' The petitioner/appellant Muhammad Rafique has sought suspension of sentence awarded to him vide judgment delivered by the learned' Additional SeSsions Judge, Bahawalpur on 1-2-1995.
2. The petitioner along with Muhammad Latif, Muhammad Shafi and Arshad, as, challaned and tried in case F.I.R. No,361/93 dated 28-12-1993 under section 302/336/337-A/34, P.P.C. Registered at Police Station Baghdadul-Jadeed, Bahawalpur for an occurrence of the same day in which Muhammad Hanif was murdered. The co-accused Muhammad Latif has been awarded life imprisonment, Muhammad Shafi has been awarded two years' R.I. While Arshad co-accused has been acquitted. The sentence of Muhammad Shafi appellant/ co-accused has been suspended by an order of this Court dated 27-2-1995. The petitioner has been convicted and sentenced to two years' R.I. Under section 337-L(2), P.P.C. For causing injury with 'Soti' on the right thigh of P.W.7 Muhammad Rashid. He has also been convicted and sentenced to five years' R.I. And 5% of the amount of Diyat for causing injuries Nos.2 and 3 on the head of Khushi Muhammad (not produced) with blunt weapon under section 337-A(2), P.P.C. He has further been convicted and sentenced to five years' R.I. And a fine of Rs,5,000 for causing injury to Khushi Muhammad (not produced) on his ribs leg with blunt weapon under section 337-F(iv), P . P.0 .
3. I have heard the learned counsel for the petitioner, the State and the complainant.
4. Learned counsel for the petitioner submits that only simple injuries are attributed to the petitioner. In regard to injury caused to P.W.7 Muhammad Rashid, it is contended that he has not stated anywhere in his statement as P.W.7 before the trial Court that the petitioner has caused injury to him on his thigh with 'Soti'. The recovery of 'Soti' from the petitioner has been disbelieved by the trial Court. No injury is attributed to the petitioner having caused to deceased Muhammad Hanif. There is no fracture or dislocation caused by the petitioner. The petitioner's case is at par with Muhammad Shafi appellant whose sentence has already been suspended by this Court on 27-2- 1995. The petitioner has also been given the benefit of section 382-B, Cr.P.C. And in this regard it is submitted that the petitioner was arrested on 30-12-1993 and he is behind the bars for the last one year and 10 months. It is further submitted that separate sentences for causing each injury to Khushi Muhammad are not maintainable under section 71, P.P.C. Learned counsel for the petitioner also points out that the complainant's appeal against acquittal of the petitioner under section 302, P.P.C. Was dismissed on 13-6-1995 and although his revision for enhancement has already been admitted to regular hearing but it is of no consequence as the maximum sentence under the law has already been awarded to the petitioner and if this Court, in the complainant's revision, comes to the conclusion that the petitioner has been wrongly acquitted under section 302, P.P.C. Then the case will be remanded back to the trial Court for re-trial and reliance is placed on Zahid Mushtaq v.
The State (1994 PCr.LJ 1516) in which the sentence was suspended on the ground that if ultimately re-trial of the accused was to be ordered either on the illegality in his conviction and sentence or as a result of acceptance of revision petition against acquittal of co-accused, the detention of accused pending disposal of his appeal and the said revision petition would not be justified. In the said case, the petitioner had been awarded life imprisonment.
5. Learned counsel for the State has opposed this application.
6. Learned counsel for the complainant while opposing this application, has contended that in the complainant's revision petition no enhancement is sought for petitioner's conviction under section 302, P.P.C. That was the subject-matter of appeal against acquittal which has already been dismissed. The scope of 'complainant's revision petition is the enhancement of sentence under sections 336, 337(c), P.P.C. And this Court while considering the complainant's revision petition, can enhance the sentence and the case will not be remanded back to the trial Court. The complainant's revision petition has been admitted to regular hearing because it is the complainant's case that the injury attributed to the petitioner which was caused to the deceased, had wrongly been disbelieved by the trial Court and reliance is placed on Syed Manzoor Hussain Shah v. Syed Agha Hussain Naqvi and another (1983 SCMR 775) i*8 contend that the revisional jurisdiction of this Court is very wide.
7. It is further contended on behalf of the complainant that his revision petition for enhancement has already been admitted to regular hearing and there is every likelihood that the sentences awarded to the petitioner shall be enhanced and, therefore, the sentence already awarded should not be suspended and the application should be rejected.
8. In rebuttal, in the last, learned counsel for the petitioner states that mere fact that the revision petition for enhancement of sentence has been admitted to regular hearing by this Court is no ground to refuse suspension of sentence. Reliance is placed on Aamer Naveed and others v. The State (1993 PCr.LJ 1699); wherein it was held that the issuance of notice for enhancement of sentence was no ground to refuse suspension of sentence.
9. Learned trial Court while awarding the sentence has disbelieved the recovery of 'Soti' from the petitioner. Similarly, the alleged fire-arm injury is attributed to the petitioner having been caused to deceased, has not been believed and benefit of doubt has been given to the petitioner by the trial Court. Furthermore, the injuries attributed to the petitioner on the basis of which the petitioner has been convicted and sentenced are only simple in nature. The submission of the learned counsel that the separate sentences awarded to the petitioner for having caused each injury to Khushi Muhammad cannot be maintained as section 71, P.P.C. Clearly lays down that "where any thing which is an offence is made up of parts, any of which parts is itself an offence, the offender shall not be punished with the punishment of more than one of such his offences, unless it be so expresgly provided." Illustration(a) of section 71, P.P.C. Is applicable here. The petitioner has also been given the benefit of section 382-B, Cr.P.C. And he has already undergone almost half of his sentence and the learned counsel for the petitioner has correctly placed reliance on Aamer Naveed's case, referred to supra, in which it has been held that issuance of notice for enhancement is no ground for refusing suspension of sentence. The petitioner's case is almost at par with the co- appellant Muhammad Shafi whose sentence has been suspended by this Court on 27-2-1995.
10. In view of the above discussion, the application is accepted and the sentence of the petitioner is suspended and he shall be released on his furnishing bail bonds in the sum of Rs,50,000 with one surety in the like amount-to the satisfaction of Sessions Judge, Bahawalpur.