ZAHID MUSHTAQ Versus STATE

ORDER

MUHAMMAD NAWAZ ABBASI, J : ----- This is an application under section 426, Cr.P.C. for the suspension of sentence of Zahid Mushtaq appellant who was convicted under section 302, P.P.C. and awarded sentence of life imprisonment with compensation of Rs.20,000 to be paid to the legal heirs of the deceased by the learned Additional Sessions Judge, Sahiwal vide judgment, dated 26-4-1993.

2. The facts necessary for the disposal of this petition are that Khyzar Hayat complainant was cutting grass in his field and his brother Akhtar Hussain alias Safdar was cutting Charry fodder, in the nearby field when at 11 a.m. on the fateful day, Zahid Mushtaq applicant and his father Mushtaq Ahmad armed with .12 bore guns appeared at the scene. Zahid Mushtaq raising Lalkara fired at the deceased from a close range hitting on his left chest. The shot fired by Mushtaq accused hit at the arm of the deceased and the second shot fired by Zahid Mushtaq hit on his left shoulder.

The occurrence was the result of enmity between the parties because of the murder of Maqbool Ahmad brother of the applicant in which case Akhtar Hussain deceased was challaned as ad accused and was acquitted subsequently.

3. The post-mortem on the dead body was conducted by Doctor Muhammad Yousaf P.W.5 on z9-9-1991 Le: next day of the occurrence who found 10 injuries on the person of the deceased, caused with fire-arm. Injury No:3 on left shoulder, injury No.4 on frontal part of the left side 'of the chest and injury No.7 on the right wrist joint, were found sufficient to cause death in the ordinary course of nature. Khizar Hayat P.W.6, the lodger of the F.I.R. and father of the deceased and Muhammad Ismail P.W.7 another witness of the occurrence giving detail account of the occurrence proved the prosecution story as contained in the F.I.R.

4. The applicant in his statement, under section 342, Cr.P.C. denied the prosecution allegation and pleaded false implication because of the previous enmity between the parties. The main reliance of the prosecution was on the evidence, of motive, the ocular account, medical evidence and the recoveries from the accused. The learned trial Court believing the evidence of motive and the eye-witness account with the conclusion that it being supported by medical evidence and the recoveries proves the charge against the appellant under section 302, P.P.C. convicted and sentenced him under section 302(b), P.P.C. by extending benefit of minority under section 306(a), P.P.C. His co-accused Mushtaq Ahmad was however, acquitted with the observation that the possibility of all the injuries having been caused by the applicant alone to the deceased could not be ruled out. Khizar Hayat complainant however, has challenged the acquittal of Mushtaq Ahmad through Criminal Revision No.130 of 1993, which has also been admitted for hearing with the direction to be heard alongwith appeal of Zahid Mushtaq.

5. The learned counsel sought the suspension of sentence of the applicant on the following grounds:--

(i) That the motive of enmity being double-edged weapon and the recovery having been found fabricated, the evidence of interested and inimical witnesses, there being every possibility of false implication, the conviction on the basis of testimony of partisan witnesses without corroboration from unimpeachable source is not sustainable and the applicant pending disposal hiss appeal is entitled to the concession of bail.

(ii) That the learned trial Court after having declared the appellants minor under section 306(a), P.P.C. was not justified to award him sentence of life imprisonment under section 302(b), P.P.C.

(iii) That the connected revision petition against the acquittal of Mushtaq, the co-accused of the applicant, if ultimately succeeds, there shall be every possibility of retrial of the case also against the appellant, hence sentence awarded to the applicant deserves to be suspended.

6. The bail has been opposed by the learned AA: G. on the ground that it is a day time occurrence and fatal shot having been attributed to the applicant, the conviction is based on ocular testimony and motive. He urged that it has been practice of this Court to avoid deeper appreciation of evidence while disposing of an application under section 426, Cr.P.C. He, however, has no argument to meet the contentions of the learned counsel on the question of legality of sentence under section 302(b), P.P.C. and effect on the case of applicant, if ultimately revision petition against the acquittal of Mushtaq co -accused of the applicant is succeeded.

7. We have given our anxious consideration to the contention raised by the learned counsel for the applicant and the learned AA.-G.

8. Undoubtedly there is no bar to the tentative assessment of evidence on the basis of which finding of guilt is given, for the purpose to consider the 'application for suspension of sentence under section 426, Cr.P.C. A Full Bench of this Court in Altaf Hussain Shah v. The State 1986 P Cr. L J 2202 held that:---

"The power and discretion of the appellate Court to grant bail is not fettered or restricted by reference either to the conviction or sentence passed against an appellant but this discretion must be exercised in a proper manner."

The learned trial Court in the present case placing reliance on the evidence of motive, the medical and eye-witness account convicted the appellant. We, therefore, are not persuaded to make re-appraisal of the evidence in the manner as has been argued by the learned counsel for the purpose of suspension of sentence.

The question vis-a-vis the legality of sentence under section 302(b), P.P.C. and effect of revision against the acquittal of co-accused whether can be a ground for the purpose of section 426, Cr.P.C. needs determination.

The provision of section 302, P.P.C. are reproduced as under:--

(a) Punished with death as Oisas;

(b) Punished with death or imprisonment for life as Taazir having regard to the facts and circumstances of the case, if the proof in either of the forms specified in section 304 is not available; or

(c) Punished with imprisonment of either description for a term which may extend to twenty-five years where according to the Injunctions of Islam the punishment of Oisas is not applicable."

