NAZIM HUSSAIN vs THE STATE
This petition was filed by the petitioner, Nazim Hussain, seeking suspension of his conviction and sentence awarded by the Additional Sessions Judge, Rajanpur, in a case registered under Section 302/34 of the Pakistan Penal Code 1860. The core legal question was whether the petitioner was entitled to suspension of sentence and release on bail pending appeal, particularly in light of the principle of consistency and the acquittal of the co-accused to whom the fatal injury was attributed. The Court observed that the fatal injury (Injury No. 3) was attributed to a co-accused, Fooj Ali, who had been acquitted by the trial court. Furthermore, the Court noted that the sentence of another co-accused, Khalil, had already been suspended by the High Court. The Court held that the petitioner’s case stood on a better footing than that of the co-accused whose sentence was already suspended. Consequently, the Court accepted the petition and granted the suspension of the petitioner's sentence, directing his release on bail. The judgment reaffirms the principle of consistency in criminal jurisprudence, where co-accused similarly situated are entitled to similar relief regarding bail and suspension of sentence.
- Is a petitioner entitled to suspension of sentence if a co-accused with a similar or worse case has already been granted such relief?
- Does the acquittal of a co-accused to whom the fatal injury is attributed provide grounds for the suspension of sentence of another accused?
- Can a sentence be suspended pending appeal when there is no likelihood of the appeal being heard in the near future?
- Section 302, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
ORDER
' HAFIZ ABDUL REHMAN ANSARI, J.---Through this petition, the petitioner/appellant seeks suspension of his conviction and sentence awarded to him by the learned Additional Sessions Judge, Rajanpur in F.I.R. No 107 of 2005 dated 18.3.2005 offence under section 302/34 P.P.C. Registered with Police Station Jampur.
2. Learned counsel for the petitioner/appellant submits that the main accused in the case is Fooj Ali to whom main injury No,3, which was cause of death, is attributed but he was acquitted by the learned trial Court; that during the investigation, applicant was found innocent; that injury No,3 due to which death was caused was not attributed to the petitioner that was attributed to Fooj Ali, who has been acquitted by the learned trial Court; that nothing was recovered during the investigation; that in the light of evidence recorded by the prosecution there was remotest chances of upholding the conviction and sentences passed by the learned trial Court; that the allegation against the petitioner is that he had caused injury with Sota and the injury might be caused by falling from the motorcycle; further submits that the sentence of co-accused Khalil son of Palya has already been suspended by this Court vide order dated 1-7-2009 passed in Criminal Miscellaneous. No, 1 of 2009; that the case of the petitioner is identical with Khalil accused ; that the injury No,3 due to which death was caused is not attributed to the petitioner appellant; that in opinion of the doctor, injury No,3 is sufficient to cause death; that blunt weapon Sota was recovered from the petitioner; that except the last seen evidence no other witness is available on the file to connect the petitioner with the commission of offence; that the supplementary statement of the mother of the deceased recorded on 5-9-2007; that under the principle of consistency the present petitioner appellant is entitled for suspension of sentence.
3. Learned Deputy District Public Prosecutor submits that injuries Nos. 1 and 2 are caused with blunt weapon when he was confronted with the question that injuries Nos. 1 and 2 are cause of death, replied that fire-arm injury No,3 was cause of death; further submits that petitioner has a better case for suspension of sentence than co-accused, Khalil whose sentence for life already suspended in this case, there was some evidence against the Khalil. The petitioner is behind the bars, there is no likelihood of hearing of his appeal in near future, therefore, in such circumstances the petitioner has made out a case for suspension of sentence.
4. I have perused the file and heard the learned counsel for the petitioner and learned Deputy District Officer. Under the principle of consistency, conviction and sentences of co-accused, namely, Khalil son of Palya already suspended by this Court in Criminal Miscellaneous No,1 of 2009 vide order dated 1-7-2009 the case of the present petitioner is at better footing than Khalil, co- accused. Fatal injury No,3 which was declared cause of death is attributed to Fooj Ali, who was acquitted by the trial Court, not attributed to the present petitioner.
5. Resultantly, this petition bearing C.M. No,2 of 2009 for suspension of sentence of accused Nazim Hussain son of Manzoor, is accepted and the petitioner is released on bail subject to his furnishing bail bonds in the sum of Rs.1,00,000 (one Lac) with one surety in the like amount to the satisfaction of D.R. (Judi.) of this Court.