ORDERCh. GHULAM SARWAR, J.- Muzaffar Hussain alias Pehlwani being accused in a case under section 302 P.P.C, was sentenced to life imprisonment and a i.e of Rs. 20,000/- and in default thereof, he was to undergo one year's R.I. He was also convicted under Section 324 P.P.C, and sentenced to undergo two years R.I. The benefit as provided under Section 382-B was also given to him.
2. The brief facts of the case are that a case FIR No. 234 dated 19.9.1988 was registered against the appellant, his two brothers, namely, Munawar Hussain and Mulazam Hussain and Muhammad Arif for the offence under Section 302/34 P.P.C, with the allegation that when Ishfaq deceased reached near the comer of the street, Muhammad Arif, Mulazim Hussain and Munawar Hussain and the petitioner suddenly appeared at the scene of occurrence. The petitioner was allegedly armed with dagger, whereas Munawar Hussain was armed with Sota, Muhammad Arif and Mulazim Hussain were empty handed. Muhammad Arif co- accused raised a Lalkara whereupon Mulazim Hussain held the deceased and the petitioner gave a dagger blow which landed on the back of the deceased near right side of his ribs, as a result of, which he fell on the ground. Thereafter Munawar Hussain gave a sota blow to the deceased hitting his left wrist and he became unconscious.
3. It was argued by learned counsel for the petitioner that a period of 2 years has passed but the appeal of the petitioner has not come up for hearing so he has earned the benefit under Section 426(1-A) Cr.P.C, and he is entitled to be released on bail after suspension of the sentence. Reliance in this behalf has been placed upon so many judgments of the Supreme Court and that of this Court wherein after expiry of the statutory period of two years the accused who were convicts of life imprisonment were granted bail It was added that the delay caused in the adjudication of the appeal has not been caused by any act or omission of the petitioner. Even otherwise it was argued that according to the observation recorded in para 21 of the judgment the case at the most could be made out of culpable homicide not amounting to murder and the petitioner could be convicted under Section 304 P.P.C.
4. The application was opposed by the learned counsel appearing on behalf of the State.
5. After having heard both the sides, I have also gone through the record. I find that in para 7 of the judgment, the learned trial Court has found that who versions of the present occurrence have been furnished, one alleged by the eye-witnesses and the other by the police officer, who conducted the investigation of this case. The learned trial Court has not believed the version given by the eyewitnesses rather he has found the version given by the police as correct version of the present occurrence which he has narrated in para 18 of the judgment. Whether the learned trial Court could do so under the law or not, the in is dixit of the police being inadmissible so not binding on the Court is a question which cannot be answered at this stage, lest it may prejudice the case of either party or prejudge the appeal. However, I find in para 21 that the learned trial Court has also found that the petitioner is a young person at the age of 22 years and if at all there was a feeling of averseness on account of his as well as his mother's disgrace and humiliation at the hands of the complainant party, he had a good ground to vindicate it. Prima-facie in view of this finding of the learned trial Court, it was argued that at the most the case against the petitioner could be made out of culpable homicide not amounting to murder.6. In view of the fact that a period of more than two years' has passed and the appeal of the petitioner has not been fixed and the delay in the adjudication had not been occasioned by any act or omission of the petitioner so I am inclined to suspend his sentence and direct that the petitioner be released onbail, if he furnishes bail bond in the sum of Rs. 50,000/- with one surety in the like amount to the satisfaction of the A.C./llaqa Magistrate concerned.