MUHAMMAD HASHIM and 3 others vs THE STATE

ORDER

Criminal Misc. No,10 of 2007 ' 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 Scissions Judge, D.G. Khan, vide judgment dated 15-3-2006 whereby 'they were convicted under section 302(b), P.P.C. Read with section 149, P.P.C. 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, P.P.C. Also on three Courts and sentenced to 10 years R.I. With a fine of Rs,10,0000 R.I. Each on three counts. They were further convicted under sections 336/149, P.P.C. And sentenced to five years R.I.

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. Darina 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 P.W.5 Imamullah P.W.6 and Ikraxnullah received blunt weapon injuries.

3. In support of this petition, learned counsel for the petitioners has contended that while lodging the F.I.R., the prosecution had thrown net too vide 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 injury to Khadim Hussain (deceased), who during the occurrence had received three injuries, out of which injury No,1 was attributed to Allah Dewaya co-convict, who had been sentence to death. According to the prosecution, Hashim, Qasim, Ashiq petitioners along with Ishaq acquitted co-accused and Bakhu co-accused had caused injuries on different parts of body of Muhammad Azam P.W.5 but the medical evidence reveals that he had received only two injuries, one on his head, the other on his forearm. Injury received by the said P.W. On his head was specifically attributed to Bakhoo co- accused, whose application for . Suspension of sentence has already been dismissed by us. So one simple injury on the arm of Azam (P.W.5) had been attributed to four accused including above mentioned three petitioners. Muhammad Ashiq co-accused, who was attributed the same role was acquitted by the trial Court. Similarly according to 'prosecution's evidence Ikram Ullah (P.W.7) and Inam Ullah (P.W.6) were thrashed by five persons namely Qasim, Ashiq and Hashim petitioners along with Yaseen co-convict and Hussain (since dead), but the medical evidence indicates that P.W.6 had received only two simple injuries 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 P.Ws. Namely Azam (P.W.5), Inam Ullah, (P.W.7) and Ikram Ullah, (P W.7), that during the investigation, all the petitioners were found innocent in the first investigation where after the second investigation was conducted by Muhammad Salim D.S.P. (D.W.3) who also found the petitioners innocent and in the third investigation conducted by the S.S.P., D.G. Khan, who had appeared as (D.W.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, Makhdoon 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 other material available on the record, we have gathered that admittedly none of the petitioners had caused any (sic) falling under section 337 L(ii) P.P.C. While Ikram Ullah (P.W.7) had also received two simple injuries in the shape of abrasions. That shows that the said two injured P.Ws., who had received two injures each on their persons had moved 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 P.Ws. 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 petitioners is not distinguishable from that of said acquitted co-accused.

6. In a latest judgment delivered by the Honourable 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 been 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 for the recording of the reasons. Since these provisions, under section 426(1) are analogous to the one contained in section 497, Cr.P.C. As in both the cases the sentence or detention is to be suspended pending hearing of the appeal/trial and the convict or the detenue is to be released on bail with only difference that in the former case the person is a convict one, already found guilty, while in the latter he has been charged only and to face trial and is still to be proved guilty".

7. While applying the litmus test laid down by the apex Court, we have no doubt in our mind that the case of the petitioners requires reconsideration and re-appraisal of the evidence. Besides, the petitioners have already undergone the sentence of more than 1-1/2 years, after their conviction.

Their appeal being tagged with a murder reference is not likely to be heard in the near future.

8. Moreover the two co-convicts involved on the basis of almost similar role have already been released on bail vide order dated 11-5-2006 passed by this Court.

9. The law cited by the learned counsel for the complainant is distinguishable from the facts of the case in hand.

10. 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.