SALAHUDDIN PANHWAR, J.---Through instant application(s) under section 426, Cr.P.C., appellants of the respective appeals, have sought suspension of the operation of the judgment dated 18th April, 2013 passed by learned 1st Additional Sessions Judge, Badin in Sessions case No, 295/2010 S/v Noor Ahmed alias Teeta and others.
2. Succinctly, relevant facts of the prosecution case are that complainant Amjad All lodged FIR at Police Station Shaheed Fazil Rahu on 17-8-2010 at 1230 hours stating therein that hot words were exchanged between the relative of complainant and accused Noor Ahmed alias Teeta Pathan, Saleh Shah and Shahzad Ali. One day before fatefull day his brother-in-law namely Zahoor Illahi, Malik Mouzam and complainant were going to purchase the commodities when they reached hospital of Dr. Asadullah they saw accused Naseer Shah, Saleh Shah, Imran Shah and Mazhar Shah all sons of Hazrat Shah, who were armed with pistols, Noor Ahmed alias Teeta Pathan, Habib- Rehman, armed with pistol, Shahzad Ali and Zakir Hussain Pathan, armed with repeater, Hazrat Shah and Haji Sheereen , with empty hands. Zulfiquar alias Zulquad, Suleman Pathan, Rasheed Pathan and 2 or 3 unknown persons, armed with lathis, were available there. As soon as complainant party stopped the car, got down from it, meanwhile accused Hazrat Shah and Haji Sheeren instigated other accused persons not to spare complainant party, thereby Naseer Shah and Noor Ahmed alias Teeta Pathan caused straight fires upon complainant party, Zahoor Illahi received injuries on foot and leg. Accused Habib Rehman made straight fire which hit injured Malik Mouzam on his back side. Accused Shahzad All caused butt blows on the head of Malik Mouzam and accused Shahzad Ali caused butt blows to Zahoor Illahi on his head. Meanwhile P.W. Malak Lutaf Ali and Mohib Ali Shahani came there and rescued them from the accused persons, complainant thereafter lodged the FIR.
3. In result of the trial, all other accused persons were acquitted while the present appellant(s) and one Zakir Hussain were convicted in the following manner:--
(i) Under section 324, P.P.C. Read with section 34, P.P.C. And sentenced them to suffer R.I for ten years and to pay a fine of Rs,50,000 each and in default whereof to undergo S.I. For one year more;
(ii) Under section 337-A(i), P.P.C. Read with section 34, P.P.C. And sentenced to suffer R.I for one year and to pay Daman amounting to Rs,30,000 each to injured P.Ws. Zahoor Illahi and Malak Mouzam and in default whereof to suffer six months' more S.I.;
(iii) convicted under section 337-F(iii), P.P.C. Read with section 34, P.P.C. And sentenced them to suffer R.I for two years and to pay Daman amounting to Rs,30,000 to P.W. Zahoor Illahi and in default whereof to suffer six months' more S.I.;
(iv) convicted under section 337-F(vi) read with section 34, P.P.C. And sentenced to suffer RI for six years and to pay Daman amounting to Rs,40,000 to P.W. Malak Zahoor Illahi and in default whereof to suffer S.I for one year's more;
(v) convicted under section 337-F(i) read with section 34, P.P.C. And sentenced to suffer R.I. For one year and to pay Daman amounting to Rs,30,000 to injured P.W. Malak Mouzam and in default whereof to suffer six months' more S.I.;
(vi) convicted under section 337-L(2) read with section 34, P.P.C. And sentenced to suffer R.I. For two years and to pay Daman of Rs,20,000 to P.W. Injured Malak Mouzam and in default whereof to suffer six months' more S.I.;
(vii) convicted under section 341 read with section 34, P.P.C. And sentenced to suffer S.I. For one month more.
4. Mr. Durrani, learned counsel for the appellant Nisar Ahmed Shah, inter alia, argued that conviction is not sustainable under the law as the conviction has been awarded in such section(s) wherein the charge was never framed; the alleged injuries are not on vital part, therefore section 324, P.P.C. Was never attracted hence conviction in such section under section 324 is not sustainable; prosecution case is full of doubts, benefit thereof should be drawn in favour of the appellant even at this stage. Co-accused persons have been acquitted on same set of evidence.
