' ABDUL SAMI KHAN, J. --- The petitioner, namely, Abid Hussain was tried alongwith his co-convict in case FIR No,. 87, dated 22.03.2006 registered under sections 302, 324, 148, 149, PPC at Police Station, Saddar Bhakkar. After conclusion of the trial the learned Additional Sessions Judge-I, Bhakkar vide his judgment dated 31.05.2012 convicted the petitioner under section 302(b), PPC and sentenced him to undergo imprisonment for life as Tazir. He was also directed to pay compensation of Rs, 5,00,000/- to the legal heirs of the deceased as required under section 544-A, Cr.P.C. And in case of default to further undergo S.I. For six months. He was also convicted under section 427, PPC and sentenced him to undergo R.I. For two years with fine of Rs, 50,000/- and in default thereof undergo S.I. For three months. Benefit of section 382-B, Cr.P.C. Was also extended to him. Feeling aggrieved of the said judgment, he preferred Crl. Appeal No,. 239-J of 2012 and during the pendency of the appeal he has filed the instant petition for suspension of his sentence.
2. Learned counsel for the petitioner has contended that no crime empty was recovered from the place of occurrence; that the sentence awarded to the co-convicts namely, Habib Ullah and Muhammad Ramzan has been suspended by this Court vide order dated 23.04.2013; that the case of the petitioner is at par with that of coconyricts whose sentence has been suspended, therefore, the petitioner is also entitled to the same relief on principle of consistency; that the injury as described in the FIR is not reflected through medico-legal report as injury No,. 12 on the back of the deceased Ghulam Hussain is exit wound; that the corresponding entry wound is injury No,. 11, is on the left side of abdomen, which is not ascribed to the petitioner and benefit of such contradiction can be extended even at the stage of suspension of sentence.
3. Conversely, the learned D.P.G. Assisted by the learned counsel for the complainant has vehemently opposed the prayer for suspension of sentence by submitting that the case of co- convicts Muhammad Ramzan and Habib-Ullah is not at par with that of the petitioner as they have not been described the specific role as to the receipt of the injuries; that the Trial Court has rightly convicted and sentenced the petitioner to undergo imprisonment for life under section 302(b), PPC as ta'zir and upon firing on the abdomen of deceased Ghulam Hussain; that the arguments advanced by the learned counsel for the petitioner touch the merits of the case, which are not permissible at this stage; that the complainant has already filed a criminal revision for enhancement of sentence, hence prays for dismissal of this petition.
4. We have heard the learned counsel for the parties and perused the record.
5. The Trial Court at page 26 of the judgment has found the petitioner to have caused injuries No,. 11 & 12 upon deceased Ghulam Hussain which are described as under:-
(11) A fire-arm wound of entry 3 x 2 c.m. On the left side of abdomen 5 c.m from umbilicus within an area of blackening 5 x 2 c.m. Around it.
(12) Multiple wound of exit in an area of 14 x 11 cm on the lower back of both the side of midline 6 cm above tip of coccyx.
6 . The injury No,. 12 which is exit wound is ascribed to the petitioner as injury No,. 11 is the corresponding entry wound. However, the allegation against the petitioner is that he had fired shot on the back of the deceased Ghulam Hussain and not at the left side of the abdomen. The said injury does not appear to be a result of an independent fire. He has not stately repeated the fire.
Benefit of such a contradiction between the ocular account and medical evidence can be extended to the petitioner even at the stage of suspension of sentence. Vicarious liability of the petitioner will be determined at the time of hearing of the appeal as mere filing of revision petition for enhancement of sentence is not enough to with-hold the suspension of sentence if made out otherwise.
7. Keeping in view the circumstances, we allow this petition, suspend the sentence of the petitioner and admit him to bail subject to his furnishing bail bonds in the sum of Rs, 2,00,000/- with two sureties each in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court.
The petitioner is further directed to appear before this Court on each and every date of hearing till the final disposal of main appeal.