Tnrough this Application under Section 426, Cr.P.C. the Appellants seek bail during pendency of aforementioned Appeal. The Appellants were tried for the offences under Sections 397, 452, 337- A(i), (ii), (iii), 337-F(vi) and 337-L (ii), PPC and vide impugned judgment were convicted by the trial Court as under:-- Under Section 452, PPC to suffer RI for seven years and pay fine of Rs,50,000/-each and in default of payment of fine to suffer three years SI; Under Section 337-A(i), PPC to suffer two years RI and pay Daman of Rs,50,000/- each to the victim Sher Muhammad or in default of payment of Daman to further suffer one year SI; Under Section 337-A(ii), PPC to suffer RI for five years; Under Section 337-A(iii), PPC to suffer RI for seven years; Under Section 337-L(ii), PPC Daman of Rs,50,000/- each to be paid to victim Haji Arbab Ali or in default to suffer SI for three years; and Under Section 337-F(vi), PPC to suffer RI for seven years and Daman of Rs,50,000/- each to be paid to victim Amir Hasan or in default to suffer SI for. three years;
2. It was, inter alia, contended by the learned Counsel for the Appellants that both the parties were inimical to each other as there was dispute over agricultural land and litigation in respect thereof was also pending in the Court; all the prosecution witnesses were inimical and interested witnesses, therefore, their testimony without corroboration by independent evidence could not be made basis of impugned conviction; there was general allegations against Appellant Mukhtar Ali and no specific role was attributed to him; and the reasoning of the trial Court on Point No, 2 reflects that neither any case property nor mobile number/SIM belonging to the complainant party was recovered and therefore, the trial Court absolved the Appellants of the charge of dacoity/robbery. According to the learned Counsel, in view of finding of the trial Court once neither dacoity nor robbery was proved against the Appellants, they could not be convicted under Section 452, PPC and if sentence awarded under Section 452, PPC is excluded, the Appellants at the most could be awarded much lesser sentence or were directed to pay Daman to the victims. In support of his contention, the learned Counsel has placed reliance on the case of Mukaram-ul-Haq v.
National Accountability Bureau (2006 SCM R 1225), case of Shamshad Hussain u. Gulraiz Akhtar (PLD 2007 SC 564), and case of Abdul Rehman v. State (2008 SCM R 1381).
3. Conversely, the learned APG and Mr. M. A. Kazi, learned Counsel for complainant contended that prosecution has successfully proved its case through testimony of four PWs whose evidence were further corroborated by medical evidence and the Appellants do not deserve the, benefit of Section 426, Cr.P.C.
4. Heard learned Counsel for the parties and perused material available on record. Undoubtedly the instant Application pertains to suspension of sentence during pendency of Appeal and at this stage as well deeper appreciation of evidence available on record cannot be undertaken and only tentative assessm ent of evidence can be made. From the depositions of all the prosecution witnesses it appears that at the time of the occurrence Appellant Mumtaz Ali was armed with Lathi while Appellant Lutuf Ali was armed with hatchet. From the perusal of depositions of the prosecution witnesses it appears that specific roles were assigned to accused Lal Muhammad, Mandhal, Lutuf Ali and Muhammad Ismail while the remaining accused persons gave hatchet and lathi blows to Haji Arbab and Amir Hassan. Moreover, once the trial Court after recording evidence and bringing all the relevant material on record has concluded that neither dacoity nor robbery is committed by the accused/appellants, no conviction could be awarded under Section 452, PPC. Be that as it may, since no specific role was attributed to Appellant Mumtaz Ali, the instant Application is partly allowed and dismissed to the extent of suspension of sentence awarded to Appellant Lutuf Ali, whom specific role was assigned. Even otherwise, admittedly Appellant Mumtaz Ali during trial remained on bail.
5. The Honourable Supreme Court in the case of Mukaram-ulHaq v. NAB reported in 2006 SCM R 1225, at Page No, 1229 in Paragraph No, 6, has observed as follows:-- "6. We are conscious of the fact that in heinous offence where sentence of life imprisonment or 14 years RI has been awarded the question of suspension of sentence does not arise subject to certain exceptions but it must not be lost sight of that proper case even the bail can be granted where the sentence of death or life imprisonment has been awarded."
6. There is yet another aspect of the case that a counter case bearing Crime No, 6/2010 of PS Chhor was registered against the 'complainant party by Mir Hasan Samejo, in which case the trial Court has acquitted the complainant party and same Judgment has been assailed through a criminal acquittal appeal, which is admitted for regular hearing by this Court. Learned Counsel for the complainant has contended that it would be proper if both the Appeals are heard together.
Keeping in view the heavy backlog of cases there are remote chances that the instant Appeal would be heard and decided in near future.
7. In the given circumstances, this Application is allowed to the extent of Appellant Mumtaz All only.
Consequently, conviction and sentence awarded to Appellant Mumtaz Ali is suspended and he shall be released on bail subject to furnishing solvent surety in the sum of Rs, 100,000/- (Rupees one hundred thousand only) and PR bond in the like amount to the satisfaction of the Nazir of this Court.
8. Before parting with this order, it is clarified that the above observations are tentative in nature and only for limited purpose of deciding the Application under Section 426, Cr.P.C.