' TASSADUQ HUSSAIN JILLANI, J.---Petitioner along with five others were proceeded against in terms of the case registered vide F.I.R. No, 582 dated 8-11-2009 under sections 302/109/148/149, P.P.C. At Police Station Saddar Farooqabad, District Sheikhupura. The learned trial Court in terms of its judgment dated 15-9-2012 while acquitting the rest convicted the petitioner under section 302(b), P.P.C. And sentenced him to life imprisonment.
2. Petitioner seeks suspension of sentence as according to learned counsel appearing for him, the learned trial Court disbelieved the motive, the ocular account and held that it was a case of cross firing between Muhammad Asif deceased and Iftikhar Ahmed petitioner and not a case where petitioner exercised his right of private defence, which in the facts and circumstances of this case was not tenable in law.
3. Learned Additional Prosecutor-General, on the other hand, did not seriously oppose the petition as according to him the learned Trial Court indeed did not believe the prosecution evidence and ought to have extended credence to the statement made by the petitioner under section 342, Cr.P.C.
4. Learned counsel for the complainant, however, opposed the petition and contended that the suspension of sentence would entail deeper appreciation of evidence which is not permissible in a petition under section 426, Cr.P.C. And instead prayed that the main appeal be directed to be fixed for an early date.
5. Having considered the submissions made, we find that admittedly the motive part of the prosecution story was disbelieved by the court. The two eye-witnesses namely P.W.5 Bakhsheesh and P.W.6 Nadeem-ur-Rehman were found to be chance witnesses and not worthy of credence by the trial Court. The case of the petitioner in his statement under section 342, Cr.P.C. Was that "I and Asif deceased were very fast and best friends. On the day of occurrence, it was Eid and we were wandering together and off and on, we were sitting in front of Saloon at Adda. On that day, tive were talking to each other while sitting there. Suddenly, a quarrel took place between us due to mobile Phone, He made two fires on me with his pistol which hit on my leg and I was injured. After that I made firing with Rifle in my defence as a result of which he died. Suddenly, occurrence took place." The learned trial Court, instead of deciding the matter in the light of the evidence recorded and the statement of the accused proceeded to hold that in absence of ocular account the evidence of investigating officers could be relied upon and observed that "in absence of eye account and admission of Iftikhar Ahmed, the only way left for the court to reach the just decision is to consult the evidence of investigation which has been produced through the statements of P.W.10/M. Akram SI and P. W.12/ Syed Zahid Sherazi S.S. P.W.10/M. Akram SI/10 has deposed in cross- examination that during his investigation, it transpired that .Deceased and accused Iftikhar were good friends inter se. They both used to spend time with each other. That on the day of occurrence the deceased/M. Asif and Iftikhar/accused were together at the place of occurrence and having good time during which some altercation broke out between them. During the occurrence, the accused Iftikhar and deceased Asif, made fire shot at ground." In the light of the afore-referred testimony of the witnesses who admittedly were not present at the spot, the Court held as follows:-- "So, it is concluded that accused/Iftikhar Ahmed fired with his weapon just when M. Asif deceased fired at him. That is after altercation, they both fired at each other simultaneously which fact has been suppressed by complainant party before I.Os/during investigation and in this trial whereas Iftikhar Ahmed/Booba accused has concocted the story of his going to Saloon/Hamam to make the situation to show his right of private defence in his favour. Net result is that they Iftikhar and M.
Asif deceased made firing at each other and both were injured. But M. Asif died. So, it cannot be said that M. Asif deceased shot fires first. So right of private defence was not available to both of them and actually it was an incident of simultaneous cross firing made by them in which both were injured and M. Asif died. So, it is held that it was an incident of sudden cross firing instead of right of private defence of each other. "
6. We would not like to comment on the merits of the findings rendered by the learned Trial Court lest it may prejudice the case of either side during hearing of the appeal pending before the learned High Court. However, we are constrained to observe that the law laid down by this Court qua the value of the statement of the accused under section 342, Cr.P.C. When the prosecution has failed to prove its case beyond doubt escaped the notice of the learned trial Court. In Sultan Khan v. Sher Khan etc. (PLD 1991 SC 520), this Court at page 524 observed that "if the conviction of the accused is to be based solely on his statement in court this statement should be taken into consideration in its entirety. The statement of an accused should be taken into consideration in its entirety and not merely the inculpatory part of it to D the exclusion of the exculpatory part unless there is other reliable evidence which supplements the prosecution case. In such a condition, the exculpatory part if proved to be false may be excluded." This was reiterated in Faqir Muhammad v.
State (PLD 2011 SC 796) wherein it was observed as follows:-- "This approach adopted by the learned Judge in chamber of the Lahore High Court, Multan Bench, Multan had been found by us to be completely offensive to the settled principle of criminal jurisprudence that if the version of the prosecution is disbelieved then the version of the incident advanced by the accused party is ordinarily not even to be looked at or considered and if it is to be considered then the same has to be accepted or rejected as a whole. In the case of Waqar Ahmad v. Shaukat Ali and others (2006 SCMR 1139) it has been held by this court that if the prosecution fails to establish its case against an accused person then the accused person is entitled to be acquitted even if he had admitted killing the deceased and had advanced a specific plea in that regard which he had failed to prove. It had also been held by this Court in the case of Sultan Khan v. Sher Khan and others (PLD 1991 SC 520) that the statement of an accused person recorded under section 342, Cr.P.C. Is to be accepted or rejected in its entirety in case the prosecution's case fails entirely. It was further held in that case that the inculpatory part of an accused person's statement can be utilized by the court only where the prosecution succeeds in establishing its case and the defence fails to establish the specific plea taken by it."
7. This view was again affirmed in Azhar lqbal v. State (2013 SCM R 383).
8. The question whether in the light of the evidence recorded during trial and the law laid down by this Court could the petitioner be convicted under section 302(b), P.P.C., would require serious consideration during hearing of the appeal. It is well settled that the principles for suspension of sentence under section 426, Cr.P.C. Are analogous to the principles of bail in terms of section 497, Cr.P.C. In these circumstances, petitioner has made out a case for suspension of sentence.
Consequently, this petition is converted into appeal and allowed and subject to petitioner's furnishing bond in the sum of Rs,100,000 with two sureties in the like amount to the satisfaction of the learned trial Court, his sentence shall remain suspended till the final disposal of the main appeal. Needless to observe, the observations made in this order are tentative in nature and shall not affect the merits of the appeal.