' This is an application under section 426, Cr.P.C. For suspension of sentence of Muhammad Nawaz, son of Ghulam Haider, applicant-convict who stands convicted under section 302(b)/149, P.P.C. To undergo imprisonment for life, under section 337-F(iii)/149, P.P.C. 3 years' R.I. And under section 148, P.P.C. 3 years' R.I. He was also burdened with compensation of Rs,25,000 under section 544-A, Cr.P.C. To be paid to the legal heirs of the deceased, in default whereof to undergo 2 years' R.I. And Rs,5,000 under section 544-A, . Cr.P.C. To be paid to Muhammad Amin injured or in default whereof to undergo 6 months' R.I. This was vide judgment of the learned Additional Sessions Judge, Chiniot, dated 4-9-1995. All the sentences were to run concurrently. The benefit of section 382-B, Cr.P.C.
Was also extended.
2. The prosecution story as given in the F.I.R. Is that the land of the complainant and that of accused Muhammad Nawaz son of Ghulam Muhammad and his brothers was in the same Chak. The afore-referred Muhammad Nawaz and his brothers, used to get water illegally by irrigating their lands by making cuts in Rajbah. On 15-10-1991, Muhammad Nawaz etc. Allegedly made two cuts in the Rajbah. On coming to know about these cuts, the complainant, along with Mahla, Muhammad Amin and Lal proceeded to the place where the cuts had been made. At 7-00 a.m. When they reached near the place, accused Allah Bakhsh son of Muhammad Siddique, Nawaz, Sarfraz, Gulzar and Riaz sons of Ghulam Muhammad and petitioner Nawaz sons of Ghulam Haider armed with guns, were present. Zafar Abbas armed with rifle was also present there. Having seen the complainant and others, they started firing. First shot was allegedly made by Allah Bakhsh which did not hit anybody. Second shot was fired by Sarfraz accused which hit Muhammad Amin on his left thigh who fell down. Thereafter Nawaz son of Ghulam Muhammad fired which hit Mahla on his head on left side who also fell down. It was also alleged that Allah Bakhsh convict and Riaz hit their own companion, namely, Muzaffar Ali Shah and he died at the spot. Muhammad Amin son of Dost Muhammad received one lacerated wound and Zulfiqar alias Mahla deceased received one lacerated wound on the head which proved fatal.
3. During investigation, five co-accused absconded and only Allah Bakhsh and Muhammad Nawaz son of Ghulam Haider were tried. The ocular account in the instant case, was furnished by Muhammad Jahangir (P.W.10) and Lal (P.W.11). The prosecution also relied upon evidence of recovery of guns P.4, P.5 and P.6, Sarfraz, Riaz and Nawaz sons of Ghulam Muhammad were absconded accused. According to learned trial Court, the recoveries were not witnessed by any independent witness and since no empties were recovered from the place of occurrence, the recovery of guns was of no help to the prosecution case. As per statement of co-convict Allah Bakhsh recorded under section 342, Cr.P.C., it was their turn of water and the complainant party had made cuts and were present at the Moga. One of their servants, namely, Waris was apprehended by them. He went to the spot along with Muhammad Nawaz and Muzaffar Shah where they were attacked and in defence. Muzaffar Shah fired which hit Muhammad Amin-and Zulfiqar deceased. On his statement a case was registered vide F.I.R. No,579/91, dated 5-10-1991 (Exh.D.B.) which is prior in time. The afore-referred Muzaffar Ali according to him, was done to death by the complainant party in the said occurrence.
4. According to learned trial Court, the ocular account stood corroborated by the medical evidence as also by the motive (though according to learned trial Court not the one which was alleged by the prosecution).
5. Learned counsel for the applicant-convict has sought suspension of the sentence on the following grounds:--
(i) that the learned trial Court has convicted the applicant-convict on a mistaken belief that it was applicant-convict who fired at Mahla deceased which proved fatal. Reference was made to page 14 of the judgment wherein statement of P.W.11 Lal was reproduced to the following effect:- Thereafter Nawaz son of Ghulam Haider (absconder accused) which hit Mahla deceased on left side of his head who fell down'.
(ii) that the learned trial Court has made inconsistent observations qua recovery of gun P.6. On the one hand, while reproducing statement of P.W.8 Umar Daraz, it observed that Nawaz son of Ghulam Haider, applicant-convict led to recovery of gun P.6 whereas in para. No,12 it was observed that it was Nawaz son of Ghulam Muhammad who led to recovery of gun P.6;
(iii) that Rana Muhammad Nawaz, S.P. Range Crimes, during investigation opined that the applicant-convict was innocent."
