' SLALHUDDIN PANHWAR, J.---Through the instant application under section 426 Cr.P.C. The appellants/convicts have sought suspension of their conviction pending disposal of appeal which has been passed by the learned Sessions Judge, Badin vide judgment dated 13-10-2012 whereby both the appellants have been sentenced to suffer life imprisonment and to pay Rs.100,000 each as compensation to be paid to L.Rs. Of deceased Mohammad Bachal.
2. The facts of prosecution case in nutshell are that complainant Ghulam Shabbir Chandio lodged the F.I.R. With Police Station Kario Ganhwer; alleging therein that "on 7-4-2011 complainant, his brother Mohammad Bachal, aged about 40/45 years, nephew Mehrab Ali and Hussain along with other house inmates were available in the house. His brother Mohammad Bachal asked them that he is going outside and will come back. At about 10-00 p.m. They heard cries of Mohammad Bachal in the street outside the house, thereby complainant, his nephew Mehrab Ali and Hussain, rushed there, where they saw that Ghulam Murtaza son of Ghulam Hussain Chandio and Qurban son of Mohammad Saleh Chandio were causing sharp side of hatchet blows to his brother Mohammad Bachal who had fallen down on the ground. They raised hue and cry in order to save him. While the accused persons ran away towards southern side along with hatchets. They saw Mohammad Bachal had received two hatchets blows on his head and one hatchet blow at right side of his neck and died within their sight."
3. Learned counsel for the appellants/convicts has pressed the application on the sole ground that Mohammad Hussain (son of deceased), Mst. Zubeda (daughter of deceased), Mst. Soni (widow of deceased) and Ghulam Shabbir (complainant of the case), have filed their affidavits, wherein they have recorded their no objections regarding suspension of sentence of the appellants/convicts, with the plea that compromise have been effected between the parties, hence it would meet the ends of justice to release the appellants on bail. In support of her contentions, she has placed reliance on the case-laws, reported as 2009 PCr.LJ 260, 2005 YLR 1777 and 2003 M LD 1665.
4. On the other hand, counsel for complainant along with Mohammad Hussain (son of deceased), Mst. Zubeda (daughter of deceased), Mst. Soni (widow of deceased) and Ghulam Shabbir (complainant of the case), has extended no objection. Whereas, referred legal heirs have reaffirmed the contents of their affidavits. On query, they admitted that Sajjad, Hayat, Mehrab, Ajeeban, Humaira and Guria are also sons and daughter of deceased who are minors. Mst. Soni, the widow of the deceased, further pleaded that one appellant is her brother, whereas another is her nephew and instant case, in fact, was false.
5. Conversely, learned D.P.G., representing the State, has opposed the application while arguing that suspension of the sentence cannot be sought to be suspended merely on the ground that some of the L. Rs. Of the deceased have extended their no objections for suspension of sentence.
6. Heard arguments of respective sides and have also gone through the available record carefully.
7. The application for suspension of the sentence has solely been filed on the ground of no objection (s), extended by some of the legal heirs of the deceased, therefore, it would be germane to examine the value of such affidavit (s) within parameter of section 426, Cr.P.C. Before stepping upon this, it is suffice to say that the provisions of section 426, Cr.P.C. With that of section 497.
Cr.P.C. Are analogous to each other because both relate to the powers of the court for releasing the convict or accused on bail. However, the criteria for exercising powers in both provisions of law are different. It is settled provision of law that the power of appellate court under section 426(1), Cr.P.C.
Is not limited and the court may, pending disposal of an appeal, suspend the sentence of a convict in an appropriate case in its discretion for good A and sufficient reasons but this power of suspension of sentence and grant of bail is not wider than that of under section 497, Cr.P.C. And unless it is shown that conviction is based on no evidence or being based on an inadmissible evidence, is not ultimately sustainable. The reference, if any, can well be given to the case of Muhammad Saleem v. State reported in PLD 2006 SC 483, in this dictum, apex court has held that:- "There is no cavil to the proposition that appellate court in exercise of its power under section 426, Cr.P.C. May in a suitable case, suspend the sentence of a convict and grant him bail pending disposal of his appeal and notwithstanding any material difference in the principle governing for grant of bail under sections 497 and 426, Cr. P.C. The consideration for suspension of sentence and grant of bail pending trial may not be the same, therefore, the distinction must be adhered to for exercise of power, under the above provisions in proper manner. The power of appellate court under section 426(1), Cr.P.C. Is not limited and the court may, pending disposal of an appeal, suspend the sentence of a convict in an appropriate case in its discretion for good and sufficient reasons but this power of suspension of sentence and grant of bail is not wider than that of under section 497, Cr.P.C. And unless it is shown that conviction is based on no evidence or being based on an inadmissible evidence, is not ultimately sustainable, the grant of bail under section 426(1), Cr. P.C. With the consideration of ascertaining the question of guilt or innocence on merits through appraisal of evidence is not justified as the bail either under section 497 or 426(1), Cr. P, C. Could be allowed only on the basis of tentative assessment of evidence."
