RAJA MUHAMMAD SABIR, J.- Petitioner Ghulam Haider seeks suspension of his sentence awarded to him by the learned Sessions Judge Jhang vide judgment dated 25.2.1998.
2. Brief facts of the case are that the petitioner was charged under Section 302 PPC for the murder of his wife Mst. Amna Bibi. The F.I.R. (Ex-.PF) was lodged by the complainant father of the deceased with Police Station Qadirpur District Jhang on 30-8-1996 stating that Mst. Amna Bibi (deceased) was married with Ghulam Haider 10/11 before the occurrence. Out of this wedlock a son was born who is aged 7/8 years. On 30-8-1998 the complainant alongwith Lai Din P.W.' and Falak Sher (given up PWs.) went to the house of the deceased. She was there in the house. At about 3.30 p.m. All of a sudden the petitioner armed with .30 bore pistol came there and shouted that he would teach a lesson to her for giving his household articles to her father. Within the sight of the P.Ws, the accused find two consecutive shots from his weapons which landed at her head and right eye. The deceased on receipt of the injuries died at the spot. The complainant and the P.Ws, tried to catch the accused but he threatening that whosoever came near would meet the same fate and waving the crime weapon fled away. The deceased was 6-7 months pregnant. The motive alleged in the F.I.R, is that the accused had suspicion that the deceased had given his house hold effects/ornaments to her father. The complainant tried to clear his position earlier in this behalf but the accused was not satisfied.
3. During the trial the petitioner denied the allegations. He stated that he had been falsely implicated in the case. Learned trial Judge believed the prosecution evidence. He convicted the petitioner under section 302 PPC and ordered to pay Diyat to the legal heirs of the deceased equivalent to the value of 30630 grams of silver, and to undergo 14 years' R.I. As Tazir. It was directed that under section 331, PPC the accused would pay the diyat in lump sum and in case of his failure to do so, he should be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment until the diyat is paid full vide the judgment dated 25.2.1998.
3. The petitioner has challenged his conviction and sentence by filing the instant appeal before this Court on 24.3.1998.
4. Learned counsel contends that the complainant PW-6 specifically stated in the F.I.R, that two shots were find by the petitioner which hit the deceased but according to the medical evidence there was one fire-arm injury on her person. According to medical report injury No. 1 is entry wound and injury No. 2 is exit would. Dr. Kausar, WMO (PW-1) has specifically stated that there was only one I ire-arm injury on the person of the deceased. The ocular account is in conflict with the medical evidence and this fact is apparent on the face of the record, therefore, petitioner is entitled to suspension of his sentence. He further submits that the other eye-witnesses Lai Din, sister's son of the complainant and Falak Sher, his cousin have been given up as allegedly won over whereas in fact they did not want to support the false version of the complainant and for that reason they were not produced. He lastly submits that the petitioner was arrested soon after the occurrence and he is in jail for the last about two years.
5.Learned Assistant Advocate General has opposed the petition and contends that under sub- section (1) of section 331 PPC, this petition can only be made after three years of the date of sentence. The petitioners having not paid the diyat his petition for suspension of sentence is not maintainable. After expiry of said period, he may be kept in jail and dealt with in the same manner as if sentenced to simple imprisonment. On merits he submits that the contentions raised by the learned counsel for the petitioner relates to deep appreciation of evidence, which cannot be made at this stage.
6. I have heard the learned counsel for the parties and gone through the record. Under Section 331(1) PPC diyat may be made payable in lump sum immediately after pronouncement of the judgment or in instalments spread over a period of three years and if the same is not paid within the period of three years from the date of the judgment under sub-section (2) the convict may be kept in jail as if he was awarded simple imprisonment until the diyat is paid full or released on bail on furnishing adequate security. The provisions of section 331 PPC do not debar this Court to suspend the sentence of the accused if otherwise a case is made out for releasing him on bail. The objection of the learned counsel that this petition is not maintainable is without any substance and is over-ruled.
7. The contentions of the learned - counsel that the statement of complainant Amir PW-6, father of the deceased, which was relied upon by the learned trial Judge is in conflict with the medical evidence and that the occurrence is an un-witnessed one cannot be deeply appreciated at this stage. However, tentative assessm ent of statement of the complainant and the medical evidence shows conflict in them. It has been held in Zahid Mushtaq v. The State (1994 P.Cr.L.J. 1516 Lahore (D.B.)) that tentative assessm ent of the evidence for the purposes of adjudication of application for suspension of sentence is permissible. The petitions is in jail for the last more than two years. His appeal is not likely to be heard in the near future. From the peculiar facts and circumstances of the case without deeply touching the merits of the contentions raised by the learned counsel, I am of the view that a case for suspension of sentence of the petitioner is made out. Accordingly his sentence is suspended and he shall be released on furnishing bail bonds in the sum of Rs.3,00,000/- (Rupees three lac) with one surety in the like amount to the satisfaction of trial Court.
The petition succeeds and is allowed.