1. ' This is an application under section 426, Cr.P.C., for suspension of the sentence of the appellant till the disposal of the appeal.
2. ' Mr. Rizvi for the appellant has contended that in all there are two eyewitnesses of the incident one is complainant Fareedur Rehman, brother of the deceased Mst. Tasleem and another is Munsif Khan while the third eye-witness Nawab Khan, husband of the deceased has chosen to remain absent and was not examined in the Trial Court. Learned counsel has also contended that appellant had no intention to cause the murder of deceased Mst. Tasleem but as she had thrown rubbish at the appellant so he alleged to have in the spur of the moment inflicted chhuri injuries which caused her death, so it is the case of sudden provocation. Learned counsel has argued that report of the chemical analyser regarding blood-stained chhuri/knife of the appellant is in negative and there is no clear report regarding blood-stained cloth of the deceased by the chemical analyser. Learned counsel has also argued that blood-stained chhuri as well as blood- stained cloth were sent by the Investigating Agency to the chemical analyser after an unexplained lapse of seven (7) months. Learned counsel has also contended that post-mortem reports Exh.7/1 and Exh.7/2 were not signed by Dr. Khalil Ahmed, who is alleged to have conducted the post- mortem of the deceased. Learned counsel has also argued that both the mashirs of recovery of chhuri are not the respectful persons from the locality but are from different district of Karachi.
3. Learned counsel lastly contended that the learned Trial Court has misread the evidence and have not appreciated the fact that appellant was provoked by the deceased by throwing the rubbish at the appellant, who in the state of grave and sudden provocation inflicted two knife blows to the deceased.
4. ' Learned counsel in support of his case cited a number or unreported cases of this Court 1. Ameer Afzal and 3 others v. The State (Cr. Appeal No,191 of 1995) S. Aftab Ahmed and another v. The State (Cr. Appeal No,175 of 1995), 3 Muhammad Akram v. The State (Cr. Appeal No,97 of 1994),
4. Peer Bux v. The State (Cr. Appeal No,192 of 1994), Muhammad Rafique v. The State. (Cr Appeal No, 155 of 1994) and S. Muhammad Aqil and another v. The State (Cr Appeal No,48 of 1995). In all these cases sentence of the appellants uncle, section 426, Cr.P.C. Were suspended and the appellants were released on bail subject to their furnishing sureties.
5. ' Mr Zawar Hussain Jaferi, A.A.-G. For State has opposed this application.
6. ' I have heard both the learned counsel and perused the record. That the case of the prosecution is that complainant Fareed-ur-Rehman, brother of the deceased Mst. Tasleem, on 21-1-1992 at about 7:30 p.m. Had gone to his deceased sister's house at Manzoor Colony where Mst. Tasleem and her husbanc Nawab Khan were employed in Al-Farooque School adjacent to their house That at about 8.00 p.m. Mst. Tasleem went to throw the rubbish of the school it the street and complainant heard the voice of this sister as she was crying for help. The complainant came out and saw that appellant Naveed Jeol alias Guddc was holding a chhuri in his hand and was abusing Mst. Tasleem saying that as to why she had thrown rubbish on him and that appellant inflicted two chhuri blows on the body of Mst. Tasleem. That at the time of cries 01 deceased 1. Jameel Riyaz, 2, Waheed Zafar,
3. Munsif Khan and Nawab Khar also came there. That they all tried to catch hold of Naveed Jeol but he succeeded in running away from the scene of offence alongwith chhuri Thereafter, complainant went and lodged the report at Police Station Mahmood Abad at 10:45 p.m. That on 22- 1-1992 appellant was arrested on the pointation of complainant Fareedur Rehman. That on 26-1- 1992 police secured the chhuri from the appellant in presence of mashirs Muhammad Sharif and Abdul Rasheed, which was digged out from the ground and police sent the blood stained sweater, earth and chhuri of the appellant for chemical examination. Tha complainant Fareedur Rehman, brother of the deceased was examined, in the Court and second eye-witness Munsif Khan was also examined in the Trial Court and he has admitted that he has no tenancy agreement for the rented house is which he was putting up neither he produced National Identity Card for whit learned counsel for the appellant has alleged that he is not from the locality an he has not witnessed the incident or he is the chance witness.
7. ' It is pertinent to note that Nawab Khan, husband of the deceased although shown as eye-witness in the F.I.R. But has chosen to remain absent and was not examined which proves that he is not supporting the case of a complainant. That deceased was killed by Naveed Jeol or some unidentified persons as incident has taken place in the dark night at 10.00 p.m. In the month of January. That report of the chemical analyser regarding blood-stained chhuri (knife) is in negative and even chemical analyser has not given clear report whether cloth of the deceased were blood- stained or not.
8. ' As appeal is pending and there are chances that appellant may be acquitted or awarded lesser punishment, as such, he cannot be compensated for the time he remained in jail, but if found guilty he can serve out the sentence. Bail or suspension of sentence should not be withheld as a matter of rule but the discretion is to be exercised judiciously as liberty of the individual is to be jealeously guarded, and not unnecessarily restrained unless there are strong grounds.
9. ' Accordingly, sentence of the appellants, who is in jail, is suspended.' He shall be released on bail subject to his furnishing one surety in the sum of Rs,200,000 (two lacs) with P.R. Bond in the like amount to the satisfaction of the Trial Court.
10. ' Application disposed of.