MUHAMMAD HASHIM & 3 others vs STATE

Hasnat Ahmad Khan, J.--Through this application, Muhammad Hashim, Muhammad Qasim, Ashiq sons of Jewan and Yaseen petitioners have sought suspension of sentence awarded to them by a learned Additional Sessions Judge, D.G. Khan, vide judgment dated 15.3.2006. whereby they were convicted under Section 302(b) PPC read with Section 149 PPC and sentenced to imprisonment for life. The petitioners were further directed to pay compensation of Rs, 25,000/-each to the legal heirs of the deceased. All of them were convicted under Section 324 read with Section 149, PPC also on three counts and sentenced to 10 years RI with a fine of Rs, 10,000/- RI each on three counts.

They were further convicted under Section 336/149, PPC and sentenced to five years RI.

2. According to the prosecution version 15 persons after arming themselves with blunt weapons had launched an attack upon the complainant party over a dispute of land. During the course of the said attack, life of Khadim Hussain was shortened due, to the injuries caused to him by the co- accused, while same three persons namely Muhammad Azam PW5 Imam Ullah PW6 and Ikram Ullah received blunt weapon injuries.

3. In support of this petition, learned counsel for the petitioners has contended that while lodging the FIR, the prosecution had thrown net too wide and due to the ulterior motive, 15 persons who are closely related inter-se were involved in this case; that according to the prosecution's own version none of the petitioners had caused any injury to the deceased; that co-convicts namely Hafiz Muhammad and Ghulam Mustafa have already been allowed bail by this Court vide order dated 11.5.2006 and case of the petitioners is not distinguishable from that of said co-accused; that on the basis of same evidence and same allegations Ishaq co-accused have been acquitted and therefore, the petitioners merited the same treatment but they were illegally convicted by the learned trial Court; that during the trial the petitioners remained on bail; that there is general allegations of causing injuries by the petitioner to three injured PWs namely Azam (PW.5), Inam Ullah, (PW.7) and Ikram Ullah, (PW.7); that during the investigation, all the petitioners were found innocent in the first investigation whereafter the second investigation was conducted by Muhammad Salim DSP (DW.3) who also found the petitioners innocent and in the third investigation conducted by the SSP, D.G. Khan, who had appeared as (DW.2), the petitioners once again were found innocent.

4. On the other hand, learned counsel for the complainant has opposed the bail application on the ground that deeper appreciation of evidence is not permissible at this stage. He has relied upon the cases of Liaqat and another v. The State (1995 SCM R 1819), Makhdoom Javed Hashmi v. The State (2007 SCM R 246) and Babar Ali v. Bashir Ahmad and another (2007 SCM R 184).

5. After hearing the arguments advanced by both the parties ardently and going through the impugned judgment and the of other material available on the record, we have gathered that admittedly none of the petitioners had caused any injury falling under Section 337 L(ii) P.P.O while Ikram Ullah (PW.7) had also received two simple injuries in the shape of abrasions. That shows that the said two injured PWs, who had received two injuries each on their persons had involved five persons out of whom Ishaq accused on the basis of same evidence had been acquitted. The above made discussion further reveals that the petitioners were attributed simple injuries suffered by injured PWs. The allegation against the petitioners is general in nature and the medical evidence prima facie does not commensurate with the allegation leveled by the prosecution. As mentioned above on the basis of same evidence Muhammad Ishaq co-accused had been acquitted. The case of the petitioners is not distinguishable from that of said acquitted co- accused.

6. In a latest judgment delivered by the Hon'ble Supreme Court, in a case of Raja Shamshad Hussain v. Gulraiz Akhtar and others (PLD 2007 SC 564), it has been held as under Section 426(1) though has made essential the recording of reasons in case of suspension of sentence but has not prescribed any guideline or the manner in which such a discretion is to be exercised as how and what would be the criteria.

7. For what has been stated above the application in hand is accepted and the petitioners are granted bail by way of suspension of sentence subject to their furnishing bail bonds in the sum of Rs, 100,000/- each with one surety each in the like amount to the satisfaction of the Deputy Registrar (J) of this Court.