' M. JAVED BUTTAR, J.--- The sentence of the petitioners was suspended and they were ordered to be released on bail by a short order of this Court for the reasons to be recorded later which are as follows:--
2. The petitioners Allah Yar and Phulan seeking suspension of sentence, alongwith four others faced their trial in case F.I.R. No,47 of 1991 under section 148/149/307/325/326, P.P.C. Police Station Chani Goth before the learned Additional Sessions Judge at Bahawalpur who vide his judgment, dated 29th of June, 1994, acquitted the co-accused, and convicted the petitioners as under:--
(i) Petitioner Allah Yar was found guilty under section 337-A(ii), P.P.C. For having caused injuries to Fida Hussain P.W., and was sentenced to Arsh being 5% of Diyat amounting to Rs,8,530 with five years' R.I. For causing injuries to Faqeer Bakhsh P.W., petitioner was sentenced to Arsh being 5% of Diyat amounting to Rs,8,530 with five years' R.I. Under section 337-A(ii), P.P.C. Under the same charge, petitioner was also sentenced to Arsh being 5% of Diyat amounting to Rs,8,530 with five years' R.I. For causing injuries to Bashir Ahmad P.W. All the sentences were ordered to run consecutively.
' Petitioner Phulan was found guilty under section 337-A(ii), P.P.C. For having caused injury to Adbul Hameed P.W. And was sentenced to Arsh being 5% of Diyat amounting to Rs,8,530 with five years R.I.
Arsh was ordered to be paid in lump sum, and in case of its failure, it was directed' that the convicts shall be kept in jail till the recovery of Arsh in the same manner as if sentenced to simple imprisonment. The amount of Arsh was to be paid to the victim, or if victim dies, to his heirs. Both the convicts/petitioners were however, held entitled to the benefit under section 382-B, Cr.P.C.
3. Trial of the case was held by the learned Additional Sessions Judge at Bahawalpur, because the cross-case under section 302/324/148/149, P.P.C. Arising out of F.I.R. No, 46/94 was also being held by the said Court, in which, petitioner Phulan is the complainant in regard the same occurrence.
4. The prosecution case as narrated by Faqir Bakhsh P.W.2 in Exh.PA./1, is that on 25th of April, 1991, Allah Yar, Jamil, Rafiq, Phulan, Allah Nawaz, Mustafa and Rab Nawaz while variously armed came in front of the house of the complainant, and called him out, who came to them, whereupon, he was complained by Phulan that Fida Hussain P.W. That he had cut jokes with his niece Mst. Sakina, which was controverted by complainant by saying that aforesaid Sakina was the niece of Fida Hussain, and that niece was always like a daughter. It is submitted that Phulan accused was not persuaded with the explanation tendered by complainant, which resulted in exchange of abuses between the parties. The noise attracted Fida Hussain, Atta Hussain, Gada Hussain sons of complainant, Hameed and Bashir both maternal-nephews of the first informant, Ahmad Bakhsh, the sister's husband of the complainant and Abdul Sattar and Muhammad Iqbal paternal- nephews of the complainant to the spot. On the sight of the aforesaid persons, Phulan accused remarked that Fida Hussain had come, and he should be done away with, whereupon, Allah Yar inflicted hatchet blows on his head and face. Allah. Yar also gave hatchet blows to complainant on his head. Allah Nawaz then caused Dang injuries on the left hand of Atta Hussain. Jamil accused inflicted injury on the head of Gada Hussain with sword. Allah Yar accused inflicted injury with hatchet on the head of Bashir Ahmad. Phulan accused (petitioner) caused injuries with his Dang on the head, back of chest and face of Nazir Ahmad. Then Rafique accused gave a brickbat blow hitting Ahmad Bakhsh's right eye. Phulan accused (petitioner) again caused Dang blow to Abdul Hameed and Rab Nawaz (deceased) caused Dang blow to Iqbal while Mustafa kept on firing in the air. The hue and cry raised attracted Amir Bakhsh, Zawar Hussain and Ghulam Sarwar who came to the rescue of the injured victims.
