SHAH NAWAZ and another vs The STATE
This criminal matter concerns a petition filed under Section 426, Code of Criminal Procedure 1898, seeking the suspension of a sentence of life imprisonment and the grant of bail pending the final decision of an appeal against conviction for the murder of Hamid Ashraf. The core legal question was whether the petitioner, who was alleged to have raised a lalkara and held a pistol but caused no fatal injury, was entitled to bail given the medical evidence suggesting the deceased's injuries were consistent with a fall rather than the petitioner's actions. The Court held that since the fatal shot was attributed to a co-appellant and the injuries attributed to the petitioner were not contributive to the death, the applicability of Section 34, Pakistan Penal Code 1860, required serious appreciation. Consequently, the Court suspended the sentence and granted bail. The key principle laid down is that where the prosecution's case against an accused regarding common intention is questionable and the medical evidence does not support the specific allegations of injury, the accused is entitled to the suspension of sentence pending appeal.
- Can a sentence of life imprisonment be suspended under Section 426, Code of Criminal Procedure 1898, pending the final decision of an appeal?
- Does the mere presence of an accused with a weapon, without causing a fatal injury, automatically invoke the application of Section 34, Pakistan Penal Code 1860?
- Is an accused entitled to bail pending appeal when medical evidence contradicts the prosecution's theory regarding the cause of injuries?
- Section 302(b), Pakistan Penal Code 1860
- Section 544-A, Code of Criminal Procedure 1898
- Section 426, Code of Criminal Procedure 1898
- Section 34, Pakistan Penal Code 1860
' For slaying of Hamid Ashraf (deceased), petitioner-appellant, Sarfraz Ahmad along with his co- appellant Shah Nawaz was recommended for prosecution to trial followed by conviction and sentence vide judgment dated 12-10-2013, handed down by the learned Additional Sessions Judge, Rawalpindi infra:-- {{TABLE}} Under section 302(b) Pakistan Penal Code Life Imprisonment as Ta'zir for committing Qatl-e-amd of Hamid Ashraf deceased and to pay compensation to the tune of Rs,3,00,000 (Rupees three lac) as required under section 544-A, Cr.P.C.
And in default whereof to further undergo simple imprisonment for six months. {{TABLE}}
2. The petitioner-appellant as being pro-convicto, by filing the accompanying appeal has sought acquittal and through the instant petition under section 426, Cr.P.C. Has solicited for bail by suspending the quantum of sentence till final decision of pending appeal.
3. Sententiously the allegations of the prosecution are that the petitioner along with his co- appellant assassinated Hamid Ashraf by causing him fire shot injuries.
4. Learned counsel for the petitioner-appellant precative to the acceptance of instant petition has submitted that the petitioner was alleged to have held a pistol and raised a lalkara at the time of occurrence but did not cause any injury with the same to the deceased and that during the investigation, mauger enduring physical remand, pistol was not recovered from his possession; partway investigation, he was found innocent; all the injuries allegedly ascribed to him on account of grappling with the deceased have pontificately been admitted by the doctor to have been sustained by the deceased on account of fall, which are simple in nature and being not contributive to the cause of death of the deceased petition is liable to be accepted. At the end of arguments as ace, learned counsel has submitted that co-appellant has allegedly caused the death of the deceased by making a fire shot.
5. Adversarially, it has been argued that the police opinion cannot be undertaken at this stage as the learned trial court has overthrown it; injuries attributed to the petitioner are in sync with the postmortem report of the deceased; applicability of section 34, P.P.C. Has rightly been purported to its another interpretation, while punishing the petitioner and the arguments of the learned counsel for the petitioner tickle the Court to die down in the merits of the case but the law prohibits the Court particularly when in the recent past, the petitioner has been punished. Learned counsel has orchestrated his argument's by relying upon Manzoor Ahmed v. Fazal Ahmed and 3 others (2013 SCM R 1403) has venerably craved dismissal of the petition.
6. Assiduously arguments heard. Intently record gone through.
7. As per prosecution's own case, the petitioner was holding a pistol at the time of occurrence but he did not cause any injury with the same to the deceased. Mortal fire shot injury has been attributed to co- A appellant. The injuries allegedly attributed to the petitioner are simple in nature but not contributive to the death of the deceased and about the same, the doctor has explicitly opined that those might be on account of fall. For the injuries alleged against the petitioner, the learned trial Court has not convicted him. In these circumstances, when the alleged lalkara remained simpliciter, the applicability of section 34, P.P.C. Requires serious appreciation and ex facie, material/circumstances available justify accepting the instant petition. Since yore, adage of law is that the accused is a favourate child of law.
8. In view of the above, instant petition is accepted, quantum of sentence inflicted upon the petitioner-appellant is suspended, thus, he is allowed bail provided his furnishing bail bond in the sum of Rs,2,00,000 (Rupees two lac only) with two sureties each in the like amount to the satisfaction of Deputy Registrar (Judi.) of this Court.
9. Markedly it is described that the petitioner shall remain incessant in appearing before this Court till the final decision of his appeal. #EndJudgment
Cited by 1 case
- ALI GHULAM vs The STATE and anothers 2014 YLR 2685