MAZHAR IQBAL SIDHU, J. Petitioner by an application filed under section 426(2-b), Cr.P.C. Has prayed for the suspension of execution of sentence imposed by the learned trial court, upheld by the Lahore High Court, Lahore and the Hon'ble Supreme Court of Pakistan has granted leave to appeal to the petitioner vide order dated 18-12-2012.
2. Teresely the prosecution case is that petitioner was charged to murder Shahid Mehmood, tried to conviction and sentenced vide judgment of the learned trial court dated 29-7-2009 under section 302(b), P.P.C. To imprisonment for life and to pay Rs,4,00,000 as compensation to the legal heirs of the deceased recoverable as arrears of land revenue and also benefitted under section 382-B, Cr.P.C.
3. The said judgment was questioned before Lahore High Court, Lahore but it was upheld vide judgment dated 2-4-2012, thereafter, both the judgments were assailed before the Hon'ble Supreme Court of Pakistan who has been pleased to grant leave vide order dated 18-12-2012 and now the instant application.
4. Learned counsel for the petitioner has argued that leave granting order has immense relevance for the acceptance of instant application as the whole case of the prosecution has been ordered to be heard and the grounds having been persuaded the Hon'ble Supreme Court are enough to accept the appeal, in this way, the petitioner has optimistic to his acquittal being not in the down- beat whereas he was arrested on 16-9-2008 in the case, since then incessantly is in the prison thus the instant application may be accepted.
5. Learned counsel has supplemented his arguments through the precedental law by relying upon the case of Muhammad Ashraf v. State and another (2013 PCr.LJ 403) that in identical case the quantum of sentence of an accused was suspended.
6. Learned A.P.G assisted by the learned counsel for the complainant has opposed the submissions.
It has been argued that two concurrent findings of conviction and sentence exist and so far as the order of grant of leave of the Supreme Court is concerned, no conclusive observations have been made by the Hon'ble Court rather the contentions/ submissions of the learned counsel for the petitioner have been taken down but it never mean that likelihood of acceptance of appeal does necessarily exist. Learned counsel for complainant has further argued that the learned trial court as well as the Hon'ble Apex Court has turned down the submissions of the petitioner while holding him guilty to the charge, therefore, the petitioner is not entitled for the suspension of sentence.
7. Arguments heard. Judgment of the learned trial court, of the appellate court and the leave granting order of the Hon'ble Supreme Court of Pakistan have been perused.
8. It has been considered appropriate to take down the contentions/submissions having been incorporated in the leave granting order, therefore, the same are as follows:-- "It has inter alia been contended by the learned counsel for the petitioner-convict that the occurrence in this case had taken place in the small hours of a night, i,e, at 03.45 a.m.; the place of occurrence was the house of the petitioner; the record of the case had established that at the time of his death Shahid Mehmood deceased was wearing only a Shalwar and his upper part of the body was naked; the post-mortem examination of the dead body had been conducted with a noticeable delay giving rise to an inference that time had been consumed by the complainant party and the local police in procuring and planting eye-witnesses and cooking up a story for the prosecution; Shahid Mehmood deceased had received as many as nineteen injuries on his person which showed that he had been done to death in a situation which had provoked his murderer; the record of the case shows that the petitioner as well as one of his minor sons had also sustained injuries during the same incident which injuries had never been explained by the prosecution in any manner whatsoever; the eyewitnesses produced by the prosecution lived far away from the place of occurrence and they had not seen the origin of the incident; and Haider Ali, a co-accused of the petitioner, had not even been challaned despite the fact that the allegations leveled against him were identical to those leveled against the petitioner. With these submissions the learned counsel for the petitioner has maintained that the prosecution had failed to prove its case against the petitioner beyond reasonable doubt.
' The contentions of the learned counsel for the petitioner noted above require reappraisal of the evidence so as to secure the interests of. Justice. This petition is, therefore, allowed and leave to appeal is granted for the purpose."
After assessing the available material it has been noticed that the submissions noted by the august Court that incident took place nocturnally .(in the small hours of night), the place of occurrence being house of the appellant appears to be decisive in the case; appellant has put forth his own version as to the befalling of incident notwithstanding so far it has not been believed; the bloodstained earth was also taken from the house of the appellant by the police and the Hon'ble Supreme Court of Pakistan has ordered for the reappraisal of the evidence so as to secure the interests of justice. In these circumstances, prima-facie a case for the suspension of execution of sentence is made out in favour of the petitioner, therefore, relying upon case of Muhammad Ashraf v. State and another mentioned supra, application in hand is accepted, sentences imposed upon the petitioner by the learned trial court upheld by the learned appellate court are ordered to be suspended provided submissions of bail bonds to the tune of Rs,3,00,000 each with one surety by the petitioner to the satisfaction of D.R. (Judi.) of this Court. It is however, clarified that the petitioner shall remain incessant in appearing before the Hon'ble Supreme Court of Pakistan till the final decision of appeal.