JAHANGIR Versus STATE
ORDER
The petitioner has been convicted under section 5 of the Islamic Penal Laws Act, by the District Criminal Court, Kotli for the murder of his step‑brother, namely, Abdur Rehman, on March 30, 1998 and sentenced him to undergo the life imprisonment. The conviction has been challenged in an appeal pending in this Court. The petitioner has moved an application for suspension of the sentence passed against him.
2. Mr. Abdul Majeed Mallick, the learned counsel for the petitioner argued that according to the prosecution case eight accused‑persons took part in the occurrence but seven have been acquitted by the trial Court. It has been alleged by the prosecution that the petitioner and his brother Alamgir fired upon the deceased with .12 bore gun but the gun was not recovered at the instance of Alamgir. He also submitted that the eye witnesses were related and interested as such no corroborative evidence has been produced. He further contended that the prosecution story has been disbelieved in respect of seven persons but it has been illegally relied upon by the trial Court in respect of the petitioner. He maintained that the incident of firing on the house of the deceased, prior to the occurrence of murder, attribution of kicks and stoning by other accused‑persons after firing, has also been disbelieved by the trial Court. It was also argued by him that Khurshid is a star witness and the real nephew of the complainant, namely, Abdul Khaliq. But the said Khurshid retracted from his statement while filing an affidavit on August 18, 1996 after recording of his evidence, but the trial Court did not mention anything about it. He also submitted that the place of occurrence could not be identified by the prosecution witnesses but the trial Court did not consider this aspect of the case. According to the prosecution story the place of occurrence is a passage but some of the P.Ws. described the same as a (gehri kassi)and some of them as water‑point (chasma pani). It was also stated by the learned counsel for the petitioner that recovery of the gun from the petitioner has also not been proved because not a single P.W. has stated about it. He has drawn attention of this Court towards the recovery evidence and argued that all the witnesses deposed that the gun was recovered but it was never stated that the same was recovered by Jahangir or at his instance. The learned counsel for the petitioner further emphasised that the prosecution's case is doubtful and the trial Court failed to appreciate the prosecution evidence in a legal fashion and there is ample chance of the acquittal of the accused. In support of his contention, the learned counsel cited the following authorities:‑‑
(i) 1978 SCMR 149.
(ii) 1978 SCMR 458.
3. Repudiating the arguments of the learned counsel for the petitioner, Chaudhry Muhammad Riaz Alain, the learned counsel for the complainant, argued that the complainant has also filed an appeal for the enhancement of the conviction. He further contended that the petitioner was not allowed bail during the trial of the case, rather he was released on bail because of delay in conclusion of the trial within a period of two years. He further submitted that the petitioner has failed to fulfil the conditions of section 426, Cr.P.C. thus, cannot avail the benefit of suspension of the sentence. He also maintained that the prosecution evidence would be read as a whole and accumulative effect of the prosecution story proves the case against the petitioner beyond any shadow of doubt. The learned counsel for the complainant placed reliance on the following case‑law in support of his contention:‑‑
(i) 1995 SCMR 823.
(ii) 1995 SCMR 1819.
4. The learned Additional Advocate‑General, contended that at this stage of the proceedings, deeper appreciation of the evidence cannot be made. He also submitted that the affidavit sworn by Khurshid witness does not render any support to the case of the petitioner because it was filed in support of the abetter accused‑person.
5. In the light of the arguments addressed at the bar, I have carefully examined the record of the case and reached to the conclusion that the petitioner has made out a sufficient cause for suspension of the sentence awarded by the trial Court. It is an admitted principle of law that at this stage of proceedings, deeper scrutiny is not permissible. According to the learned counsel for the petitioner there is a lot of difference between first information report lodged by the complainant Abdul Khaliq and a private complaint presented by him. F.I.R. discloses that when complainant went after the deceased, he was 'alone and on his hue and cry Khurshid and Wazir P.Ws. reached at the spot, but the complainant in his private complaint stated that when his brother (deceased) went to police station to report the matter of threats and firing upon his house, the complainant was accompanied by Khurshid. Thus, according to the learned counsel for the petitioner the complainant for the first time introduced Khurshid as an eye witness. He has also referred the various portions of the statements of the prosecution witnesses, whereby the presence of the prosecution witnesses on the spot was challenged by the defence and he tried to prove that the statements of the prosecution witnesses cannot be relied upon. The learned counsel has also pointed out that out of eight accused persons seven were acquitted of the charge and only the petitioner was sentenced to life imprisonment on the basis of the prosecution evidence. The learned counsel for the petitioner also emphasised that the eye witnesses are closely related and interested and no corroborative evidence has been produced by the prosecution. The trial Court also reached to this conclusion in its judgment that neither gun was recovered from the petitioner nor an empty from the place of occurrence. The learned counsel also drew our attention towards the statements of prosecution witnesses about the place of occurrence. According to him some of them described it as a ditch and some of them a water‑point. The petitioner remained in the jail quite sometime during the trial and he is also behind the bars after his conviction. Keeping in view all the facts and circumstances of the case and without making any detail comment upon the merits of the case and avoiding deeper appreciation, I hold that it is a fit case where the discretion may be exercised in favour of the petitioner.
6. In this respect, I am fortified in my view by a case titled 'Abdul Ghaffar v. Anawarul Hussain and others' (1978 SCMR 149), wherein the learned Supreme Court of Pakistan dismissed the petition for special leave to appeal, whereby the order of the High Court to grant bail after suspending the sentence was challenged in case of life imprisonment.
7. In another case reported as 'Qamar Imam Din v. Liaquat Ali and others' (1978 SCMR 458) life imprisonment of the respondent was suspended by the High Court and the order was upheld by the learned Supreme Court whereby the High Court had taken up a view that appraisal of the evidence by the trial Court required to be re‑examined.
8. As far as the authorities cited by the learned counsel for the complainant are concerned, in the case titled as 'Imdad Ali v. The State' (1995 SCMR 823), it was held that the learned Judge in the Lahore High Court, when dismissed the application for suspension of the sentence, while recording a short order, a plea was taken up before the Supreme Court that the High Court did not advert to the merits of the case but the Supreme Court declined to accept this contention and dismissed the petition for leave to appeal.
9. The case title "Liaquat Ali and others v. The State" cited by the learned counsel for the complainant is quite distinguishable from the facts of the case under consideration.
10. In the aforesaid view of the matter, while accepting the petition, the sentence awarded by the trial Court is suspended till the final disposal of the appeal and the petitioner is allowed the concession of bail, provided that he furnishes a bail bond in sum of Rs.2,00,000 with two sureties in the like amount to the satisfaction of any Magistrate First Class, Kotli/Mirpur. If the needful is done, and the petitioner is not required in any other case, he shall be set‑free from custody forthwith.
H.B.T./66/Sh.C.(AJ&K)
Application allowed.