' The petitioners were convicted on the charge of murder of Sajawal Khan deceased by the District Criminal Court, Kotli, on 11th December, 1983, whereby Muhammad Latif was awarded sentence of life imprisonment, Gulbahar, Yunus and Aslam were awarded sentence of rigorous imprisonment for a period of 10 years each, under section 5 read with sections 3 and 24, Islamic Penal Laws Act and section 149, A. P. C. The conviction is challenged in appeal before this Court and meanwhile, peti. Tioners seek suspension of execution of sentence.
2. The incident took place at 10 a. m. On 16th August, 1980 at a place known as Pailian, situated in village Darlia Jattan, District Kotli. Sajawal Khan deceased left his house for Palak for condolence of one of his relatives. At a distance of a furlong, he was attacked by the convicts, namely, Sultan, Gulbahar, Muhammad Yunus, Muhammad Aslam and Muhammad Latif. Sultan and Latif were armed with hatchets, whereas others were armed with lath is. Sultan opened attack by inflicting injury on the head of the deceased and was followed by Latif who inflicted incised wound with his hatchet on parietal bone. The other convicts joined Sultan and Latif in causing indiscriminate intensive injuries to the deceased. Muhammad Amin, Muhammad Rafique, Mst. Maqsud Bibi and Mst. Seeman Bibi were attracted by the cries of the deceased and arrived immediately on the spot.
Muhammad Amin and Muhammad Rafique were the witnesses of the whole incident, whereas Mst.
Maqsud Bibi and Mst. Seeman Bibi also saw convicts inflicting injuries to deceased. Sajawal was removed immediately to Police Post Nar, where his statement was recorded by Bashir Ahmed Salaria, S.-I. Incharge Police Post. It was disclosed that Sajawal Khan thereafter succumbed to injuries and died before reaching the hospital. In his dying declaration, Saiawal Khan named all the convicts and ascribed infliction of injuries by hatchets and lat his.
3. Sultan was awarded sentence of Qissas, but on appeal, the legal heirs of the deceased agreed to grant pardon to Sultan on payment of diyyat. The legal heirs moved an application in this Court and admitted payment of diyyat by convict to all the legal heirs. In presence of grant of pardon on acceptance of diyyat, Sultan was released.
4. The learned counsel for the convict-petitioners sought suspension of execution of sentence on the following grounds :-
(i) That the injuries ascribed to the convicts being simple in nature, were covered by sections 323 and 325, A. P. C., as such it was a case of bailable offence ;
(ii) That grant of pardon to Sultan convict on acceptance of diyyat was a ground for acquittal of the convicts ; and
(iii) That on merits, the prosecution failed to prove its case beyond reasonable doubt.
' Reference was made to PLD 1968 SC 1064, 1971 SC MR 657, 1970 P Cr. L 5 1193 and 1968 P Cr. L J 228.
The objections raised by the learned counsel for the petitioners were controverted by the learned counsel for the State on all scores and it was argued that the prosecution having successfully brought home the guilt of the convicts, as determined by the trial Court, there was no sufficient reason for suspension of execution of sentence. The learned Additional Advocate-General cited 1969 SCM R 81, 1968 SC MR 683, 1970 SCM R 291 and 1971 P Cr. L J 5 and unreported cases of this Court, titled Mst Gulab Jan V. State, Noor Muhammad v. State and Khadim Hussciin v. State. The trial Court recorded conviction of the petitioners on the basis of direct evidence of Muhammad Amin, Muhammad Rafique, Mst. Maqsud Bibi and Mst, Seeman Bibi. In opinion of the trial Court, the testimony of the eyewitnesses was corroborated by medical report and recoveries. The conviction also rested on the dying declaration of the deceased.
5. The rule of grant or refusal of the bail, contained under sections 497 and 498, Cr. P. C. Is equally applicable to a case of convict seeking suspension of execution of sentence under section 426, Cr.
P. C. It is true that restrictions imposed in the case of an accused charged for offence A providing sentence of death and life imprisonment, are not expressly provided under section 426, Cr. P. C., but consensus is that such restrictions are always kept in view while determining the question of suspension of execution of sentence. In Mst. Gulab Jan v. State, it was observed that the execution of sentence may be suspended in a case where chances of acquittal are found equal. Applying the said rule to the case in hand, it is not found conducive and expedient to suspend the sentence.
6. Attention of the Court was invited to the dying declaration with the suggestion that the dying declaration was not credible as the same was recorded in presence of the relatives of the deceased. It was also argued that the ocular evidence was equally incredible as it was interested and biased. It is not desirable to enter into deep appreciation of evidence but a tentative look on the evidence reflects that the objection is not well-founded. Likewise, the weight of dying declaration cannot be ignored in absence of valid legal reasons.
7. It is correct that Sultan convict was released by this Court by virtue of grant of pardon on acceptance of 'diyyar. The convicts were ascribed with the liability of infliction of injuries to deceased. According to the medical report, the cause of death was injuries Nos. 1 and 8 and haemorrhage caused by other injuries. Even if it is believed for the sake of argument that injury No, 1 was ascribed to Sultan, the other injury mentioned at Serial No, 8, caused with a blunt weapon and haemorrhage resulting from the accumulative effect of various injuries, was, prima facie, assigned to the convicts. It is, therefore, reasonable to believe that prima facie, Sultan alone was not responsible for the death of Sajawal Khan. It was argued that the convicts remained in Judicial Lock-up during trial and under law, the period of detention during the trial was accountable towards completion of sentence of the convicts. It was suggested that even if the sentence is maintained in appeal, the convict petitioners were entitled to the concession of bail. There is no dispute that under law, period of detention during trial is accountable towards the period of sentence, but this fact itself was not a ground for suspension of execution of sentence. It is accepted that in criminal jurisdiction, after conviction, the initial presumption is against the innocence of the convict. In order to seek concession of bail, the onus is on the convict to satisfy the Court that the chances of his acquittal were equal. In the instant case, the learned counsel for the petitioners was unable to point out material defects so as to believe that chances of their acquittal were balance. It has been' repeatedly observed that the precedents of criminal jurisdiction have purely guiding force. But each case of criminal jurisdiction is decided in the light of its own facts. The authorities cited by the learned counsel for the petitioners rest on altogether distinguishable facts. The precedents are, therefore, not found helpful to the petitioners.
In view of the observations made above, the petition is dismissed. ,