' Sentence awarded to the 'petitioner is sought to be suspended who has been convicted under section 302(b), P.P.C. Read with section 149, P.P.C. And sentenced to death on ten counts i,e, nine times for the murders of nine deceased i,e, Mst. Jawai, Mst. Sahiban, Mst. Nasiran Shafqat, Mst.
Guriya, Manzoor, Zahid, Arshad, Mehdi Hassan and on tenth count under section 7 of A.T.A. On the first impression, it appears to be extremely unusual rather paradoxical to seek suspension of sentence of a convict who has been sentenced to death on ten counts as noted above but the learned counsel has come up with the plea that in fact the petitioner/appellant was not found guilty by the learned trial Judge himself and findings in this behalf have been recorded in the impugned judgment. However, subsequently when the sentence of convicted accused persons was recorded, the name of petitioner Yasin son of Walya alias Wali Muhammad, caste Phularwan, resident of Thatha Phularwan was included which according to the learned counsel crept in out of some gross inadvertence. The learned counsel in support of its plea has referred to page 45 of the impugned and second para. Of this page is reproduced as under:-- "Since charge of abetment against Yaseen, Mian Khan and Nasir Ali accused is concerned, there is nothing on the file that the aforesaid accused were found abetting their co-accused to murder Hussain, Mst. Jawai, Mst, Sahiban, Mehdi Hassan, Manzoor, Zahid, Shafqat Abbas, Arshad, Mst.
Gurriya and Mst. Nasira deceased, rather the prosecution has miserably failed to prove the charge of abetment against Yaseen, Mian Khan and Nasir Ali accused. Therefore, I acquit them from the charge of abetment under sections 109/302, P.P.C."
' After holding Yasin, Mian Khan and Nasir as not guilty for the murder of Hussain, Mst. Jawai, Mst.
Sahiban, Mehdi Hassan, Mansoor, Zahid, Shafqat Abbas, Arshad, Mst. Gurriya and Mst. Nasira deceased. Then in last paragraph of the same page i,e, 45, name of the petitioner min was included alongwith seven other co-accused as guilty for the murder of Mst. Jawai deceased. The same position continues in the subsequent paragraphs as well, thereunder, the accused convicts have been convicted and sentenced for committing the murder of Mst. Sahiban, Mehdi Hassan, Manzoor, Zahid, Shafqat Abbas, Arshad, Mst. Gurriya and Mst. Nasira deceased.
2. To further substantiate his plea that name of the petitioner was erroneously included in the list of convicts, the learned counsel has referred to the prosecution story as narrated in the F.I.R. The petitioner was stated to be not present at the place of occurrence at that time, then obviously no allegation of causing any injury or killing any of the deceased was made out against him. Further, he has referred to the charge-sheet which is a detailed document. Petitioner's name exists only in fist charge under section 109 read with section 302, P.P.C. Then the second charge under section 148, P.P.C. Has been framed wherein, the name of the petitioner is not mentioned. Even in the third charge under sections 148/149, P.P.C. Petitioner's name does not figure thereunder either. Further onward, from fourth charge up to fourteenth charge, which are under eleven heads, the accused persons who committed the murders of ten deceased have been described in detailed but the name of the petitioner does not appear there, under any of the head. The contention of the learned counsel that in fact the petitioner was shown as guilty as a result of inadvertence and no findings have been recorded about his involvement, rather findings about his innocence are there in the judgment itself.
3. As the petitioner has been sentenced to death and ten murders have been committed including men, women and child, therefore, to further satisfy ourselves we have perused the prosecution evidence as well. First Informant is Usman P.W.9 who narrated in detail the incident as took place.
Names of all the accused persons except the four unknown assailants were given in detail alongwith their respective weapons but no role whatsoever has been attributed to the petitioner nor he has been stated to be present at the time of incident. In para. 2 at page 2 of his statement, the complainant Usman (P.W.9) has given the relationships of the various accused persons inter se. In that para. Names of Yasin petitioner and Ghulam Farid are mentioned as son of Walya accused. Apart from this there is no mention or even indication of Yasin petitioner to be present or his participating in the occurrence. It is added that complainant Usman in second para. Of his statement at page 693 admitted that Yasin accused (present petitioner) was confined in District Jail at the time of occurrence.
4. Statement of Mst. Fauzia P.W.10 has also been referred and the only allegation made by her against the petitioner is that of abetment and it was stated that "accused committed the murders at the abetment of Yasin accused".
5. On a question put to the learned counsel if the name of the petitioner had been mistakenly included in the list of the victims then the same being clerical or in advertent mistake should have been brought to the notice of learned trial Judge because clerical mistakes could be corrected by him after pronouncement of the judgment. In response, it is asserted at bar by the learned counsel Mr. Munir Ahmad Bhatti, Advocate that an application was moved before the learned trial Judge by the learned counsel who conducted the trial, but the application was not entertained, however, it was remarked that after the judgment had been written and signed it would be inappropriate for him to make an alteration in the judgment. Therefore, the petitioner has been constrained to move the instant application for suspension of the sentence.
6. The learned counsel for the State had been specifically instructed to go through the file and verify the submissions made by the learned counsel for the petitioner. He after going through the file and examining the record does not convert the submissions made by the learned counsel for the petitioner. He has also verified the fact that there was no attribution or allegation against the petitioner of being present at the place of occurrence or having caused any injury to any of the deceased. The only charge against him was that of abetment, wherefrom he was ultimately acquitted as referred above.
7. Although it appears to be extremely unusual but may be on account of large number of accused and deceased a mistake was committed and the petitioner's name was included amongst the convicts. It will, therefore, be unjust to keep the petitioner confined in jail and to await the decision of the appeal. We accordingly, suspend his sentence and admit him to bail on his furnishing bail bond in the sum of Rs,1,00,000 (Rupees one lac) with two sureties each in the like amount to the satisfaction of learned trial Court.