' Through the present petition under section 426, Cr.P.C. Hafiz Tanveer petitioner seeks suspension of the sentence awarded to him by the learned Additional Sessions Judge, Kharian in case F.I.R.
No,371 dated 11-12-2006, registered under section 302/34 P.P.C. At Police Station Kakarali District Gujrat, who vide judgment dated 6-1-2009 convicted the petitioner and his co-accused under section 302(b)/34, P.P.C. And sentenced him to death with direction to pay Rs,10,00,000 to the legal heirs of the deceased Intizar Ahmad as compensation under section 544-A, Cr.P.C. Or in default thereof to undergo six months' S.I.
2. Learned counsel for the petitioner contends that there was no ocular account of the occurrence and the prosecution evidence rested upon the circumstantial evidence furnished by Liaqat Ali P.W.7 who did not utter a single word that the petitioner and other accused had been seen lastly with the deceased, but he had only stated that the petitioner and other convicts had been seen while running nearby the place of incident while armed with different weapons and this was the whole piece of evidence against the petitioner; that the extra-judicial confession has not been made by the petitioner and the motive was also attributable to Saifullah co-convict only, but in spite of that the petitioner has been convicted and sentenced to death on the basis of no evidence, who may be released on bail. Reliance has been placed on Fazal Rahim vs. The State (PLD 2004 Lahore 266) to contend that this Court has the power to suspend the sentence of death of a convict under section 426 Cr.P.C.
3. On the other hand the learned counsel for the complainant has opposed this application and contends that the petitioner remained fugitive from law for ten months; that apart from the evidence of Vajtakkar, Saifullah co-convict of the petitioner had made extra judicial confession before Bashir Ahmad P.W.5 while Muhammad Alam co-convict had made extra judicial confession before Muhammad Sarwar P.W.6 wherein he had mentioned the name of petitioner as one of the participants of the occurrence; that during the trial the petitioner was not released on bail and death sentence has been rightly imposed upon the petitioner, who was also involved in number of criminal cases and not entitled for the concession of bail.
4. Learned D.P.G. While supplementing the arguments of the learned counsel for the complainant contends that the complainant had no grudge to falsely implicate the present petitioner in the instant case and this application may be dismissed.
5. We have heard the learned counsel for the parties and also perused the impugned judgment. It is an admitted fact the F.I.R was got lodged against the unknown accused and there was no ocular account of the occurrence, but the prosecution case rested upon the circumstantial evidence only.
The only evidence against the petitioner as per Para 19 of the judgment is as under;- "P.W.8. Liaqat Ali son of Nazir Ahmad allegedly an eyewitness of last seen evidence, who while appearing in the Court narrated that on 11-12-2006 he came to village Bhaddar in the house of Tanveer Ahmed who is husband of Mst. Sajida Parveen his Khalazad for the purpose to go to Rawalpindi. He along with Bashir Ahmad stayed in village Bhaddar in the house of Tanveer Ahmad for the night. At about 5 a.m. He and Bashir Ahmad came out of the house of Tanveer Ahmad to proceed to Rawalpindi in connection with an urgent piece of work. When they reached near the house of Sher Ali Butt, they saw that from the western side the accused Saifullah armed with Kalashinkov, Muhammad Alam alias Goga armed with pump action .12 bore and Hafiz Tanveer armed with .12 bore pump action, were previously known to him, came running to them. He asked the accused the reason for their running but did not disclose to him the reason for doing so. There was a residence at a distance of about 50 Karms belonging to Amjad brother of accused Saifullah and the accused entered into that residence. As they were to arrive at Rawalpindi soon, so they proceeded from that place. On the same day at about 5.30 p.m. When they reached village Bhaddar, returned from Rawalpindi, they learnt that Intazar Ahmad had been murdered. They narrated the incident, they had seen as mentioned above to the complainant.
From the above portion it can be gathered that at the most P.W.8 was the witness of Vajtakkar and it has been held in 2003 SCMR 477 that without any ocular evidence, no importance can be attached to evidence of Vajtakkar.
6. It is also admitted that the petitioner had not made extra-judicial confession before any witness and the motive was also not attributable to the petitioner. Moreover, the recovery of weapon from him was legally inconsequential as there was no positive report about the empties recovered from the spot by the Forensic Science Laboratory. It has been held by the august Supreme Court in 2007 SCMR 246 that the sentence under section 426 Cr.P.0 cannot be suspended unless shown that it is based on no evidence and there is no ultimate possibility of conviction of a person to sustain.
7. The learned counsel appearing on behalf of the complainant or the learned Law Officer have failed to point out any other evidence from the record to connect the petitioner with the alleged crime. The tentative assessm ent of evidence on the basis of which finding of guilt is given is not debarred while considering the application for suspension of sentence under section 426, Cr.P.C.
The case-law reported in 1994 PCr.LJ 1516(DB) is referred. Whether on the basis of evidence of Vajtakkar only, the conviction and sentence of the petitioner can be maintained is a question to be determined by this Court, but for the time being there is no likelihood of hearing of the main appeal in the near future and if the petitioner is acquitted ultimately, the period served by him in jail will not be compensated in any manner, who cannot be kept behind the bars for indefinite period merely on the basis of the evidence led by P.W.8 referred above. This petition cannot be disallowed only on the ground that the petitioner has been sentenced to death as firstly the courts nave to see the evidence in support of the allegation and also to determine that whether the same can be held sufficient to prima facie connect the accused with the alleged offence. This Court can suspend the sentence of death if the conviction is not based on cogent evidence and there is likelihood of acquittal of the appellant after the final hearing. In such circumstances, we find it a fit case for suspension of sentence of the petitioner. This petition is accordingly allowed and the sentence of the petitioner is suspended subject to his furnishing bail in the sum of Rs1,00,000/-with two sureties each in the like amount to the satisfaction of the trial Court.