5. A cross-case had also been registered against complainant party on the complaint of Phulan petitioner in F.I.R. No,46/94 under section 302/324/ 148/149, P.P.C. They were tried for having caused the death of Rab Nawaz deceased, and for having caused injuries to Halima Bibi, Muhammad Rafique, Allah Yar (petitioner), Nazir Ahmad, Muhammad Jamil and Phulan (petitioner). In the afore-referred murder case, vide his judgment of even date, the learned Additional Sessions Judge, Bahawalpur convicted Fida Hussain under section 302-A, P.P.C. For having committing Qatal-e- Amd of Rab Nawaz deceased, and thus, sentenced him to death. Six of his co-accused were also convicted under various sections for causing injuries to P.Ws.
6. We have heard the learned counsel for the petitioners as well as the learned counsel for the State. The latter has vehemently opposed this petition.
7. In support of this petition the learned counsel contends that the offence under section 307, P.P.C.
With which the charge was framed did not exist on the Statute at the time of its framing, on account of Criminal Law (Second Amendment) Ordinance, VII of 1990 which came into force on 3rd of October, 1990, whereas the charge was framed against the petitioners at a subsequent stage and as such the petitioners have been illegally convicted under section 337-A(ii) of the P.P.C. It is also contended that the plea of self-defence has been rejected by the trial Court without assigning any reasons and that the prosecution evidence suffers from material contradictions and the injuries attributed to the petitioners are simple in nature whereas the petitioners have suffered grievous injuries at the hands of the complainant party.
8. We have given our anxious consideration to the contention raised by the learned counsel for the petitioners and learned counsel for the State. There is no bar to the tentative assessment of evidence on the basis of which finding of guilt is given, for the purpose to consider the application for suspension of sentence under section 426, Cr.P.C. A Division Bench of this Court in Altaf Hussain Shah v. The State 1986 PCr.LJ 2202 held that the power and discretion of the appellate Court to grant bail is not fettered or restricted by reference either to the conviction or sentence passed against the appellant but this discretion must be exercised judicially. In this case the sentence was suspended because the plea of self-defence needed serious consideration. Similarly in Zahid Mushtaq v. The State 1994 PCr.LJ 1516, it has been held by this Court that:-- "The tentative assessm ent of evidence on the basis of which finding of guilt is given is not debarred while considering the application for suspension of sentence under section 426, Cr.P.C."
' Reliance in this regard can be made to Abdul Ghaffar v. Anwarul Hassan 1978 SCM R 149. In Abdullah Khan v. Sardar Khan and another 1968 SCM R 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 an 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. Similarly Faqir Muhammad v. Akbar etc. 1979 SCM R 270 may also be cited where the High Court suspended the sentence of a convict sentenced to imprisonment for life on the plea of self-defence needing further examination in view of fairly large number of injuries sustained on accused's side, having not been explained by the prosecution and the Supreme Court refused to interfere with the said order. In Haji Mir Aftab v. The State 1979 SCM R 320 the Supreme Court suspended the sentence of a convict sentenced to imprisonment for life.
Similarly in Hazrat Ullah v. The State 1979 PCr.LJ 1104, the sentence of death of a convict was suspended by a Division Bench of this Court and he was released on bail.
9. In the instant case while rejecting the plea of self-defence the trial Court prima facie has not given any convincing reasons whereas the medical evidence brought forward shows that the injuries attributed to the petitioners are simple in nature and the petitioners have suffered grievous injuries at the hands of the complainant party. Furthermore, the petitioners side lost Rabnawaz who suffered five fire-arm injuries on his body. Mst. Haliman wife of Allah Yar petitioner suffered four injuries including fracture of skull. Muhammad Jamil from petitioners' side suffered seven injuries with multiple fracture of skull. In these circumstances we feel that the plea of self-defence needed examination. We have also noted that there is an ambiguity in regard to the place of occurrence.
10. After carefully examining the judgment under appeal and for the reasons mentioned above the petitioners have made out a case for grant of bail. We also note that the petitioners remained on bail during trial, without any complainant with regard to the abuse of bail. In these circumstances the sentence of the petitioners is suspended and they are ordered to be released on bail. It is also clarified that we have deliberately not made any express assessment on prosecution case to avoid pre-judging hearing of appeal.