IJAZ NISAR, J.--This is an application for the suspension of sentence of Altaf Hussain Shah Sub- Inspector Police who stands convicted under section 302, P.P.C. And sentenced to death by the learned Sessions Judge, Khushab on 10-2-1986.
2. The facts necessary for the disposal of the petition are that Khaliq Dad Khan, brother of the deceased filed a private complaint against the petitioner on the allegations that he alongwith Sikandar Hayat Khan (deceased), Muhammad Zaman Khan (not produced), Khan Mir Khan (P.W.4) and Bashir Khan (not produced) was proceeding to Mianwali on a wagon driven by Wazir Khan P.W.4 and when the wagon arrived at the Dera of Mangal Wala, Syed Altaf Russain Shah petitioner, Hidayat Ullah Khan, A.S.I., and a few Constables stopped it and asked them to get down for' the purposes of search. Sikandar Hayat Khan (deceased) told the petitioner that there was nothing objectionable with them and that they were going to the mortuary in connection with the death of their relative whereupon the petitioner took out his pistol. Out of fear the deceased took to his heels.
The petitioner fired at him hitting him on his head. Shortly thereafter Sikandar Hayat Khan succumbed to the injury. The police party carried the dead body and showed his death in a fictitious police encounter and lodged report Exh. D.G. To that effect at Police Station Mianwali on the same day.
2. The motive alleged by the complainant was that sometime prior to the occurrence the deceased had been arrested in an Arms case and there had been an altercation between the deceased and the petitioner. The deceased had abused the petitioner who had threatened him with dire consequences.
3. The petitioner in his statement under section 342, Cr.P.C. Denied the prosecution allegations and made the following statement:--- "The deceased was a headstrong man and belonged to a family of law-breakers. On the day of occurrence I was conducting Gasht and checking illicit arms near Mangalwala when a wagon came from the side of Village Chidhru. The inmates of the wagon on seeing the police Pick-up stopped the wagon. The deceased alongwith two others armed with a rifle and guns respectively tried to escape. The police party challenged them and told them to get their licences, if any, checked. On this the deceased and his two companions pointed their weapons towards the police and challenged the police party not to come near them. We told them that they should, stop and I proceeded towards them. The deceased and his two armed companions turned towards us and started firing on us. In self-defence and to enforce the law I, Hidayat Ullah A.S.I. And Ilam Din Constable fired a 'shot each from our service arms. One of the companions of the deceased threw his gun at the spot and ran away while the other companion of the deceased ran away from the spot alongwith his gun. The deceased was hit and he fell down. He was hit while he was firing at the police party. In the meantime the Wagon driver escaped from the spot racing his Wagon. I arranged Sikandar Hayat Khan to be carried to the hospital for medical aid but he died on the way to the hospital. His rifle was picked by me alongwith empty inside the chamber and two empties of his rifle lying at the spot. I got a case under section 307/353/186/34, P.P.C. And 8 M.L.R. Registered against the deceased and his companions. The case was investigated by D.S.P. And companions of the deceased have been challaned to Court. The gun of one of the companions of the deceased was also taken into possession. As the deceased died in a police encounter I have been falsely involved in this case.
I am innocent. My innocence was confirmed by the investigation of the case mentioned above by the D.S.P. And by the judicial inquiry conducted under the orders of the Government.
The deceased was apprehended in the Arms Act case by Iman Ullah H.C.P.S. Qamar Mashani and not by me. I tendered in evidence F.I.R. Exh.D.D. To the above effect. The accused i.e. Sikandar Hayat Khan was brought to P.S. Sadar Mianwali on the day of recovery of arm at 9-15 p.m. By Iman Ullah aforementioned. Copy of the daily diary Exh.D.E. Is being produced to show the above. Sikandar Hayat Khan deceased had confessed the possession of illicit arms and was convicted by the Court on 28-7-1981 as is evident by Exh.D.D. The allegation of motive that I apprehended the deceased or that he had an altercation with me are false. During the days of occurrence there were orders of the Inspector-General Police and C.M.L.A. For checking of the arms. I produced in evidence the letter of I.-G. Police copy Exh.D.F. The deceased was a desperado. His brothers were also law- breakers. I produced in evidence th4 criminal history of Sikandar Hayat Khan Exh.D.L, supplied be S.P. Mianwali to D.I.-G Police. The deceased was challaned it a murder case vide F.I.R. Exh.D.M. While he was in Jail ho committed an offence under section 307/452, P.P.C. The copy o F.I.R. Is Exh.D.N.
When he was present in the judicial lock-ul in the Courts at Mianwali he was involved in a police encounter The copy of the F.I.R. Is Exh.D.O. The complainant is ac absconder even now. Copy of order of Civil Judge, Attock dates 20-11-1983 Exh. D.P. Is placed on the record. Copy of F.I.R under section 307, P.P.C. Got registered against the deceased and his companions relating to the present incident is Exh .D.B The final challan prepared in the case by the S.H.O. On the basis of the investigation of the D.S.P. Are being produced a Exh.D.H. And Exh.D.J.
