' SALAHUDDIN PANHWAR, J.---Through instant application, appellant Ali. Ghulam seeks suspension of sentence recorded through impugned judgment dated 10th April 2013; passed in S.C. No,268 of 2011, under sections 302, 324, 114, 34 P.P.C.
2. Precisely, relevant facts are that complainant received information that his brother's dead body is lying in Civil Hospital, Badin, he rushed there, where Abdul Hakeem and Ahmed disclosed that they all three were standing at Khoski Bus Stop in Badin town; at about 1-30 p.m. Ali Ghulam (appellant), Mehbood Ali alias Bhooro (absconder) and Ashfaque Ali (absconder) came on motorcycle; due to dispute over abduction of one girl, accused Ali Ghulam instigated them not to spare Malook and kill him, on his instigation both accused Mehboob Ali armed with pistol caused direct pistol shot on Malook, on receiving such fatal below, he fell down and subsequently succumbed to the injuries.
3. During investigation appellant was arrested and sent up for trial, albeit remaining accused remained absconders; after full-fledged trial, appellant was convicted by the trial Court for life imprisonment whereafter, he preferred appeal on 29-4-2013, same was admitted for regular hearing.
4. Learned counsel for the appellant instead of arguing the main appeal insists that application under section 426, Cr.P.C. Shall be heard as there is no iota of evidence against the appellant except allegation of instigation, therefore, operation of impugned judgment may be suspended. In support of his contentions, he has relied upon the cases of 'Muhammad Nawaz and others v. The State' reported in (1994 PCr.LJ 984), 'Muhammad. Yasin v. The State and another' (2007 M LD 1066), 'Jamshed All and another v. The State' (PLD 2008 Lahore 306), 'Siraj Din and another v. The State'
(2008 M LD 515), 'Azmatullah v. The State and another' (2011 SCM R 1935), Ghulam Mujtaba Qadri v.
The State and others' (2012 SCM R 662) and 'Shah Nawaz and another v. The State' (2014 PCr.LJ 921).
5. Conversely, learned D.P.G. While refuting the above contentions contends that sufficient evidence was brought on record during the trial; appellant has played active role while committing the murder of deceased, it is matter of record that he instigated the main assailant and case is at the stage of final hearing; this Court only can make tentative assessment while deciding application under section 426, Cr.P.C. And deeper appreciation is not permissible at this stage.
6. Heard learned counsel for the appellant as well as learned D.P.G, appearing on behalf of the State and perused the record.
7. While careful consideration of the contentions raised by learned counsel for respective parties and meticulously examination of available record. It is surfaced that instant appeal is fixed for regular hearing and it was being adjourned from date to date on the request of counsel for the appellant as he was seeking time for preparation. Subsequently, Mr. Altaf Hussain Khokhar advocate filed Vakalatnama on 26-3-2014 and he emphasizes that it will be in the interest of justice to hear application under section 426, Cr.P.C. Mainly on the ground that except allegation of instigation there is no speck of evidence against the appellant; he has relied upon a plethora of cases.
8. There can be no cavil to deny the legally established principle of law that in criminal administration of justice each and every case is to be decided on its own peculiar facts and circumstances, therefore, it is not necessary to make reliance on other case-laws with reference to their own peculiar facts, however, principle(s), laid down by the superior Courts having legal standing in terms of stare decisis, can well be considered. Further, it is worth to mention that powers under section 426, Cr.P.C. Are not wider than powers under section 497, Cr.P.C. Couple with saying that deeper appreciation is not permissible under the law, while suspending the sentence.
In the case of suspension of sentence, only tentative assessment of available evidence and of judgment is permissible and detailed appraisal thereof is to be avoided. Reliance can safely be placed on the case of 'Mazhar Ahmed v. The State', reported as 2012 SCM R 997.
9. It is a matter of record that the appellant has been convicted to life imprisonment for his involvement in the offence of murder on the basis of sharing common intention with principal accused. The prima facie evidence available against the appellant has been that he happened to be maternal uncle of other assailants and he, in their company (absconding accused persons), undertook the journey from his home to bus stop Khoski on motorcycle, where main assailants caused murder of deceased Malook Mallah at his (appellant) instigation, therefore, applicability of section 34 P.P.C., at this stage cannot be ruled out nor it would be legally justified to dive deep to take up such plea as it would require to be taken at the time of deciding the appeal. Such approach is not permissible for simple reason that it may result in prejudicing the case of either side (s). It would be relevant to refer the relevant portion of the judgment, passed by honourable Supreme court of Pakistan in the case of 'Babar Ali v. Bashir Ahmed' (2007 SCMR 185) which reads as under:-- "The observation of the High Court that the case requires further inquiry for determination whether the offence committed by Bashir Ahmed would be covered by section 429, P.P.C. Or it would also fall within the scope of section 302, P.P.C., at the bail stage, in our view amounts to giving undue benefit to respondent Bashir Ahmed which is likely to adversely affect the prosecution case during the proceedings of appeal before the High Court. It is a settled principle that in granting bail or suspending the sentenced awarded to a convict the Court is not required to express opinion as to under what provision of law the convict would likely be found guilty or whether the case does not come within the scope of a particular section. Besides, from the evidence produced by the prosecution it stands established that respondent Bashir Ahmed duly armed with a Kalashnikov had come to the scene of incident along with the principal accused and fired a burst from his Kalashnikov at the deceased and the cow which conduct and action of respondent Bashir Ahmed was considered by the trial Court to establish that he shared common intention with principal accused for causing death of the deceased"
10. Besides above, the learned counsel, even, has failed to point any patent illegality in the judgment, so recorded by the learned Trial Court judge, which, if so established, will be a ground to suspend the operation of a conviction. Hence, instant application is devoid of merits, thus same is dismissed. Learned counsel for the appellant is hereby directed that he shall proceed with the main appeal.