Having pleaded so, he prayed for release of the appellant on bail, pending disposal of the appeal.
In support of his contentions, he placed reliance on the case laws, reported as 2010 SCMR 608, PLD 2007 SC 564, 2009 YLR 2205 and 2012 SCMR 997.
5. Mr. Noorani, learned counsel for the appellants Noor Muhammad alias Teeta and Habib-ur- Rehman, inter alia, argued that charge was not proper hence conviction resulted is not sustainable; the allegations against the appellants were never established by .The prosecution as well the allegation against the appellants never stood shouldered with medical evidence and this was never properly appreciated by the learned trial court judge while convicting the appellants; the allegation against the appellant(s) was of causing injuries, if any, on non-vital part therefore, queuing the appellants in same line was never legal, proper hence judgment of learned trial court judge is a patent case of illegality. Having pleaded so, he prayed for release of the appellants on bail, pending disposal of the appeal. In support of his contentions, he placed reliance on the case laws, reported as 2007 PCr.LJ 829, 2010 MLD 1068, PLD 2006 SC 802, 2009 YLR 1486, 2013 SCMR 1403, 2007 SCMR 184 and 2008 SCMR 558.
6. Conversely, learned counsel for Complainant and A.P.-G., seriously opposed suspension of sentence while arguing that deeper appreciation of the evidence is not permissible at such stage and only a patent irregularity or illegality will require release of the appellant(s) on bail, which the appellant(s), have failed in pointing out therefore, the application(s) are devoid of merit. Further, it is contended that charge is not defective, merely non-mentioning of section is not material but contents of charge are essential, which shows the nature of allegation, however charge can be altered at any stage without issuing show cause if same pertains to the same crime and punishment is lesser than the section wherein already charge is framed. In support of contentions learned counsel for complainant has relied upon 2007 PCr.LJ 829, PLD 2006 SC 153, 2010 MLD 1068, 2009 YLR 1486, 2013 SCMR 1403, 2007 SCMR 184, 2008 SCMR 558.
7. Both the learned counsel for the appellants have stoutly argued regarding the framing of the charge and its consequence(s), it would suffice to say that at the stage of deciding an application under section 426, Cr.P.C., it would not be justified to make a comment on this aspect for simple reason that it may result in causing prejudice to case of either sides at the time of final disposal of the appeal. Without prejudice to this, a reference to section 324, P.P.C. Is necessary which is reproduced here under:--
324. Attempt to commit qatl-i-amd.---Whoever does any act with such intention or knowledge, and under such circumstances, that, if he by that act caused qatl, he would be guilty of qatl-i- amd, shall be punished with imprisonment of either description for a term which my extend to ten years (but shall not be less than five years if the offence has been committed in the name or on the pretext of honour) and shall also be liable to fine, and, if hurt is caused to any person by such act, the offender shall (in addition to the imprisonment and fine as aforesaid) be liable to the punishment provided for the hurt caused; The underlined portion of said provision makes it clear that the punishment for such act (section 324) will not debar the Court from convicting for the hurt, caused by such person, during course of such act. Even otherwise, a defect in the charge is curable under sections 223 and 537 of the Code and a mere irregularity in the charge should not result in declaration of a legal trial as nullity particularly, where it caused no serious prejudice to the accused.
8. It is significant to mention that the provision of section 426(1) is analogous to the one contained in section 497, Cr.P.C., as in both the cases the sentence is to be suspended pending hearing of the appeal/trial and the convict is to be released on bail but 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 by making tentative assessment of the evidence while in case of section 426 only the tentative assessment of the material available evidence and the judgments have been made permissible. What is undisputedly common for exercising jurisdiction under sections 426 and 497, Cr.P.C. Is that deeper appreciation is not permissible. A reference can well be made to the case, reported in 2012 SCMR 997.
