Crl. Misc. No,5394 of 2015 Abdul Waheed and Naseer Ahmad, petitioners have filed this petition under section 426 of the Code of Criminal Procedure (Act V of 1898) seeking suspension of their sentence awarded by the learned Sessions Judge Bahawalnagar vide judgment dated 15.4.2015 in case FIR No,391 dated 01.08.2014, offences under sections 302/396/412, P.P.C., registered at Police Station Saddar Bahawalnagar. They were convicted and sentences as under:- "Under section 396/149, P.P.C.
Rigorous imprisonment for 10-years each and to pay the fine of Rs, 200,000/- each and in default thereof to further undergo simple imprisonment for six months."
They were held entitled to the benefit of section 382-B, Cr.P.C.
2. Learned counsel for the petitioners has contended that this case was registered against unknown persons; that it was an unseen occurrence; that the only evidence against the petitioner is of identification parade wherein no role towards the deceased has been attributed to the present petitioners and even nothing was recovered from them, therefore, they are entitled to the suspension of their sentence.
3. On the other hand learned APG assisted by the learned counsel for the complainant has opposed this petition and it is contended that the prosecution has successfully proved its case against the petitioners beyond reasonable doubt and no major contradiction or discrepancy could be pointed out and that there exists no cogent reason to suspend the aforementioned sentence.
4. We have heard learned counsel of the petitioners, learned APG for the State assisted by the learned counsel for the complainant and have gone through the record.
5. Admittedly, the FIR was registered against unknown accused and the petitioners were arrested on secret information being suspects and were involved in this case having been identified by the witnesses during identification parade held on 02.9.2014 as culprits of this case. A No specific role has been assigned to petitioner/convict in proceedings of identification parade. It is also an admitted position that no looted property was recovered from the petitioners. Learned counsel for the complainant has emphasized his arguments to the presumption of innocence in favour of the petitioners being disappeared after their conviction and that the deeper appreciation of evidence is not permissible. Learned counsel for the petitioners controverted the aforesaid arguments by producing copy of an approved case for reporting judgment dated 04.03.2016 of august Supreme Court of Pakistan passed in Criminal Petition No,634 of 2015 (Soho Khan v. The State another). In paragraph No,14 of the said judgment, it has been held as under:- "The contention that after conviction the initial presumption of innocence in favour of the accused disappears, will have little bearing on the mind of the Appeal Court because appeal is always construed to be continuation of the same proceedings and fair balance is to be struck between the two extreme views so that justice is done in all circumstances and technicalities of procedural law, shall in no manner thwart the same because if in the end of the day after spending years in the prison, the convict is acquitted, there is no reparatory arrangement so far provided in any law including the Criminal Procedure Code, to compensate him for incarceration in prison for years."
In continuation of dictum regarding difference between tentative assessment and deeper appreciation of evidence laid down in case titled "Khalid Javed Gillani v. The State" (PLD 1978 SC 256), august Supreme Court of Pakistan in the aforementioned approved for reporting judgment dated 04.03.2016, in paragraph No,16, has been pleased to observe as under:- "however, if on reconsideration of the evidence the Court of appeal is of the view that conviction and sentence is not liable to be maintained then, slightly touching the merits of the case without recording conclusive findings therein, would be a permissible course in the interest of justice because such assessment of evidence would not be binding on the Court of appeal, or to say the High Court, while hearing the appeal. It is for this reason that the Legislature has enacted subsection (3), of section 426, Cr.P.C. envisaging how to the Court of appeal to deal with in future course when the sentence awarded by the Trial Court is maintained."
Though deeper appreciation of evidence is not permissible at this stage yet in view of the dictum laid down in aforementioned judgment, the same has been made permissible to the extent of slightly touching merits of the case without giving conclusive findings. The question qua the role of present petitioners and non-recovery of looted amount from the petitioners as held by the learned trial Court in paragraph No,18 of the impugned judgment, needs reappraisal of evidence at the time of hearing appeal. Moreover, co-appellant Muhammad Abbas has been sentenced to death by the learned trial Court, and there is no likelihood of this appeal being heard in near future as the same was filed on 20.04.2015. Furthermore, there is no evidenceon recordindicating thatpetitionerswere previously convicted, hardened-desperate or dangerous criminals or were accused of an act of terrorism punishable with death or imprisonment for life.
Epitome of above discussion is that the petition in hand is accepted and the sentence awarded to the petitioners vide judgment dated 15.04.2015 is suspended. The petitioners, are directed to be released on bail subject to their furnishing bail bonds in the sum of Rs,500,000/- each with one surety each in the like amount to the satisfaction of Deputy Registrar (J) of this Court. revisions by the competent authorities. Therefore, it is advisable to consult the official sources or legal professionals for the most up-to-date and accurate information.