1. Through the supra titled petition, the convict-petitioner seeks suspension of the sentence and grant of bail under Section 426, Cr.P.C.
2. The precise facts forming the background of instant petition are that an F.I.R was lodged at police post Sirsawa on 19.4.2004 at 12:40 a.m. alleging therein that at 6:00 p.m. accused, Muhammad Ismail launched an attack upon him with a stick while the complainant was present in his Courtyard. The accused inflicted injuries with stick upon his left arm and leg. Altaf, his nephew, intervened and forbade the accused but Muhammad Ismail, accused, inflicted an injury with the stick upon his head with the intention to do away with his life. When Altaf fell down after sustaining injury, accused started kicking him. On the hue and cry of his wife, Mst. Suffia Begum and his daughter, Shazia, Ghulam Subhani and Shahraiz arrived at the spot and witnessed the occurrence.
3. The accused fled away from the scene of occurrence while hurling abuses. Altaf became unconscious on the spot, who succumbed to the injuries on the way to police post.
4. The motive behind the occurrence has been stated to be a land dispute.
5. The aforesaid report was sent to Police Station Kotli, where a Case No, 100/2004 was registered on 19.4.2004 at 2:00 a.m.
6. After completion of the trial, the accused was convicted and sentenced to 14 years R.I. alongwith Diyat in tune of rupees eight lac under Section 316, APC, one year R.I. alongwith rupees five thousand Daman under Section 337-F(1) and one year R.I. under Section 448, APC. In default of payment of Diyat and Daman, the convict-appellant was ordered to remain in jail. All the sentences were ordered to run concurrently and benefit of Section 382-B, Cr.P.0 was also extended in favour of the convict-petitioner by Additional District Criminal Court Kotli vide its judgment dated 31.7.2007. The aforesaid judgment has been challenged in appeal before this Court alongwith the above titled application for suspension of sentence, which is the subject matter of this judgment.
7. Arguing on behalf of convict-petitioner, Malik Muhammad Saleem, Advocate, submitted that the trial Court has fell in grave error while holding that under Section 316, APC the person committing 'gall-shibh-i-amd' Can be punished with imprisonment for 25 years as `Tazir' alongwith the punishment of Diyat. According to learned Counsel, if the trial Court would have considered that the sentence of 14 years alongwith Tazir' has been provided under Section 316, APC then the trial Court would have punished the accused for 3/4 years only. The learned Counsel pointed out that the trial Court has also extended the benefit of Section 382-B, Cr.P.0 to the convict-petitioner who has already undergone the sentence of four years and seven months; therefore, the convict- petitioner has to undergo the sentence of nine years and four months only and in this manner his case is not hit by prohibitory clause of Section 497, Cr.P.C. The learned Counsel contended that the place of occurrence is almost different in the light of challan report filed under Section 173, Cr.P.0 as pointed out in the F.I.R, but the trial Court miserably failed to appreciate the material contradictions and infirmities. The learned Counsel maintained that four eye-witnesses were nominated in the F.I.R, but none of them was produced before the trial Court. The learned Counsel laid great stress upon the point that Shahraiz (P.W.4) and Ghulam Subhani (P.W.5) were impartial witnesses, but the prosecution abandoned their evidence on the ground that they are interested in acquittal of the accused-petitioner. The learned Counsel pressed into service the submission that the name of the father of Mst. Shazia (P.W.2) has been recorded as Muhammad Ibrahim in column five of challan report whereas she is daughter of Muhammad Willayat, the complainant, in spite of that her statement does not support the prosecution version; therefore, the evidence of eye-witnesses is not sufficient to implicate the accused with the commission of offence. The learned Counsel went on arguing that in the light of postmortem report the time of death has not been determined; therefore, the medical evidence does not corroborate the prosecution story. The learned Counsel finally submitted that the convict-petitioner is 80 years old; therefore, the operation of the impugned judgment may be placed under suspension and he may be released on bail. In support of the arguments, the learned Counsel relied upon an unreported judgment of Apex Court titled Muhammad Javaid V. Tehzib & others (Crl. Appeal No, 61/2006 decided on 7.1.2008).
8. Controverting the arguments raised by the learned Counsel for the convict-petitioner, Mirza Abdul Aziz Ratalvi, the learned Counsel for the complainant submitted that Section 316, APC has been amended by Section 9 of the Criminal Law (Amendment) Act, 2004 and the sentence of 25 years has been provided as `Tazir' under Section 316, APC. The learned Counsel pointed out that the aforementioned amendment has also been adopted in Azad Jammu & Kashmir; therefore, the trial Court has rightly held that under Section 316, APC alongwith sentence of Diyat, the sentence of 25 years can also be awarded to an accused as `Tazir'. The learned Counsel further argued that the Court while deciding an application for suspension of sentence cannot enter into deep appreciation of the merits of the case; however, no contradiction appears in F.I.R and challan report filed under Section 173, Cr.P.C. The learned Counsel also maintained that Mst. Shazia is stepdaughter of the complainant and this matter has also been resolved by the trial Court; therefore, the aforesaid fact is not sufficient to brush aside the impugned judgment. The learned Counsel stressed upon the point that-Shahraiz and Ghulam Subhani arrived at the spot after the occurrence; therefore, they are not eye-witnesses, but their non-production does not affect the prosecution case. However, the defense also failed to produce them in support of its version. The learned Counsel pressed into service the submission that the non-recording of time in the postmortem report is just an inadvertence, which does not demolish the prosecution story, otherwise postmortem report has been recorded in detail and in the light of suggestions put to the defense, the occurrence has been admitted by the convict-petitioner. The learned Counsel vehemently argued that during the examination of accused under Section 342, Cr.P.C. the petitioner has stated his age about 71 years, but the ground of old age has not been pressed in the instant petition; therefore, the aforesaid argument of old age is not available to the petitioner. The learned Counsel further pointed out that the petitioner has not pleaded the suspension of the sentence of Diyat; therefore, the petition cannot be allowed. The learned Counsel zealously agitated that the complainant has also filed an appeal for enhancement of the sentence and in the light of impugned judgment, the convict-petitioner has to undergo a sentence of 9 years and 6 months; therefore, he is not entitled to the discretionary relief; thus, the petition may be dismissed.
