MUHAMMAD SALEEM Versus State

ORDER

ALI NAWAZ CHOWHAN, J.- Muhammad Saleem son of Yara petitioner/appellant who has been convicted and sentenced by Mr. Sanaullah Malik, Additional Sessions Judge, Nankana Sahib, under section 302(b)/34, P.P.C. To life imprisonment with further directions to pay half of the total compensation of Rs.1,00,000 under section 544-A, Cr.P.C. To the legal heirs of the deceased vide his judgment dated 10-6-2002, has filed his appeal before this Court alongwith his co-convict Yasin son of Falak Sher who was sentenced to death. The petitioner/appellant Saleem is asking for suspension of sentence through this application.

2. The matter pertains to case No.142, dated 5-6-1996registered under sections 302, 109/34, P.P.C. At Police Station Syedwala, District Sheikhupura.

3. Allegation against both the petitioner and his co-accused wasthat they committed Qatl-i-Amd of one Khizar Hayat.

4. According to the F.I.R., on 5-6-1996 at about 2-00 p.m. The complainant alongwith P.Ws. Had gone to felicitate one Haji Sajjad Ahmad who had performed Hajj and was returning and while they were on the way near the fields of a co-villager Walayat Khan in the area of Thatha Ahmad, the petitioner/appellant while armed with a .12 bore gun and his co-accused Yaseen armed with a 303 bore rifle alongwith other co-accused who too were armed emerged. It is stated that Saleem opened fire with his gun hitting on the chest of Khizar Hayat from the front. Yaseens' fire hit him on the back chest near the left shoulder. The other co-accused, who were placed in column 2 of the challan, were attributed indiscriminate firing.

5. Ata Muhammad complainant, a Phophizad of the deceased had given the ocular account of the occurrence while stating that:

"Saleem son of Yara made first fire at Khizar Hayat with .12 bore gun which landed on his chest. Khizar Hayat took it turn when Yaseen son of Falak fired at him which landed on back of his left shoulder. Khizar Hayat fell down on the ground and the accused resorting to aerial firing decamped from there.

6. Dr. Khadim Hussain (P.W.4) had conducted the post-mortem examination on the dead body. He found the following four injuries on the dead body:-

"(1) Eight wounds of entry size 1/2 cm x 1/2 cm each on the back of the left shoulder within area 8 cm x 7 cm.

(2) Four wounds of exit size 1/2 cm x 1/2 cm on the front of chest within the area 6 cm x 4 cm.

(3) A wound of entry 1/2 cm x 1/2 cm on the base and middle front of neck.

(4) A wound of entry size 1/2 cm x 1/2 cm on the middle of Sternum."

Following were his observations about the injuries after dissection:

"On dissection Injury No.1 five wounds entered the chest cavity ruptured the left lung and one pallet found beneath the skin of left front of chest. Injury No.2 was exit wound. Injuries Nos.3 and 4 were skin deep. Chest cavity was full of blood. Heart was empty. Stomach contained half pound of semi-digested food. Bladder contained sixty C.C. Of urine".

It was his opinion that the cause of death was shock and haemorrhage on account of Injury No.1 which was enough to cause death in the ordinary course of nature.

7. No recovery has been made from Saleem petitioner/appellant while recovery was effected from the other convict/appellant Yaseen.

8. The learned trial Court in paragraph 20 of its judgment made the following observation:

"Yaseen son of Falak Sher alias Falak who fired with his .12 bore gun P4 at the deceased sustaining Injury No.1 to the deceased, as per opinion of doctor who conducted post-mortem on the dead body of the deceased was sufficient to cause death of the deceased in ordinary course of nature, so he committed Qatli-Amd of Khizar Hayat deceased while Injury No.4 is attributed to his co-accused Saleem son of Yara who with his fire-arm fired at the deceased Khizar Hayat and he actively participated in the real sense of the word, in commission of the crime and thus I hold that Saleem son of Yara is vicariously liable with his co-accused Yaseen son of Falak Sher lias Falak in furtherance of common intention to cause Qatl-i-Amd of Khizar Hayat."

9. It is argued that no recovery has been effected from the petitioner/appellant Saleem, no motive is attributed to him and Injury No.4 ascribed to him was just skin deep and could have been causedby firing of Yaseen. That according to the F.I.R., he has been attributed an injury on the front chest which is Injury No.2 but according to the doctor, this was an exit wound of Injury No.1 and, therefore, the ocular account and medical account were in clash. It is further argued that the police had declared him a non participant in the occurrence.

10. The arguments of learned counsel for the petitioner/appellant do carry weight and call of reconsideration of the case with regard to the role of Saleem. Under the circumstances, he is allowed bail provided he furnishes, bail bonds in the sum of Rs.1,00,000 with two local respectable sureties in the like amount to the satisfaction of the trial Court. If released on bail, he shall be appearing in person on each and every date fixed by the Court and shall also be joining investigation.

H.B.T./M-435/L Bail allowed.