6. Learned counsel for the State on the other hand, has vehemently opposed the prayer for suspension of sentence by submitting that applicant-convict was specifically named in the F.I.R.
And that he came armed with deadly weapons formed an unlawful assembly and therefore, he was vicariously liable for the murder of Zulfiqar alias Mahla. On a Court query, learned counsel admitted that the applicant-convict did not lead to recovery of any weapon of offence; that gun P.6 was recovered from co-accused Muhammad Nawaz son of Ghulam Muhammad who absconded during trial. Learned counsel further admitted that the applicant-convict was not connected with the motive part of the prosecution story as is evident from a bare reading of F.I.R.
Exh.P.J./1 which has been reproduced in para. 1,10.2 of the judgment.
7. I have heard learned counsel for the parties and have also gone through the record.
8. A Court of appeal while deciding a petition under section 426, Cr.P.C. Does not embark upon a deeper appreciation of evidence. But it does attend to the question whether the appraisal of evidence carried out by the learned trial Court is in consonance with law or not. However, while doing so it has ordinarily to look to the judgment itself. If it comes to the conclusion that the appraisal of evidence and the conviction recorded needed serious examination, it may suspend the sentence.
9. In Abdullah Khan v. Karam Dad Khan and another 1968 SCM R 1064 the order of the High Court was up held by the Honorable Supreme Court wherein the sentence of a convict had been suspended who was attributed Lalkara only. In Sattu Khan and others v. The State 1988 SCM R 241 the Honorable Supreme Court suspended the sentence of the convict wherein the plea of right of self-defence raised by the accused had been rejected by the High Court but the matter required serious consideration. In Mst. Latif Bibi v. Abdul Ghafoor and another 1994 SCM R 1727 the Honorable Supreme Court did not Interfere in the order of the High Court in which the sentence was suspended of a convict who was not attributed any injury to the deceased.
10. While referring to the statement of Lal (P.W.11) the learned trial Court appeared to be under a misconception that it was applicant-convict who was attributed the fatal shot. In paragraph 15 at page 14 statement of (P W.11) was reproduced to the following effect:- "Thereafter Nawaz son of Ghulam Haider (absconder accused) which hit Mahla deceased on left side of his head who fell down."
' A bare reading of para. 2 of the judgment would show that the afore-referred narration (qua the role ascribed to Nawaz son of Ghulam Haider, applicant-convict) is inconsistent with prosecution case in terms of which the fatal rather the only shot is attributed to Nawaz son of Ghulam Muhammad who absconded during trial. Admittedly, one person of the applicant-convict's side, namely, Muzaffar Ali, was killed in the same occurrence. A case was registered vide F.I.R. No,579/91 (Exh.D.B.) on the complaint of Allah Bakhsh co-convict. Five persons of the complainant party including Muhammad Amin injured (not produced) were tried and convicted under section 302, P.P.C. And sentenced to life imprisonment vide judgment, dated 2-9-1995. Taking note of the counter-version and the fact that the prosecution withheld the most important witness, namely, Muhammad Amin, injured, the learned trial Court at page 32 of the judgment, observed that:-- "It is to be mentioned here that both the sides have not come forward with a true picture about the motive for the occurrence. As there is cross-version therefore, both the sides tried their best to conceal what happened at the time of the occurrence over which this fight between the parties started and life of one person from each side was lost."
' Prima facie, the motive is attributed to Muhammad Nawaz son of Ghulam Muhammad and his brothers who used to get water illegally to irrigate their lands by making cuts in Rajbah. The concession of the learned State Counsel on this score may not be against the record. The applicant-convict was declared innocent during investigation and remained on bail during trial.
' The complainant side received only two injuries i,e, one by Zulfiqar alias Mahla deceased which is attributed to Nawaz son of Ghulam Muhammad and the other received by Muhammad Amin (not produced) which is attributed to Sarfraz accused.
It is apparent from the judgment itself that no overt act is attributed to applicant-convict in the commission of murder; prima facie, he is not directly connected with the motive part of the prosecution story; nothing incriminating was recovered from him; the F.I.R. Lodged on the statement of Allah Bakhsh co-convict for the murder of Muzaffar Ali qua the same occurrence is prior in time and the trial culminated in the conviction of five persons of the complainant side. In these circumstances, the legality of the applicant's conviction under sections 302/148/149 and 337- F(iii), P.P.C. Requires serious considerations.
11. For what has been discussed above and respectfully following the precedent case-law, the sentence of the applicant-convict Muhammad Nawaz son of Ghulam Haider, is suspended and he is released on bail provided he furnishes bail bonds in the sum of Rs,50,000 with two sureties each in the like amount to the satisfaction of learned trial Court.