Criminal Miscellaneous No.Lof 2012 ' MAZHAR IQBAL SIDHU, J.---Muhammad Yaqoob and Muhammad Afzal petitioners/appellants as being pro-convict to have filed an appeal under section 410, Cr.P.C. Wherein they have also submitted an application under section 426, Cr.P.C. To seeks suspension of execution of sentences inflicted upon them by the learned trial Court.
2. Learned counsel for the petitioners submits that according to allegations Muhammad Yaqoob and Muhammad Afzal petitioners made fire shots with their respective firearms weapon at Shabbir Hussain on his right upper arm whereas post mortem report shows a single skin injury there; by specificity the said injury cannot be attributed to either of them and more so the same has not been declared contributive cause of deatti of the deceased. Further submits that doctor in his statement has categorically admitted that Injury No.3 is exit of Injury No.2, in this way, for all practical purposes the solitary injury is available on the left upper arm of the deceased. Further maintained that during investigation, both of them were found innocent and no weapon of offence was recovered from either of them and every probability exists for the acceptance of appeal and petitioners deserve to be granted bail by suspending their quantum of sentences.
3. Learned D.P.-G. Assisted by learned counsel for complainant has phlegmatically opposed the submissions and has argued that at this stage, arguments of learned counsel for the petitioners are not tenable and amenable to the settled principles of law; learned trial Court has drawn a right conclusion against the petitioners; in the recent past, impugned judgment has been handed down and it would be, too, .Early to accept instant application and has thus craved for dismissal of the same.
4. Arguments have been heard. Judgment has also been gone through.
5. According to prosecution's allegations, Muhammad Yaqoob petitioner was holding 'Mauzar' at the time occurrence whereas no specific kind of weapon has been shown allegedly held by Muhammad Afzal petitioner/convict. Firstly, co-convict Javaid made a fire shot with his pistol on Shabbir Hussain hitting on right side of his, face and thereafter both the petitioners/appellants made fire shots with their respective weapons hitting on left upper arm of the deceased. Through impugned judgment, it has been noticed that injury No.3 is attributed to both the petitioners and it would be lucrative for better understanding to jot down the text of injury as follows:-
(3) Lacerated wound 1.5 cm x 1 cm skin deep on upper lateral part of left- arm, blackening around the wound is present, bullet entered through this wound and left 4 cm normal space down side and produced another lacerated would 1.5 cm x 1 cm on left lateral part of left upper arm 4 cm below the injury No.3, blackening around this wound is also present. This wound is also a skin deep and bullet exited out after producing this wound.
' The doctor who performed post mortem examination, during cross-examination has categorically admitted that Injury No.3 is singular one. Record even on being explored does not persuade Court that by whom amongst these two petitioners, this injury was caused to the deceased. During investigation, the petitioners were found innocent and being so, the complainant being aggrieved of the outcome of the investigation filed a private criminal complaint and on its conclusion impugned judgment has been handed down. The court is mindful that in the recent past, the impugned judgment has been delivered but the point is that whether material available on the record justifies acceptance of instant application, the answer is in affirmative. The Hon'ble Supreme Court of Pakistan as well as this court has held in so many precedents that at the time of deciding an application under section 426, B Cr.P.C. The principles enumerated for the grant of bail under section 497, Cr.P.C. May be considered. When the accusation alleged against the petitioners is nebulous and gloomy, then of course, benefit of the same has to be extended in their favour as it is the cardinal principle 'of Criminal administration of justice.
6. Tout ensemble of the above discussion is that the petitioners/appellants have succeeded in obtaining the concession sought for by them, therefore, instant petition is allowed. Resultantly, quantum of sentences imposed upon them are suspended till final decision of instant appeal and they are directed to be released on bail provided their furnishing bail bonds in the sum of Rs.2,00,000 (two lacs) each with two sureties each in the like amount to the satisfaction of DR (Judi) of this court. Both are warned to be incessant in appearing before this court till final decision of instant appeal.