1. Appellants Sher Khan and Mevo have sought suspension of their sentence awarded by the learned IVth Additional Sessions Judge, Hyderabad on 24-6-1999, which is in the following terms: "Accordingly, accused Haji Essa, Sher Khan and Haji Mevo are convicted for the offences punishable under sections 504, P.P.C., 337-F(i), 336 and 337-A(i) and Qisas and Diyat Ordinance read with section 34, P.P.C. And sentenced to suffer R.I. For 10 years each and to pay Rs,50,000 each as Daman to the injured Haji Mehmood. All the three accused are present on bail, their bail bonds stand cancelled, sureties discharged and they are taken into custody and accordingly remanded to Central Prison Hyderabad alongwith warrant of sentence and conviction slips to serve out the sentence awarded to them."
1. ' Learned counsel for the appellants submitted that the evidence is contradicted by medical evidence, in that all the injuries are incised wounds whereas it is alleged that co-accused Mevo gave blows with lathi. He, however, confined his arguments as to the role of appellant Muhammad Essa and pressed the bail plea only on his behalf as he was armed with a gun which was not used in the commission of the offence, but only, while returning, some fires were made in the air.
2. ' Learned counsel in support of his contentions relied on the authorities Mst. Latif Bibi v. Abdul Ghafoor and another 1994 SCMR 1227, Wasimul Haque v. The State 1999 MLD 1282 and Muhammad Aslam v. Yaqoob and another 1984 SCM R 103.
3. ' In Mst. Latif Bibi's case no injury to the deceased was attributed to the petitioner, therefore, the suspension of the sentence was not interfered with. In Wasimul Haque's case, the law was examined by this Court and principles as gathered from the authorities were enumerated and while examining the facts of the case it was observed that since the presence of the appellant at the place of incident were to some extent doubtful, the sentences were suspended. In Muhammad Aslam's case, the following observations were made by the Honourable Supreme Court.
4. "The petitioner has challenged the legality of the orders, but we fail to see any substance in it as the Court can, if it appears on the face of the judgment from a tentative opinion such as the one in the present case. It is an exercise of discretion and to all intents and purposes the opinion is tentative.
5. Accordingly, it cannot be said to be injudicious. The petitions fail and are hereby dismissed."
6. ' On the other hand, learned Counsel for the complainant placed reliance on case of Farhat Azeem v. Waheed Rasul and others PLD 2000 SC 18, wherein the case law on sections 426, 497 and 498 was elaborately discussed and the following observations were made:- "Sentence awarded by the trial Court should not ordinarily be suspended by the appellate Court unless strong grounds are made out to appear that conviction under the offence in question or any other allied offence is not liable to be sustained, but it should not be taken as a total prohibition on the power of the Appellate Court to suspend the sentence and in suitable cases it may exercise the power on the basis of the principles laid down in provision to subsection (1) to section 497, Cr.P.C.
7. As held by this Court in Maqsood v. Ali Muhammad and another 1971 SCM R 657. It was further observed in the said case that it is now well-settled that where a statute itself lays down certain principles for doing some acts they may be taken as a guideline for doing something of the same nature which is in the discretion of the Court."
8. ' In the light of the principles laid down by the Honourable Supreme Court, it is clear that in the matters of suspension of sentence each case is to be examined in the light of the facts and circumstances of that case, and in a suitable case discretion can be exercised by the appellate Court.
9. In the instant case, in the first instance the sentence suffers from anomaly, it is not clear as to what sentence has been awarded in respect of a particular section. However, the learned Assistant Advocate-General and Advocate for the complainant submitted that by virtue of section 34, P.P.C.
10. The constructive liability of appellant cannot be overlooked. This argument carries some weight, but prima facie it goes without saying that the gun was not used in the commission of offence and there is no gunshot injury and so also the fires whatsoever were made on return. If this fact could be considered at the time of examining the bail plea under section 497(1), Cr.P.C., the same benefit cannot be withheld at this stage in view of the law discussed above.
11. ' I am convinced that for the purpose of appellant Haji Muhammad Essa, case for suspension of sentence is made out. Accordingly application is allowed to this extent, and he may be released on bail on furnishing surety in the sum of Rs,1,00,000 (One Lac) and P.R. Bond in the like amount to the satisfaction of Additional Registrar of this Court. The bail plea on behalf of appellant Sher Khan is rejected.
2. The appeal be fixed according to roster.