This section provides three categories of sentence to be awarded in case of commission of an offence of Qatl-e-Amd i.e.:

(i) punishment with death as Qisas.

(ii) punishment with death or imprisonment for life as Tazir and

(iii) punishment of either description for a term which may extend to 25 years whereas punishment as Qisas whereas punishment case is not applicable.

The import of the section is that where according to the Injunctions of Islam the punishment of Qisas is .not applicable, the offender shall only be liable to be punished under section 302(a), P.P.C. and inapplicability of section 302(a), P.P.C. in such case shall also exclude the application of section 302(b), P.P.C. The applicant was found by the trial Court entitled to the benefit of section 306, P.P.C. which reads as under:--

(a) when an offender is a minor or insane:

Provided that, where a person liable to Qisas associates with himself in the commission of the offence a person not liable to Qisas with the intention of saving himself from Qisas, he shall not be exempted from Qisas;

(b) when an offender causes death of his child or grandchild, how low so ever; and

(c) when any Wali of the victim is a direct descendant, how-low-so-ever of the offender:

Within the scope of this section a minor or lunatic may be guilty of deliberate homicide but because they we not legally capable of forming a criminal intent they are not liable to Qisas. An offender who is not liable to Qisas, to be punished under the provision of section 302(a), P.P.C. can also be not liable to be punished under section 302(b), P.P.C. as in such circumstance the case falling under section 302(c), P.P.C. only the punishment provided thereunder can be awarded, hence the sentence of life imprisonment awarded to the appellant under section 302(b), P.P.C. was not the correct application of law in the present case.

The question of sentence always demands utmost care on the part of the Courts dealing with the life and liberties of the people and the sentence must be fair. The question of sentence is matter of discretion primarily resting with the trial Court. Where lower Court proceeding on wrong premises, awarded sentence with no legal sanction, High Court will interfere.

This is to be seen that in such circumstances whether the case shall necessarily need retrial or the illegality can be cured by the appellate Court. It depends upon the nature of the charge and the evidence in proof of the allegation brought on record, thus this question shall need determination at the time of hearing of the appeal.

Normally, youth age is considered while determining the sentence to be imposed in suitable cases. However, for the purpose of Chapter XVI. P.P.C. minor as defined under section 299(h)(1), P.P.C. such person who is not an adult and by virtue of section 299(a), P.P.C. adult means a person who has attained age of 18 years. In case of non-pubert accused or a minor as defined, any other punishment by way of Tazir including the death penalty can be awarded, except the case in which punishment of Qisas is not applicable as provided under clause (c) to section 302, P.P.C. The punishment under section 302(b), P.P.C. is awarded only in the cases in which the proof in either of the forms prescribed in section 304, P.P.C. is not available and not in the cases falling under clause (c) of section 302, P.P.C.

The next question for consideration is that if ultimately the acquittal of Muhammad Mushtaq, co-accused of the appellant is found not sustainable and it is set aside, the revisional Court having no power to convert a finding of acquittal into one of conviction has no option but to remand the case for retrial. The retrial although demanded only against one accused but in the given facts in that situation, retrial shall be as a whole. Honourable Supreme Court of Pakistan in Moonda etc. v. The State P L D 1958 SC (Pak.) 215 held that although grounds for retrial appear9d to be only for some of the accused, the retrial was ordered against all the accused. Muhammad Mushtaq acquitted accused having been attributed similar role of causing fire-arm injuries to the deceased and case against him not distinguishable the trial Court only for the reason that during the investigation, he was found innocent acquitted him. The case against acquitted accused on fact being at par to that of the applicant except the liability vie-a-vie quantum of sentence, the success of revision will bring result of retrial not for Mushtaq only but also for the retrial of applicant.

If ultimately the retrial of the applicant is also ordered, either on the ground of illegality in relation to conviction and sentence or as a result of success of revision petition against the acquittal of Mushtaq, there can be no repair to the applicant for the period of detention pending disposal of appeal and the revision of this Court. Ordinarily, a person convicted of such an offence is not entitled to bail under section 426, Cr.P.C. unless strong grounds are shown that conviction is not sustainable. However, in suitable cases as observed by Honourable Supreme Court of Pakistan in Abdullah Khan v. Karam Dad Khan etc. 1968 S C M R 1064, the High Court for good and sufficient reasons can exercise the power of granting bail under section 426, Cr.P.C. to an accused convicted for murder.

In view of the special feature of the case, the conviction and 'sentence under section 302(b), P.P.C. whether in the circumstances sustainable needs consideration. If ultimately retrial is ordered or in the case of application of section 302(c), what should be the term of sentence, provide a good and sufficient ground to exercise power under section 426, Cr.P.C. The retrial if any in the eventuality of acceptance of revision petition the detention of the applicant as life convict pending disposal of the appeal and revision shall not be justified. We accordingly, in peculiar circumstances of the case feel inclined to suspend the sentence of the applicant on the ground that the question raised in case needs serious consideration. The applicant shall accordingly be released on bail subject to his furnishing bail bonds in the sum of Rs.50,000 with two sureties in the like amount to the satisfaction of Sessions Judge, Sahiwal.

N.H.Q./Z-115/L

Sentence suspended.