9. It is pertinent to refer that the sections 34 and 149 of the P.P.C. Are exception to the general principle of law of conviction which insists that no other shall be responsible for the act or consequences where except the one who did it, therefore, it has now become a settled principle of law that while awarding conviction(s) with reference to section 34 or 149, P.P.C. Much care and cautious be shown by the court and before reaching to such a conclusion the question of common intention or common object be also appraised. A reference to the judgment of honourable Supreme Court, reported as 2010 SCMR 1178 may be advantageous wherein, while dealing with question of bail, it was held that:-- "Common intention. ---issue normally one of further inquiry unless other compelling reasons existed and there were circumstances to reach a different conclusion".
10. At this stage reference to the judgment of Supreme Court, passed in the case of Muhammad Altaf v. State (2002 SCM R 189) is also relevant, wherein it was held that:-- "9. In the light of the arguments addressed and in view of the factual aspect of the case it is proper and necessary to first determine whether in the circumstances of this case the prosecution has been able to prove the ingredients of C section 149, P.P.C., and its application to the facts of the case. As this section stands, its ingredients have to be established by the prosecution. The liability of each accused involved in a case can only be fixed if the common object of the assembly is first ascertained."
11. In the instant case, the learned trial Court Judge has awarded conviction (s) to all convicts for each section by invoking section 34, P.P.C. Without determining the issue of 'common object', therefore, 1 feel that this aspect of the impugned judgment of conviction requires serious consideration which, however, is left open to be decided at time of final disposal of the appeal as it would require deeper appreciation.
12. Keeping in view above discussion, tentatively it is apparent that appellant Nisar is specifically nominated in the FIR with active role of causing fire shot injury to the injured on right leg of the injured which, per medical evidence, resulted into injuries within meaning of sections 337-F(iii) and 336, P.P.C., therefore, prima facie appellant Nisar Ahmed, is convicted under section 336, P.P.C., and sentenced to imprisonment for Ten years with payment of Arsh. The conviction of ten years' R.I.
Cannot be taken as short one and since the appellant Nisar Ahmed has not been able to prima facie show anything on record which could be termed as a patent illegality or irregularity to this extent, therefore, I am of the firm view that appellant Nisar Ahmed has failed to bring his case within exception where his sentence be suspended pending determination of legality of judgment of conviction.
13. As regard to the case against the appellant Noor Ahmed alias Teeta, the record shows that he was attributed an injury on left foot of the injured, which, per medical evidence, declared as 337- F(vi) and 337-F(iii), P.P.C. And conviction for same was awarded as six years' R.I. With payment of Daman and two years' R.I. With payment of Daman. The legality of other convictions, including the section 324, P.P.C., is left open for final determination then the conviction(s), ordered to run concurrently, makes me of the view that conviction of section six years be taken as short one particularly when the appellant has been in continuous confinement, therefore, suspending the sentence of the appellant Noor Ahmed alias Teeta, pending determination of the legality of the conviction, shall be in the interest of the justice.
14. So far as the appellant Habib-ur-Rehman, he was attributed injury with his pistol at back side of injured Malak Mouzam which did not find support from medical evidence and even otherwise injuries on person of the Malak Mouzam were declared to be falling within meaning of sections 337-A(i), 337-F(i) or 337-L(2), P.P.C., conviction(s), awarded for such offence(s), do fall within meaning of the short conviction , therefore, if legality of other convictions, including the section 324, P.P.C., is left open for final determination then it can safely be said that suspending the sentence of the appellant Habib-ur-Rehman, pending determination of the legality of the conviction, shall be also in the interest of the justice.
15. These are the reasons for the short order dated 22-7-2014 passed in respective appeals, whereby the application under section 426, Cr.P.C. Of appellant Nisar Ahmed was declined while that of appellant Noor Ahmed alias Teeta and Habib-ur-Rehman was accepted while suspending their sentence(s) and ordering for their release subject to their furnishing solvent surety in the sum of Rs,100,000 each (One lac each) and PR bond in the like amount to the satisfaction of Additional Registrar of this Court.