9. In support of arguments, reliance was placed upon 2004 P Cr. L J SC AJK 956. Raja Khurshid Ahmad, the learned Assistant Advocate General, appearing on behalf of the State opposed the petition for suspension of sentence and fully owned the arguments raised by the learned Counsel for the complainant. I have carefully taken into consideration the points canvassed by the learned Counsel for the parties, after perusing the record made available with care. It is admitted on the record that the petitioner has been convicted in a murder case; therefore, he loses the initial presumption of innocence and normally the sentence awarded to an accused in murder case is not suspended simply on the ground that the prosecution evidence requires deep appraisal. It will be relevant to point out that the appreciation of evidence or deep scrutiny of the merits of the case is neither advisable nor admissible at this stage. It is also an admitted position of law that in case an offence under Section 316, APC is proved, the accused can also be punished with imprisonment of a term which may extend to 25 years as Tazir' alongwith the sentence of Diyat; therefore, I cannot subscribe to the view of the learned Counsel for the petitioner that if the trial Court would have considered that sentence of 14 years has been provided under Section 316, APC then the trial Court would have punished the accused for 3 to 4 years only. The Courts do not decide the cases on the basis of surmises and conjectures rather in the light of evidence on the record. It is further admitted on the record that convict-petitioner has to undergo remaining sentence of 9 years and 6 months after deducting the period of sentence already undergone by him, computing the benefit provided by Section 382-B, Cr.P.C.
10. It may be stated here that at this stage contention of the learned Counsel is devoid of any force that the case of petitioner is not hit by prohibitory clause of Section 497, Cr.P.C. It also needs to be emphasized that in the light of examination of the accused recorded under Section 342, Cr.P.C., the petitioner is 70 years old; therefore, at the moment, according to him, his age is 71 years, but the aforesaid ground of old age has not been pleaded in the instant petition for suspension of sentence and grant of bail. Even otherwise old age per se is not sufficient to furnish a valid ground for suspension of the sentence of a conviction-petitioner.
11. Coming to the instant case, the prosecution case has been held proved by the trial Court and there is prima facie ocular and corroboratory evidence against him. The argument whether the prosecution evidence was rightly appraised and appreciated by the trial Court or not, can be taken into consideration only at the time of disposal of appeal and not at this stage. The objection of the learned Counsel with regard to the contradiction about the place of occurrence has also been dealt with by the trial Court and it has been held that firstly the petitioner entered into the Courtyard of the complainant and thereafter when the deceased ran away to the backside of the house, the accused again launched attack upon him and inflicted several injuries; therefore, according to the trial Court, the place of occurrence has been proved, the Courtyard of the complainant. Similarly, the question about parentage of Mst. Shazia (P.W.2) is concerned, has also been tackled by the trial Court in the manner that the complainant is his stepfather.
12. So far as the argument about giving up the other prosecution witnesses or the absence of time on the postmortem report is concerned, cannot be considered for releasing the convict-petitioner on bail at this stage. A deep appraisal of the prosecution evidence and surrounding circumstances shall be considered only at the time of disposal of appeal by this Court because it may prejudice the case of either party beforehand.
13. It has been opined by Superior Court for time and again that bail after conviction, especially in a murder case, is real phenomena which should only be resorted to in exceptional circumstances and not as a matter of routine. In this regard, a case titled Ahmad Din & 2 others V. Muhammad Tazeem & another (2004 PCr.LJ SC AJK 956) can be referred to, wherein this Court suspended the sentence of 11 years R.I. and allowed bail to the convict-petitioner, but the concession of bail was recalled by the Apex Court.
14. As far as an unreported judgment of Apex Court of AJ&K titled Muhammad Javaid V. Tehzib & another (Criminal Appeal No, 61/2006 decided on 7.1.2008) cited by the learned Counsel for the petitioner is concerned, is beyond the controversial issue and have nothing common with the facts of the present case. In the aforesaid case, the concession of bail was recalled to the extent of Tehzib and Siddique convict-respondents and was only maintained to the extent of convict- respondents who were not alleged to launch an attack upon the deceased. They were ascribed to be a member of unlawful assembly, who inflicted injuries to the complainant and prosecution witnesses only.
15. For the foregoing reasons, finding no force in this petition, it is hereby dismissed.