1. ' Appellant Ali Jan seeks suspension of sentence and his release on bail in a case of attempt to life in which he has been convicted by the Court of learned Additional Sessions Judge as follows:---
(a) Under section 452/34, P.P.C. Sentenced to suffer R.I. For 3 years and fine of Rs,3,000.
(b) Under section 307, P.P.C. Sentenced to suffer R.I. For 5 years and fine of Rs,5,000.
(c) Under section 326, P.P.C. Sentenced to suffer R.I. For 3 years and fine of Rs,3,000 ' All sentences passed against the appellant are to run concurrently.
2. ' Mr. Qurban Ali Chohan learned Advocate for the appellant has argued that the appellant is an old man between 75 and 80 years of age and he is also infirm and that this was the main ground before the trial Court for releasing the appellant on bail during the trial. Appellant's N.I.C. Shows his age as 75 years.
3. ' The learned trial Court has stated the appellant in para. 45 of the judgment, to be above the age of 70 years. The learned counsel has further urged that the appellant has also got a good case on merits. He has stated that besides grounds of age and infirmity, there are other lacunae in the prosecution case viz. The incident took place during the dark hours of the night but no source of light has been disclosed by the complainant. It is urged that maximum sentence awarded to the appellant being 5 years only. It is not known when the appeal will be taken up for regular hearing and till then the appellant shall suffer hardships inside jail.
4. ' The leaned counsel has relied upon PLD 1997 SC 1, 1997 Crl.LJ 220 and two unreported decisions of this Court, dated 27-7-1995 and 3-10-1997 in Criminal Appeal No,35 of 1995 (Hyderabad) re: Wahid Bux v. The State and Criminal Appeal No,54 of 1997 re: Peru and others v. The State respectively; wherein the sentences were suspended and the appellants were released on bail after considering important points of evidence.
5. ' Grounds of old age and infirmity, identification during the night hours and role of the appellant can be assessed and evaluated at the time of deciding the question of suspension of sentence.
6. ' Learned counsel appearing for the State has stated that earlier appellant's two sons namely Achar and Amir Ali and nephew namely Ahmed were tried and convicted to imprisonment for a period which they remained in jail and that period of sentence was not beyond six months. Ha has stated that the appellant at that time was absconding and was put to trial after his arrest after about five years. The learned counsel has however not been able to controvert any of the assertions made by the learned counsel for the appellant. Mr. Khanzada does not deny that the appellant has been harshly treated inasmuch as the period of sentence in case of the appellant would not have exceeded the sentence passed against the co-accused of the appellant.
7. ' I have considered the arguments advanced be the learned counsel for the parties and have also referred to the relevant pieces of evidence on the record. The complainant Shah Nawaz in his evidence before the trial Court recorded on 29-1-1990 has categorically stated that "we have compromised and forgotten our differences. It was dark night." Complainant in his evidence referred above does not disclose any source of light.
8. Viewed in the light of aforesaid facts and circumstances that appellant's two sons namely Achar and Amir Ali and a nephew Ahmed were already in jail, whether the absconded being a guilty person is a question which may be determined in the main appeal. Ascendance may be equally consistent with guilt or innocence of the accused. Reference may be made to PLD 1976 SC 629.
9. ' Keeping in view the old age of the appellant, identification in dark night and the quantum of sentence passed against the co-accused; the sentence passed against the appellant vide impugned judgment, dated 25-5-1998 was suspended and he was ordered to be released on bail by a short order, dated 10-7-1998. These are the reasons for the same. Miscellaneous Application No,498 of 1998 in this Criminal Appeal No,66 of 1998 stands allowed.