1. ' The appellants have been convicted under section 304(1), P.P.C. And sentenced to suffer imprisonment for life and pay fine of Rs,5,000 or in default to suffer R.I. For six months more and also convicted under section 324, P.P.C. And sentenced to suffer R.I. For two years and fine of Rs,2,000 or to suffer further R.I. For two months in default. The appellants being aggrieved by the said judgment preferred the appeal and also filed present application for suspension of sentence awarded to them.
2. ' The allegations against the appellants are that on 30-1-1989 they alongwith co-accused Iqbal Ahmed and Manzbor Ahmed caused fire-arm injuries to Muhammad Ali, Ehsan, Zulfiqar Muhammad Bux and Umed All resulting death of Umed All Muhammad Ali, Ehsan and Zulfiqar.
3. Motive of the fight as alleged was that on the previous day appellants had asked Ghulam All not to pass near their house. In the fight the appellants themselves also received injuries and a direct complaint was filed by them against the complainant party but it ended in their acquittal.
4. ' Learned counsel for the appellants contended that both the appellants were on bail during pendency of the trial. Appellant Aftab Ahmed was granted bail on the point of his health whereas appellant Javed was granted bail by the High Court in Criminal Bail Application No,435 of 1989 on the point on plea of self-defence in counter cases where it was yet to be determined as to which party is aggressor.
5. ' It was contended that condition of Aftab Ahmed is such that his detention in Jail is detrimental to his life, and that appellant Javed is also eutitled for the suspension of the sentence as the learned trial Judge in his judgment has held that the complainant party is aggressor and that appellant has a right of self-defence but of course has exceeded it in exercising the same. He further submitted that at an appellate stage there is no apprehension of tampering of evidence, and that sentence of life imprisonment will not be a bar for suspension of sentence, as under section 304(1), P.P.C. Sentence awarded for the offence is generally less than seven years.
6. ' Learned A.A.-G. Concedes to grant of bail to appellant Aftab Ahmed on the ground of his bad health but opposed the same for Javed on the ground that he has been sentenced to suffer life imprisonment.
7. ' Heard the learned counsel for the appellants and AA.-G.
8. ' Sentence of life imprisonment is no bar against the suspension of sentence. Each case is to be decided on its own merits. Learned counsel for the appellants has relied on case of Abdul Ghaffar v.
9. Anwarul Hasan 1978 SCMR 149 where it has been held that appellant can be released on bail pending decision of appeal in a murder case though he has been convicted for life imprisonment.
10. Some view is taken by D.B. Of this Court in an unreported case of Aijaz and Jajji v. The State (Criminal Appeal No,54/90) and in Muhammad Aslam v. Yaqoob and another 1984 SCMR 103. Thus it is clear that while suspending the sentence the quantum of punishment awarded is no bar and the Court has discretion to suspend the sentence but such discretion is to be exercised judiciously looking to the circumstances of each case.
11. ' So far case of Aftab Ahmed is concerned, it is evident from the record that during pendency of the trial, he was referred to Head of Department of Cardiology and Professor Dr. Nazir Ahmed Memon, Head of Cardiology Department, P.M.C., Nawabshah vide his certificate dated 16-4-1989 had opined that "applicant has moderately severe Aortic stenosis. Stress of any kind mental or physical including staying in jail can induce arhythemis producing a fatal result. Hence his stay in jail can be detrimental to his life. Treatment will be surgical valve replacement at some stage". To confirm this opinion of the Cardiologist a Medical Board under the Chairmanship of Medical Superintendent, Services Hospital and Civil Surgeon, Karachi was constituted. The said Board vide its report dated 4-6-1989 opined that "accused Aftab Ahmed is suffering from dominant aortic stenesis with vild aortic incompetence". On the basis of this he was granted bail by the trial Court. He is referred for medical examination by this Court also when he filed present application for suspension of sentence, and the report of Cardiologist dated 6-11-1995 indicates that he is suffering from the same disease and his detention in jail is detrimental to his life. Learned Advocate for the applicant has referred to the case of Muhammad Nawaz and another v. The State (NLR 1984 (Criminal 254), Muhammad Ismail v. The State (PLD 1985 Lah. 68) and an unreported Order of this Court in case of Syed Jafar Hussain v. The State (Criminal Appeal No,5/91) and Imamuddin and another v. The State (Criminal Appeal No,26/1993). In all these cases though the sentence was for life imprisonment but was suspended on the ground that detention of the accused in jail was detrimental to his life. In the instant case the applicant is suffering from heart disease and such certificate is given by the Professor of Cardiology in 1989 confirmed by the Medical Board and the certificate issued recently also disclosed that condition of appellant Aftab Ahmed to be same, as such, his detention in jail will be detrimental to his life.
12. ' So far case of appellant Javed is concerned the trial Court has clearly held as under:-- "All the four deceased and the witnesses examined by the prosecution are not resident of the locality and they had assembled in Otaq on the day of incident, proves that their intention was to take revenge from accused Javed for the insult of Ghulam Ali."
13. ' It has been further held that:-- "I am in conformity with them that the complainant party including the deceased made an assault at the accused Javed and Aftab while sitting in the hotel as such they are aggressor and accused Javed and Aftab have acted a right of self-defence for their person."
14. ' Appellant Javed in his 342, Cr.P.C. Statement has also pleaded his right of private defence.
15. Deposition of Medical Officer Dr. Muhammad Tariq filed with the appeal disclosed that the appellant had sustained 11 injuries some of them being multiple. Some of these injuries are on parietal region while one of them was suspected slightly depressed fracture of the parietal bone in the vault. The trial Court also held appellant has right of self-defence but has exceeded. Learned Advocate for the appellant has relied on case of Faqir Muhammad v. Akber 1979 SCMR 270 where bail was granted to the appellant on plea of self-defence in view of confirmed large number of injuries in offence under section 302, P.P.C. Sentence being life imprisonment. Learned advocate has also relied on case of Aijaz v. The State (Criminal Appeal No,54 of 1990) where the appellant was convicted under section 302, P.P.C. And sentenced to life imprisonment but as it was a sudden fight, bail was granted. Bail or suspension of sentence should not be withheld as a matter of rule but C the discretion is to be exercised judiciously as liberty of an individual is to be jealously guarded, and not unnecessarily restrained unless there are strong grounds.
16. ' As the appeal is pending there are chances that appellants may be acquitted or awarded lesser punishment, as such, he cannot be compensated for the time he remained in jail, but if found guilty he can serve out the sentence.
17. ' In view of the fact that appellant Javed had a right of private defence as held by the trial Court and that complainant party is aggressor who had assembled in the Otaq near scene of incident to take revenge from appellant Javed, I am of the opinion that appellant Javed Ahmed is entitled for suspension of sentence, so also appellant Aftab Ahmed on the ground of bad health.
18. ' Accordingly sentence is suspended and the appellants who are in jail be released on their furnishing one surety each in the sum of Rs,2,00,000 and P.R. Bond in the like amount to the satisfaction of the Nazir of this Court.
19. ' These are the reasons for my short order dated 12-11-1995.