AHMAD ALI vs STATE etc
This matter concerns a petition filed under Section 426 of the Code of Criminal Procedure 1898, seeking the suspension of sentence and grant of bail pending the disposal of a criminal appeal. The petitioner, Ahmad Ali, challenged his conviction, highlighting significant contradictions in the prosecution's evidence regarding the identity of the assailant who fired the fatal shots. The trial court's judgment itself noted inconsistencies in the complainant's testimony and the prosecution's initial version. Crucially, the trial court found the complainant's version unreliable and instead accepted the accused's version, which was supported by the investigating officer and circumstantial evidence. The High Court observed that the sole evidence against the petitioner relied upon by the prosecution was the report and opinion of the investigating agency, the weight of which required deeper judicial scrutiny during the main appeal. Consequently, the Court held that the petitioner had made out a case for the suspension of his sentence. The petition was accepted, and the petitioner was admitted to bail pending the final decision of the appeal, subject to the furnishing of bail bonds.
- Can a sentence be suspended under Section 426 of the Code of Criminal Procedure 1898 when the prosecution evidence contains material contradictions?
- Does the reliance on the investigating agency's report as the sole evidence against an accused justify the suspension of a sentence pending appeal?
- Section 426, Code of Criminal Procedure 1898
ORDER
1. By means of instant petition, filed in term as of Section 426, Cr.P.C., Ahmad Ali, the petitioner seeks suspension of his sentence and admitting him to bail, pending disposal of his criminal appeal.
2. 2.Heard. Record perused.
3. 3.The learned trial Court in its judgment at Page No. 2, Paragraph No. 2, Line No. 9 reproduced the initial version of the prosecution, which reads as under: "While on resistance of Nazia Bibi accused Ahmad Ali and Zishan made fire shots which hit on her chest and she also died at the spot."
4. Whereas, at Page No. 4, testimony of the complainant-Manzoor Hussain (PW-2) was reproduced and in the Line No. 15, it was mentioned as following: "Zishan fired which hit at Nazia Bibi and she also fell down."
5. And at Page No. 5 of the judgment, in Line No. 9 of the testimony of Javed Mehmood (PW-3), it was mentioned as following: "Shan Ali shot fire which hit Nazia."
6. The learned trial Court while convicting the petitioner-Ahmad Ali had observed in its judgment at Pages No. 22 and 23, which reads as under: "As per discussion made above, it is clear that complainant has tried to introduce Nikkah between Ishrat Javed and Mst. Nazia Bibi but has not been able to prove the same, resulting into clear conclusion that Ishrat Javed being paramour of Mst. Nazia bibi was held with her in the same bed in her room, therefore, both were done to death with the fire-arm shots. Because both dead bodies were recovered from the said room in the house of accused Ahmad Ali, complainant and witness Javed have not been able to proved and justify their presence at the place of occurrence, therefore, their version being not attracted to a prudent mind is not acceptable whereas, the version of accused Ahmad Ali is corroborated by I.O. during investigation and through circumstantial evidence of matching of gun with the empties and the other circumstances as discussed above, therefore, the version of accused Ahmad Ali is acceptable being supported by circumstances."
7. 4.It is not disputed that the only evidence against the petitioner is of positive report and opinion of the Investigating Agency. The worth of said pieces of evidence would require serious consideration by this Court at the time of hearing of the main appeal.
8. 5.Accordingly instant petition is accepted, conviction and sentence of the petitioner-Ahmad Ali is suspended and the petitioner-appellant is admitted to bail till the final decision of appeal subject to furnishing bail bonds in the sum of Rs. 5,00,000/-with two sureties each in the like amount to the satisfaction of the Deputy Registrar (Judl.) of this Court. The petitioner-appellant shall, however, remain present in the Court on each and every date of hearing till the final decision of main appeal,
5. The office is directed to fix the titled appeal for 11.09.2017.