' Criminal Miscellaneous No,1 of 2009 ' ASIF SAEED KHAN KHOSA, J.---Through this miscellaneous petition Muhammad Khan and Muhammad Ayub petitioners-appellants have sought suspension of their sentences and release on bail during the pendency of their appeal before this Court.
2. After hearing the learned counsel for the parties and going through the judgment passed by the learned trial Court it has been observed by me that Muhammad Khan petitioner had allegedly raised a lalkara and had then indulged in ineffective firing. It is not disputed that the said petitioner had not caused any injury to any person during the entire incident and nothing had been recovered from his possession during the investigation of this case by the police. As regards Muhammad Ayub petitioner he had allegedly taken Manzoor Hussain deceased in his clasp before he was fired at fatally at his head by the petitioner's co-convict namely Muhammad Amjad alias Shakoor. Prima facie it was quite unbelievable that if one accused person were to use his firearm for causing an injury on the head of the victim then another accused person would hold the victim in his clasp and render himself vulnerable to a serious fire-arm injury.
3. Both the petitioners had not caused any injury to any person during the entire incident. It is admitted at all hands that civil litigation was pending between the parties prior to the present incident and, thus, a possibility regarding spreading the net wide by the complainant party so as to falsely entangle the present petitioners has appeared to me to be a possibility which cannot safely be ruled out of consideration at this stage. The petitioners had remained on bail during their trial and no allegation had ever been levelled against them regarding misuse or abuse of the said concession.
4. It has pertinently been noticed by me that after finding the petitioners guilty the learned Additional Sessions Judge, Pasroor, District Sialkot (Mr. Ali Dastgir Syed) had proceeded to convict the petitioners for an offence under section 302, P.P.C. Without specifying as to whether the case against the petitioners attracted clause (a), clause (b) or clause (c) of section 302, P.P.C. It has further been noticed by me, and rather alarmingly that the learned trial Court had proceeded to sentence the petitioners to rigorous imprisonment for five years each and a fine of Rs,25,000 each or in default of payment thereof to undergo simple imprisonment for three months each. A sentence of five years' rigorous imprisonment is not contemplated by clauses (a) and (b) of section 302, P.P.C. And the learned trial Court had not found this case to be one attracting clause
(c) of section 302, P.P.C. Apparently the case in hand was one falling under section 302(b), P.P.C.
Which carries only two sentences, i,e, death or imprisonment for life. It is also quite noticeable that the learned trial Court had passed a sentence of fine against the present petitioners whereas the punishments specified in clauses (a), (b) or (c) of section 302, P.P.C. Do not include any sentence of fine. It is, thus, evident that the sentences passed by the learned trial Court against the petitioners were not lawful, to say the least. My learned brother Tariq Shamim, J. While seized of the present miscellaneous petition on the last date of hearing, i,e, 28-7-2009 had required the learned Presiding Officer of the trial Court namely Mr. Ali Dastgir Syed to attend this Court in person and to explain "as to how and under what circumstances he has convicted and sentenced petitioners Muhammad Khan and Muhammad Ayub to five years' R.I. Each under section 302, P.P.C." The said Presiding Officer has attended this Court in person today and instead of tendering apology for the mistake and feeling sorry for the same he has tried to defend the above mentioned sentences passed by him. I am disappointed by his approach and conduct. Mr. Ali Dastgir Syed is a senior judicial officer who has already put in a number of years as a Judge. He is advised to be very careful in this regard in future.
5. For what has been discussed above this miscellaneous petition is allowed, the sentences passed by the learned trial Court against Muhammad Khan and Muhammad Ayub petitioners are suspended and they are admitted to bail subject to furnishing bail bonds in the sum of Rs,50,000 (Rupees fifty thousand only) each with two sureties each in the like amount to the satisfaction of the learned trial Court/Duty Judge.
6. The Registrar of this Court is directed to place a copy of this order on the service file of Mr. Ali Dastgir Syed, Additional Sessions Judge, Pasroor, District Sialkot.