8. Similarly In, case of Raja Shamshad Hussain v.Gulzar Akhtar and others reported as PLD 2007 SC 564.Wherein it is held that:-- "In section 497, Cr. P.C., the existence and non-existence of the reasonable grounds for believing that the person is guilty of the offence and the scope of further inquiry are the criteria/hallmarks and for arriving at such conclusion the tentative assessment and not the minute or detailed assessment of the evidence has been made permissible, the principle laid down by this Court and re-affirming repeatedly. Similarly, the same guidelines have been laid down by the superior Courts that in case of suspension of sentence, only the tentative assessment of the material available evidence and of the judgments has been made permissible and the detailed appraisal of evidence was held to be avoided as held by this Court in the cases of Allah Ditta Khan (supra) and Farhat Azeem (supra). However, the principles laid down by this Court in the aforesaid judgments qua following the guidelines prescribed under section 497; Cr. P.C. While deciding application under section 426(1), Cr.P.C. But without being controlled by the aforesaid section i.e. 497, Cr.P.C. As held in the case of The State v. Shah Sawar 1969 SCMR 151 and such powers i.e., the suspension of sentences and grant of bail under section 426, Cr. P.C. Are not wider than the power to release a person on bail under section 497, Cr.P.C. As held in the case of Bahar Khan v. The State 1969 SCMR 81 but rather narrower."
9. It is worth to add here that the Appellate Court has been given power to suspend the sentence of convict but same is to be exercised with due care and caution and satisfactory, cogent reasons are required to be advanced for suspending the sentence, especially , in respect of sentence of life imprisonment. Needless to say that mere releasing of an accused pending determination of his guilt or suspension of sentence pending determination of legality of judgment never carries any effect upon the final fate of appeal or case.
10. Regarding the application of the affidavit (s) by witnesses or legal heirs extending no objection to grant of bail or suspension of sentence, it would suffice to say that if during course of trial a witness makes an affidavit exonerating the accused he causes a doubt towards his statement recorded during course of investigation or least, allows a presumption of not going to support the prosecution. Thus by making such affidavit he opens a room towards prosecution case. However, let me make it clear that such a witness could only make such an affidavit before recording of his evidence because once his evidence is recorded there remains no room for such an affidavit by such a witness hence any such attempt would be no avail for accused unless conflicting statement is brought on record through the course, provided by law itself regarding re- examination etc. Of witness. In view of above analysis, it is significant to add here that in matter(s) of appeal(s) there is no room of filing of affidavit (s) of the witnesses because once the judgment is pronounced it can only be got set-aside by establishing it to be result of mis-reading or non- reading of the evidence or that of in vioration of any law.
11. With regard to affidavit(s) of the Legal heirs in compoundable matter(s), it would suffice to say that if there is a genuine compromise the proper course for the parties is to resorts the legal course, so provided by the Law for such purpose. It is settled principle of law that a plea of compromise could only sustain when there is a genuine compromise from the person, so authorized by law for such purpose. On this proposition of law, honourable Supreme Court in case of, Qamar Abbas v. The State reported as 2000 SCM R 160, has held that:-- "The petitioner sought suspension of sentence before the High Court on the ground that he had been pardoned by the legal C heirs of the deceased. The High Court has rightly declined to grant bail on the ground. If there is a genuine compromise between the petitioner and legal heirs of the deceased, the petitioner, if so advised, may move the High Court through appropriate proceedings for disposal of appeal on the basis of alleged pardon."
12. Reverting to the case in hand, it is surfaced through the record and quarry that only three out of 9 legal heirs have come with a plea of compromise. Since the compromise can legally sustain only if the same comes from all the legal heirs (persons who are so authorized by the law under relevant column of section 345, Cr.P.C.), therefore, simple words of these three persons (legal heirs) cannot be considered to be sufficient to hold it a compromise. Further, if there is a genuine compromise / pardon the course for compromise to be resorted for acquittal of the appellants, as held in the case-law reported as 2000 SCM R 160.
13. In view of what has been discussed above, I am not inclined to accept the application under section 426, Cr.P.C., moved by the appellants/convicts and same is declined, as such.
14. These are the reasons of the short order dated 1-7-2013 whereby the application of the appellants under section 426, Cr.P.C. Was declined.