid appellants, Muhammad Amin, Munir Ahmed and Muhammad Akmal have filed the instant application under section 426, Cr.P.C. Seeking the suspension of life imprisonment pending the disposal of their appeal.
3. Precisely the occurrence as reported by the complainant Mst. Shamshad had its inception in a dispute relating to the possession of agricultural land allegedly sold out by the complainant, her son i.e, the deceased Muhammad Boota and her daughters. It was claimed by the complainant that the accused were trying to take the possession forcibly and in that context on 15-4-2007 at 7- 00 a.m. They tried to take over the land and when the complainant's son, Muhammad Boota, showed resistance. Muhammad Asghar fired a shot on his head. Thereafter the appellants also made one fire each landing on the belly of Muhammad Boota who succumbed to the injuries at the spot.
4. The iearned counsel for the petitioners referred to the contents of the judgment of the learned trial Court to show that the motive of the case had been disbelieved, no recovery of weapon of offence was effected from the petitioners, the P.Ws. Were inter se closely related and the ocular evidence was contradictory to the medical evidence. The learned counsel further pointed out that the fatal injury was not attributed to any of the petitioners and was rather alleged against Muhammad Asghar who is still a proclaimed offender. As to the claim of the complainant on the possession of the land it was pointed out 'that a number of articles constituting the case property such as the cots, the bull and the cart etc. Belonging to the petitioners were taken into possession by the Investigating Officer from the disputed land and were also released on spurdari to Munir Ahmed petitioner which fact, according to the learned counsel for the petitioners, was sufficient to establish the possession of the petitioners on the disputed land.
5. The learned counsel then maintained that the conduct of the deceased was obnoxious and objectionable personally as well as in relation to the dispute of land. It was submitted that ten criminal cases for the heinous offences like dacoity and illegal possession of armaments etc. Were registered against him and above all was the glaring dishonesty that he received the sale price of the land through a cross-cheque and even then tried to go back upon the transaction of sale. He was trying to grab the land and its possession which had not only been delivered by the vendors themselves but the learned trial Court had also not believed the contention of the complainant in that behalf.
6. It has, been vehemently argued by the learned counsel for the petitioners that even without going into the disputed contentions of the parties, it is apparent on the record of the F.I.R. As well as the judgment under appeal that the first firearm injury was attributed to Muhammad Asghar which having hit on the head of the deceased proved to be fatal and as such the subsequent one injury each attributed to the petitioners was almost inconsequential insofar as the murder or death of Muhammad Boota deceased was concerned. The learned counsel then by recapitulating the above circumstances argued that the provisions of section 497 and 498, Cr.P.C. Should be the guideline for exercising the powers under section 426, Cr.P.C. And a person accused of a non- bailable offence may be released on bail pending the decision of the appeal if there appear reasonable grounds for believing or it is tentatively shown by the perusal of the judgment that he is not guilty of the offence with which he has been punished. He accordingly traced various parts of the judgment in support of the contentions raised by him and as mentioned above.
7. Relying upon the dictum laid down in Muhammad Arshad v. The State (2006 PCr.LJ 1568 Lahore) and Khalil-urRehman v. Muhammad Afzal and another (1998 SCM R 523), the learned counsel reiterated that the motive not having been proved, recovery of weapon of offence not having been effected and the deceased being a man of criminal antecedents, the petitioners were entitled to the concession of section 426, Cr .P.C.
8. The learned counsel for the complainant, however, maintained that a person convicted and sentenced to life imprisonment would not be entitled to bail under section 426, Cr.P.C. Unless very strong and exceptional grounds were made out to believe that his conviction was not liable to be sustained or there were even chances of his conviction or acquittal. He also pointed out that the powers conferred on an appellate Court under section 426, Cr.P.C. To suspend sentence pending the hearing of an appeal were not wider than the powers of release of an accused on bail during the pendency to the trial; rather the presumption of innocence having been dispelled by the judgment of the conviction there would always exist reasonable grounds for believing that he has been guilty of an offence and the benefit of section 426 cannot be extended to him. In relation to the facts of the case it was argued that the petitioners were nominated in the F.I.R. And were found guilty during the trial with specific role qua the deceased. As to the observations of the learned trial Court regarding the motive and recoveries etc. The learned counsel states that the absence or weakness of motive cannot by itself be a sufficient reason to release the convict on bail because the trial Court in all cases of conviction would base its findings on material or evidence sufficient to bring home the guilt of the accused.
9. It is, of course, true that the powers under section 426, Cr.P.C. Have to be exercised judiciously by considering the relevant facts without entering or commenting upon the merits of the case. If the contentions raised require deeper appreciation or probe and evaluation of evidence the sentence would not be suspended and only a tentative assessment of the evidence forming the basis of the findings of guilt against the ,accused can be undertaken. The appellate Court cannot question the appraisal of the evidence carried out by the trial Court as to its conformity with the law and while dealing with the application under section 426, Cr.P.C. Has ordinarily to look to the judgment itself.
Where on perusal of the facts in the judgment, of the learned trial Court, the appellate Court comes to the conclusion that the judgment suffers from any legal error it may be justified to suspend the sentence and grant the bail but, again, care has also been taken in this behalf that the observations are not tantamount to reappraising the evidence or embarking upon the merits of the case.
10. Seen in this perspective the contents of the judgment impugned in the appeal bear out the contentions raised by the learned counsel for the petitioners. No doubt one fire-arm injury is attributed to each of the petitioners but the perusal of the judgment itself shows that these were the fires which were shot subsequent to the fatal injury given by Muhammad Asghar (who is not the petitioner) on the head of the deceased. The learned trial Court duly took this aspect of the case into consideration while imposing mitigating sentence upon the petitioners. The learned trial Court also disbelieved the motive of the case as alleged by the complainant in relation to the possession of the disputed land. It was also conscious of the effect of the non-recovery of the weapon of offence as well as the discrepancy of the medical evidence with that of the prosecution story as set out in the F.I.R.
11. It would neither be appropriate for this Court nor I intend to dilate upon the merits and effect of the alleged contradictions but the purpose alone is to refer to the situation as visualized by the learned trial Court in its judgment under the appeal. The weakness of the motive or the failure of the prosecution to establish the motive by itself may not be enough to draw any substantial inference against the prosecution but the effect and legality of the judgment as borne out by its very contents can be taken into consideration without conducting its analysis. As contended by the learned counsel for the petitioners from the judgment impugned it is clear that the motive for the commission of the offence was weak, the weapons of offence could not ' be recovered from the petitioners, and the deceased was involved in a number of criminal cases.
Reference to these facts and circumstances does not amount to deeper appreciation of evidence because the same are available on the face of the impugned judgment and have also been found out and relied upon by the learned trial Court in its findings. The facts and circumstances of the cited judgments, namely, Muhammad Arshad v. The State (2006 PCr.LJ 1568 Lahore) and Khalil-ur- Rahman v. Muhammad Afzal and another (1998 SCM R 523) are on all fours to the case of the petitioners. They are, therefore, entitled to be released on bail by the suspension of the sentence against them. l2. For what has been discussed above, the petition, is accepted and the sentence awarded to the petitioners is suspended. They are directed to be released on bail subject to their furnishing bail bonds in the sum of Rs, 100,000 each with one surety each in the like amount to the satisfaction of the Deputy Registrar (Judl.) of this Court. They shall also keep on appearing before this Court on each and every date of hearing till the final disposal of the main appeal.