MUHAMMAD NAVEED MALIK Versus B.I.S.E.
ORDER
Criminal Appeal No.93 of 1994 has been filed by Abdul Sattar and Muhammad Zubair against their conviction and sentence vide judgment, dated 25-7-1994 passed by Qazi Habib-ur-Rehman A.C./M.S.30, Attock, in Case No.9/2 of 1993 (F.I.R. No.204, dated 20-9-1992, Police Station Sadar Attock). The appeal was admitted on 4-8-1994 and notice in Criminal Miscellaneous. No.524/B, of 1994, which is an application on behalf of Abdul Sattar appellant for suspension of his sentence, was also issued the same day. Learned A.A.-G. represented the State while Mr. Nasir Saeed Sheikh, Advocate appeared on behalf of the complainant.
2. The learned counsel for the petitioner, Abdus Sattar contended that according to the prosecution, Alain accused who has been acquitted and Abdul Sattar, the present petitioner both were ascribed same role of holding the injured witnesses who were injured by Zubair accused/convict. The evidence was the same against both these persons, namely, Abdul Sattar and Alam. However, Alam was acquitted whereas Abdul Sattar was convicted and sentenced under section 337-D, P.P.C. for five years as Tazir, section 337-F(iv), P.P.C. for two years, under section 337-F(iv), P.P.C. for two years and under section 337-F(iii), P.P.C. for one year as Tazir. However, the sentences are to run consecutively.
3. Learned counsel for the petitioner contended that there is no distinction between the case of Alam, since acquitted, and Abdul Sattar, petitioner. The learned counsel for the petitioner also contends that learned trial Court has based its judgment on conjectures and surmises, which is evident from the contents of para. 8 of the impugned judgment. He particularly referred to the following passage from para 8:--
"According to the record the two injured persons sustained 5 injuries on their persons. Obviously one accused cannot inflict such 5 injuries to 2 persons, even if the former is given a free hand. All the injuries have been attributed to Zubair accused. Thus, his participation in the occurrence is not disputed at all. Abdul Sattar accused has been attributed the role of holding the injured persons to enable the principal accused Muhammad Zubair to inflict the injuries. Thus, the participation of Abdul Sattar accused is also established on the record, in these circumstances of the case. Aalam accused has also been attributed similar role that he caught hold (of) Rizwan P.W. when Zubair accused caused one injury to Rizwan. In the natural circumstances of the case, a young son should have been more enthusiastic to catch hold of the target than the old father. "
Therefore, the learned counsel for the petitioner submits that the observations of the learned trial Court are not warranted on record but are based on conjectures and surmises. He particularly referred to P.W.3, Muhammad Pervaiz, who is stated to be an eye-witness and related to the complainant party, and according to whom Abdul Sattar had reached the place of occurrence after the occurrence. Abdul Sattar was declared innocent by the police during investigation as also deposed by P.W.6 Muhammad Riaz, A.S.I., Investigating Officer. The learned counsel for the petitioner also cited judgments reported as 1985 P Cr. L J 1974 and N L R 1987 Criminal 610. In both these judgments the sentences were suspended on the ground that the allegations against the petitioner were of "catching hold of", so as to facilitate the commission of offence. Petitioner's learned counsel also relied on the judgment of the Honourable Supreme Court in Ghulam Sikandar and another v. Mumraz Khan and others P L D 1985 SC 11, wherein it was observed that "where it was found that witness has falsely implicated one accused person, ordinarily he would not be relied upon with regard to other accused person in the same transaction". The learned trial Court observed "with regard to Aalam Khan that "I am of the considered opinion that Aalam Khan accused did not take part in the occurrence and he has been involved in this case just to entangle the whole family". The learned counsel, on the authority of the aforesaid judgment of the Honourable Supreme Court, submitted that the same evidence was against Abdul Sattar but he has been convicted by the learned trial. Court, therefore, his conviction is not warranted. The learned counsel for the petitioner also submitted that Abdul Sattar remained on bail during the trial but never misused the concession of bail. Lastly he submitted that the learned trial Court has erred in law in directing that the sentences would run consecutively. This direction, according to the petitioner's learned counsel is against the letter and spirit of section 71 of the P.P.C. On the contrary the learned counsel for the complainant contended that in fact section 35, Cr.P.C. would be applicable, therefore, the learned trial Court was justified to order running of sentences consecutively. However, bare reading of section 35, Cr.P.C. shows that it is subject to the provisions of section 71 of the P.P.C. Arguments of the learned counsel for the petitioner that the provisions of section 71, P.P.C. are applicable appear to be correct. However, this matter would be finally decided at the time of hearing of the appeal.
4. Learned counsel for the complainant submitted that considerations for gianting bail after conviction are different from those where bail is granted before conviction under section 497, Cr.P.C. He relied upon the judgments of the Honourable Supreme Court reported in 1981 S C M R 859, 1984 S C M R 412(1) and 1985 S C M R 1879. The dictum of the Honourable Supreme Court in these judgments is not attracted to the facts of the present case. He further submitted that under section 426(1), Cr.P.C. the appellate Court has discretion to suspend the sentence appealed against and thus discretion should. not be exercised in favour of the petitioner in view of the judgments reported as 1984 P Cr. L J 1503, 1986 P Cr. L J 64, 1987 P Cr. L J 293. The first two cases advance the case of the petitioner for suspension of his sentence. However, in the third case it is observed that where it involves reappraisal of the entire evidence, it would not be expedient to undertake such an exercise at this stage. Thus these judgments do not take away the power of this Court under section 426(1), Cr.P.C., if in a given case the circumstances justify suspension of the sentence during pendency of the appeal. In this behalf the dictum of the Honourable Supreme Court in Manzoor v. State P L D 1972 SC 81 has to be kept in view and followed. The relevant observations are produced below:--
"The ultimate conviction and incarceration of a guilty person can repair the wrong caused by a mistaken relief of interim bail granted to him, but no satisfactory reparation can be offered to an innocent man for his unjustified incarceration at any stage of the case albeit his acquittal in the long run."
The learned counsel for the complainant also submitted that after the conviction of accused by the trial Court the declaration of innocence by police during investigation becomes irrelevant. It may be so, but it still remains a consideration with other factors to decide application for suspension of sentence.
5. I have considered arguments of the learned counsel for the petitioner and that of the learned A.A.-G. assisted by the learned counsel for the complainant. It is established on record that Aalam Khan accused is the father of Abdul Sattar petitioner and main accused/convict Zubair is also son of Aalam. So far as Aalam Khan and Abdul Sattar are concerned there is same evidence against them. In addition to that Abdul Sattar was declared innocent by the police and he was found not to be present at the time of occurrence which is also supported by P.W.3 Muhammad Pervaiz There is no distinction between the case of Aalam Khan, and Abdul Sattar, petitioner. On the basis of section 71, P.P.C. it appears, subject to final verdict in appeal, that the sentence awarded by the learned trial Court is to run concurrently and the maximum sentence of Abdul Sattar petitioner would be 5 years. Needless to say that my observations herein are relatable to this petition for suspension of the sentence and would not affect the merits of the appeal either way.
6. In the light of the above discussion I suspend the sentence of Abdul Sattar, petitioner and release him on bail subject to his furnishing security in the sum of Rs. 50,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.
N.H.Q./A-683/L Sentence suspended.