On the day of present occurrence S.P. Mianwali wrote a letter to D.M. Mianwali requesting for judicial inquiry. Copy .Of the letter is Exh.D.K. A Press note was also issued by the D.M, on the .Day of occurrence of which copy is Exh .D.Q.D.M ,Mianwali informed Commissioner Sargodha Division about the present occurrence. Copy of the said letter is Exh .D.R. Commissioner, Sargodha Division appointed Ghazanfar Hussain, the then A.D.C. (G) Sargodha as inquiry officer vide order copy Exh.D.S. A letter in the same connection addressed to Sh. Ghazanfar is Exh.D.T. The Government also appointed Sh. Ghazanfar Hussain as Inquiry Officer vide notification Exh.D.U. Sh. Gazanfar Hussain made inquiry report of which copy it Exh .D.V. The comments of District Magistrate Mianwali on this report are Exh.D.X. On the same day Hidayat Ullah A.S.I. Who was presumed to have hit the deceased from out of my party was attacked by the party men of Sikandar Hayat Khan deceased in the hospital at Mianwali and a report was made by Hidayat Ullah about the occurrence of which copy is Exh.D.Y."
4. Suspension of sentence is sought on the grounds that: (i)It is a case of counter-versions.
(ii)In the judicial inquiry which was held in the case the Inquiry Officer had arrived at the conclusion that prima facie in the circumstances of the case, the police was justified in resorting to firing.
(i.e)The deceased had a criminal history as reported by the Superintendent of Police Mianwali to the Deputy Inspector-General of Police Sargodha vide Memo No.188-Steno dated 23-11-1981. It may be reproduced: (1)Sikandar Hayat son of Karam Dad Pathan of Sultanwala Sharqi Police Station, Musakhel was convicted to transportation for life in case F.I.R. No. 114, dated 1-12-1970 under section 302/34, P.P.C.
Alongwith his brother Khizar Hayat (involved in the recent assault case F.I.R. No. 347, dated 22 11-1981 under section 307/353/148/149/188, P.P.C. Read with section 8 M.L.R. Police Station. Saddar Mianwali.
He absconded and was consequently declared a P.O. He was, however, arrested on11-2-1971.
After undergoing a term of imprisonment for a period of 8-- years the deceased was released from the Jail in February this year. His brother Khizar Hayat accused was involved in a number of Dacoity/Robbery cases of Police Stations, Piplan and Darya Khan.
(2)His third brother, Mumtaz, is still undergoing imprisonment in Jail in another murder case of Police Station, Musakhal. His fourth brother Shaukat Hayat was also killed by relatives of Wazir Khan deceased of Sultanwala Sharqi in 1974.
(3)Sikandar Hayat deceased, alongwith his three brothers including aforesaid Khizar Hayat inflicted knife blows on 8 under-trial persons inside the Jail while they were undergoing imprisonment in a murder case. In this respect case F.I.R. No.19, dated 11-11-1973 under section 307/452/148/149, P: P.C.
Police Station Saddar was registered. Sikandar Hayat deceased was awarded 4 years' R.I.
(4)In case F.I.R. No.40, dated 22-1-1973 under sections 307/353/148/149 and 13/20/65, Arms Ordinance Police Station, Sadar Mianwali Sikandar Hayat deceased and his brother Mumtaz assaulted a police party with a knife. They were also convicted in this case.
(5)During hold-up arrangements for the arrest of Saadat Baluch of Multan, Sikandar Hayat deceased was intercepted by the police and an unlicensed .32 bore revolver with 5 cartridges was recovered from his possession for which case F.I.R. No-149, dated 9-5-1981 under section 13/20/65, Arms Ordinance was registered against him which is pending trial.
(6)His brother Khizar Hayat is a B.C. On bundle A of Police Station, Musakhel. A personal File is also being maintained in respect of Sikandar Hayat deceased at Police Station, Musakhel for his above said criminal activities."
Learned counsel for the petitioner further states that prosecution version suffers from such major infirmities that makes the entire case extremely doubtful and since the benefit of such a doubt is to be extended to the accused persons at every stage the sentence awarded to the petitioner deserves to be suspended. The ocular evidence produced by the complainant party is interested.
In the cross case under section 307 , P.P.C. Which was got registered against the deceased and the complainant and which related to the present incident, the investigation carried out by the D.S.P.
Supported the defence version put-forth by the petitioner in the present case.
A judicial inquiry was held by Sheikh Ghazanfar Hussain, Additional Deputy Commissioner (G)
Sargodha and in para. 9 of his report he observed:--- " .....It can be said that the police was justified in resorting to firing. As there was no deliberate intention to kill any one, no criminal liability has been incurred by the police ---------"
Lastly that since the alleged act was done by the petitioner in execution of his official duty and despite his conviction he had no been placed under suspension and had remained on pre-arrest bas during the trial as such there is no fear of his abscondence and the sentence awarded to him deserves to be suspended.
