1. ' Appellants Ranjho, Jan Muhammad, Bhai Khan and Bachal seek suspension of their sentence awarded to them vide judgment dated 5-10-1995 by the learned Ist Additional Sessions Judge, Khairpur, convicting and sentencing them to suffer imprisonment for life and a fine of Rs,10,000 or in default to suffer R.I. For one year more, under sections 302, 147, 148 and 149, P.P.C.
2. ' The brief facts constituting the appeal are that on 1-7-1982, S.H.O. Gambat P.S. Challaned the appellants in the abovementioned sections in the Court of Civil Judge & F.C.M. Gambat, who forwarded the challan to the Court of Sessions Judge, Khairpur, wherefrom it was transferred to the Court of Ist Additional Sessions Judge, Khairpur for disposal. The prosecution story is that complainant Kareem Bux lodged entry in Roznamcha at PP Ranipur on 15-5-1981, it was incorporated in 154, Cr.P.0 book at P.S., Gainbat as Crime No,196 of 1981. Complainant stated in the FIR that previously he used to live at Kanri Pathano and he married with one widow Mst. Bachal about 15/16 years ago and in exchange he agreed to give the hand of his niece to Jurio Larik.
3. ' About few years ago Ranjho and complainant's son from the formal wife namely Bhai Khan Larik detained complainant's wife and demanded SAMG' as promised in exchange. On this there erupted enmity in-between them resulting in litigation and therefore complainant and his brothers shifted to Ranipur. On the day of the lodging of the F.I.R. Ai evening time complainant, his nephew Ghous Bux and other relatives namely Ghulam Nabi and Arbab had gone to see fair (Mela) of Pir Mandi Shah and while returning back when reached at about 8-30 p.m. At Sobhodero pacca road near tubewell, complainant proceeded ahead whereas the others waited at a tubewell in order to quench their thirst. There appeared appellants Bhai Khan, and Jan Muhammad both sons of Khan Muhammad armed with hatchets, appellants Ranjho and Bachal with guns and co-accused Mehram with Lathi. They challenged the complainant party that they will not be spared saying so the appellant Ranjho tired from his gun directly at them which they missed and fire hit to an unknown person corning at tubewell, who raised cries and fell down and then appellant Bhai Khan and his brother Jan Muhammad caused hatchet blows from the sharp side to Ghous Bux.
4. Complainant parry raised cries, and tried to rescue but accused Muharani caused Lathi blow to Ghulani Nabi on head and seeing the other persons carne running from the fair appellants lied away. Ghous Bux was found tv have sustained hatchet injuries on lace and other parts of the body and succumbed to the injuries and was bleeding. Unknown person sustained fir-ann injuries on head too had died, was identified by the persons to be Allan Wasayo son of Nihal Phulpoto.
5. ' During the pendency of the trial co-accused Muharani expired and the proceedings abated in his respect.
6. ' Mr. S. Mushtaque Hussain Shah learned counsel for the appellants based his arguments on the following points:--
(i) That the trial Court has not applied its mind by appreciating and assessing the evidence against the appellants while convicting them.
(ii) That P.W. Injured Ghulam Nabi has not been examined at the trial and was given up.
7. Presumption can be inferred that he was not going to support the case of the prosecution, therefore he was given-up.
(iii) That there is contradiction in ocular and medical evidence. Complainant Kareem Bux has deposed that appellant Ranjho fired from his gun which hit to one passerby. Appellants Bhai Khan and Jan Muhammad caused hatchet blow to Ghous Bux. Appellant Ranjho made another fire from his gun which was received by P.W. Ghulam Nabi at his finger. P.W. Arbab stated at trial that appellant Bhai Khan and Jan Muhammad gave hatchet blow to Ghous Bux. Ranjho and Bachal fired from their guns which hit a passerby later on known as Phulpoto.
8. ' The appellants' counsel referred to the evidence of Doctor pointing that above ocular evidence is contradicted by medical evidence because deceased Allah Wasayo has received two fire-arm injuries and deceased Ghous Bux irrespective of five incised wounds have sustained two lacerated wounds for which there is no explanation. P.W. Ghulam Nahi has not received any fire-arm injury but only two bruises have been noted by the doctor on his body.
9. ' The appellant's learned counsel referred to the cases reported in 1987 PCr.LJ 2254, PLD 1978 SC 256 and 1969 SCM R 81 in support of his contentions and urged for the suspension of sentence.
10. ' Mr. Nidamuddin learned State Counsel vehemently opposed the contentions of the appellants' counsel and stated that all the P.Ws. Have fully supported the case of the prosecution at the trial and the points urged on behalf of the appellants relate to the merits of the case, which require deeper appreciation of the evidence. It will, therefore, be improper and will prejudice the case of the complainant if some findings for the suspension of the sentence are made at this stage.
11. The points raised by appellants' counsel need examination of evidence in detail, will amount to the appraisal of the evidence and discussing the same on merit is unwarranted by law while deciding application under section 426, Cr.P.C. En this case, the witnesses examined at the trial have supported the case fully. The contradictions referred by the appellant's counsel cannot be considered at this stage as the scope of assessing the evidence under section 426, Cr.P.C. Is limited, Appellants' counsel has not been able to point infirmities in the judgment apparent on its face which maintain to show that conviction and sentence are not sustainable in law. The precedent case law referred to by the learned appellants' counsel is distinguishable and is therefore not of much help to them in the present case.
12. ' In the case of Hakim Ali v. The State 1987 PCr.LJ 2254, Lahore High Court has suspended the sentence when the petitioner attributed role of putting a Safa around the neck of deceased and pulling him and that too was falsified by medical evidence. In the case of Khalid Jawed Jelani v.
13. The State PLD 1978 SC 258, the bail application was filed under section 497, Cr.P.0 and not under section 426, Cr.P.C. In this citation the Honourable Supreme Court has made observations to refrain directly or indirectly from giving any conclusive finding of the guilt or innocence of accused by the assessm ent of evidence. In the case of Bahram Khan v. The State 1969 SCM R 81, the Supreme Court has refused leave to appeal against the order of High Court of West Pakistan, Lahore refusing to suspend the sentence under section 426, Cr.P.C.
14. For what has been discussed above, I do not see any justification to allow this application at this stage, which is hereby dismissed.