5. The learned Assistant Advocate-General has not opposed the petition and states that he has instructions not to support the conviction of the petitioner and has been instructed by the Government to file State Appeal against acquittal of the deceased's party in the case o murderous assault on the police i.e. The cross case respecting this same occurrence. However, learned counsel for the complainant ha strongly opposed the grant of bail to the petitioner at this stage of the ground that it has been the general practice of this Court to avoid deeper appreciation of evidence while disposing of an application the suspension of sentence under section 426, Cr.P.C.
Furthermore that the conviction of the petitioner was based on ocular testimony and motive.
6. We have given our anxious consideration to the contentions by the learned counsel for the petitioner and the complainant. There no denying the fact that it was a complaint case. The alleged occurrence had taken place on 22-11-1951 while the complaint was filed on 8-5-1982 Before the filing of the complaint a judicial inquiry was held in respect of the occurrence by Sh. Ghazanfar Hussain Additional Deputy, Commissioner (G) Sargodha. The Inquiry Officer observed "that the police was justified in resorting to firing and that there was no deliberate intention to kill anyone. No criminal liability had been incurred by the, police. In these circumstances, the registration of a criminal case against the police was uncalled for." He further mentioned in the said inquiry report that the police party was assaulted which compelled them to us force not only to make the deceased and his companions to comply with the law but also to defend themselves. The Deputy Commissioner Mianwali had concurred with the findings of the Inquiry Officer and had observed that the police have rightly acted in their self-defence and that in the circumstances the registration of a criminal case was uncalled for.
7. As regards the appellate Court's power and discretion to suspend the sentence and grant bail under section 426, Cr.P.C. a reference, may be made to Abdul Ghaffar v. Anwar-ul-Hassan etc. 1978 SCMR 149 where it was observed that there is no ambiguity about section 426, Cr.P.C. And the appellate Court's discretion to grant bail is no fettered or restricted by reference either to the conviction or to the sentence passed against the appellant by the trial--court but like all discretions vested in the Courts, the discretion has to be exercises judicially. In Abdullah Khan v.
Karam Dad Khan and another 196 SCMR 1064 it was observed that section 426, Cr.P.C. Does not impose, any limitation on the powers of the High Court to grant bail to at accused convicted for the murder and the High Court for good and sufficient reasons can exercise the power of granting bail under the said section. Faqir Muhammad v. Akbar etc. 1979 SCMR 270 may also be cited where the Supreme Court refused to interfere with the order of the High Court suspending sentence of a convict sentenced to imprisonment for life on the ground of plea of self-defence needing examination in view of fairly large number of injuries sustained on accuser---s side such having not been explained by the prosecution. Haji Mir Aftab v. The State 1979 SCMR 320 is another case where the Supreme Court had suspended the sentence of a convict sentenced to imprisonment for life. In the said case a reference was made to Maqsood v. Ali Muhammad and another 1971 SCMR 657 where the complainant was refused Special Leave to Appeal by the Supreme Court against an order of the Division Bench of the High Court suspending the sentence of transportation for life of a convict under section 426, Cr.P.C. The relevant paragraph is to the following effect: "The complainant has now come up to this Court for Special Leave to Appeal and it is contended on his behalf that under section 426, Cr.P.C. No bail can be granted. This is clearly incorrect for subsection (1) of section 426, Cr.P.C. Itself states that pending an appeal by a convicted person the Appellate Court may order the suspension of the sentence and also if he is in confinement order his release on bail or on his own bond."
The case of Hazrat Ullah v. The State 1979 P Cr. L J 1104 may also be cited with advantage where sentence of death of a convict was suspended by a Division Bench of this Court and he was released on bail.
8. The learned trial. Court has not discussed in detail the report of the judicial inquiry nor has given any reasons for disbelieving the same. The petitioner has not denied the occurrence but has put up a counter-version which finds support from the report of the judicial inquiry. The alleged occurrence had taken place on 22-11-1981 whereas the complaint was filed on 8-5-1982. The petitioner who is a Sub-Inspector Police remained on pre-arrest bail during the trial and there has been no allegation against, him of abusing the concession of bail. Despite his conviction he has not been suspended from service. The State is not supporting his conviction, but on the contrary is supporting the appeal filed by him and has prayed for his acquittal from the charge. As already stated above the deceased had a criminal history and was involved in a number of criminal cases.
According to the version of both the parties the occurrence took place when the petitioner had asked the deceased to subject himself to search. Though deeper appreciation of to evidence and other material cannot be made at this stage but in the peculiar circumstances of the case, we feel inclined to suspend sentence 3 of the petitioner on the ground that the plea of self-defence raised by him needs serious consideration. He shall be released on bail subject toy his furnishing security in the sum of Rs.50,000 (fifty thousand only), to with two sureties in the like amount to the satisfaction of Deputy Registrar (Judicial) of this Court.
We further direct that in the peculiar circumstances of the case when the petitioner is still on the service roll of the Police Department, the main appeal be also fixed for final disposal soon after summer vacation.