ABDUL KHALIQ Versus THE STATE

ORDER

This is a petition for suspension of sentence awarded to Abdul Khaliq in case F.I.R. No.39/92, dated 5-6-1992, under section 302, P.P.C. Police Station Bhoong, District Rahimyar Khan, by Malik Muhammad Aslam, Additional Sessions Judge, Bahawalpur, vide his judgment, dated 30-5-1994, for the double murder of Abdur Razzaq (aged 24/25 years) and Mst. Bushra Bibi (aged 22/23 years).

2. The prosecution story briefly stated in F.I.R. by Amjad Pervaiz Complainant (P.W.6) is that his uncle Muhammad Hussain and his aunt Mst. Saleem Bibi proceeded for Hajj and in their absence they asked their son-in -law, namely Abdul Khaliq petitioner-appellant and their daughter Mst. Bushra Bibi to look after the house. This house was adjacent to the house of the complainant. Abdul Khaliq had suspicion that his wife Mst. Bushra had illicit relations with Abdur Razzaq deceased (brother of the complainant). At about A-00 a.m. on the fateful day he and his paternal-uncle Muhammad Yaqoob heard a fire shot from their uncle's house where the petitioner-appellant was staying and saw that Abdul Khaliq had fired at Abdur Razzaq and Mst. Bushra. It is further stated that they could not intervene as the petitioner-appellant threatened that they shall be dealt with in the same manner if they tried to intervene. Having said so he ran away. Abdur Razzaq and Mst. Bushra Bibi died at the spot.

During trial, the prosecution examined ten witnesses including the doctor. The Investigating Officer and Amjad Pervaiz complainant (P.W.6). The other eye-witness Muhammad Yaqoob was given up and Amjad Pervaiz (P.W.6)'s statement was corroborated by the evidence of recovery and the medical evidence.

3. The learned counsel for the petitioner-appellant has prayed for suspension of his sentence on the following grounds:--

(i) That the conviction of the petitioner-appellant is based on inadmissible evidence. He referred to page 18, para. 30 of the judgment wherein it has been observed by the learned trial Court `there is also evidence of extra-judicial confession in the shape of statement of Muhammad Hussain C.W. which also calls for reliance and lends support to ocular account'.

(ii) That the learned trial Court has misread the evidence on record in observing `the above-stated abscondance of the accused also leads to the inference that he was fully involved in the occurrence and he wilfully avoided to visit the house of his father-in-law despite having knowledge of the occurrence for a period of one week'.

(iii) That the sentences have been ordered to run consecutively which is not sustainable in law.

(iv) That the vaginal swabs of Mst. Bushra which were sent to Chemical Examiner for analysis were found to be stained with semen. He relied on:--

(i) Muhammad Siddique v. The State PLD 1994 Lah. 129,

(ii) The State v. Muhammad Hanif and 5 others 1992 SCMR 2047,

(iii) Zahid Mushtaq v. The State 1994 PCr.LJ 1516.

4. The learned counsel for the complainant as also for the State have submitted as follows:--

(i) That the point on the basis of which the suspension of sentence of the petitioner Abdul Khaliq is sought would call for a deeper appreciation of evidence which is not warranted while deciding a petition under section 426, Cr.P.C.

(ii) That the petitioner-appellant is guilty of double murder merely on suspicion.

(iii) That the petitioner in his statement under section 342, Cr.P.C. never raised the plea of grave and sudden provocation during the trial.

5. I have heard the learned counsel for the parties and have also gone through the judgment.

6. The Court of appeal can suspend the sentence if it is of the view that the appraisal of evidence made by the learned trial Court needed examination and that the said appraisal is against the law laid down. However, while undertaking this exercise, the Court has to confine itself to the infirmities in the judgment which are apparent and tend to show that the conviction and sentence are not sustainable in law.

7. The points urged by the learned counsel for the petitioner relate to the merits of the case and a proper adjudication of the same would call for deeper appreciation of evidence which is not warranted in a petition under section 426 of the Criminal Procedure Code. The petitioner has mainly been convicted on the statement of Amjad Pervaiz (P.W.6) and the learned trial Court sought corroboration of his statement from the medical evidence and the evidence of recoveries. It seems that the learned trial Court also sought corroboration of the afore-referred evidence from what was termed extra-judicial confession made before Muhammad Hussain C.W. The learned counsel for the petitioner attempted to argue that the so-called extra-judicial confession before the said Muhammad Hussain (C.W.) was made by the petitioner-convict while he was in custody and no reliance could be placed on the same. This argument, on the first sight appears weighty but it loses sight of the fact that the evidence of Amjad Pervaiz (P.W.6) which was corroborated by the recovery of weapon of offence and medical evidence cannot be ignored and it cannot be said that there are strong grounds to show that the conviction is not sustainable in law in absence of which conviction and sentence cannot be suspended pending appeal.

The evidentiary value of the evidence on which the petitioner appellant stands convicted, particularly the statement of Amjad Pervaiz (P.W.6) as also the evidence of recovery, would of necessity entail reading and appreciation of entire evidence on record. Similarly, the grounds 'urged in this petition like the absconsion or non-absconsion of the appellant or the effect of the result of vaginal swabs of Mst. Bushra Bibi deceased cannot he properly gone into without the reappraisal of the evidence recorded. This exercise cannot be undertaken while deciding an application under section 426 of the Criminal Procedure Code.

The precedent case-law referred to by the learned counsel for the petitioner is distinguishable and is, therefore, not of much help to the petitioner in the present case. It is briefly discussed below:--

In Zahid Mushtaq v. The State 1994 PCr.LJ 1516, the conviction of life sentence was suspended as the appellant was a minor and he could not have been punished under section 302, P.P.C. and it was held that if it is ultimately found to be a case of retrial then the detention of the applicant as a life convict pending disposal of the appeal would not be justified.

In Muhammad Siddique v. The State PLD 1994 Lah. 129, the bail after arrest was allowed to the accused as he had specifically pleaded that the deceased had illicit relations with his daughter and he found both of them coming out of the sugarcane field and killed them. This pica was supported by the medical evidence inasmuch as the vaginal swabs of Mst. Yasmin Bibi (deceased) were found to be stained with semen.

In The State v. Muhammad Hanif 1992 SCMR 17, 1heState appeal against acquittal was dismissed as the judgment of the learned trial Court was found neither to be infirm nor perverse to warrant any interference.

8. For what has been. discussed above, do not see any merit in this petition which is hereby dismissed.

9. However, without prejudice to the merits of the main case as it is a case of single eye-witness and I am inclined to direct the office to fix the main appeal before the year 1995 is out.

N.H.Q./A-808/L

Petition dismissed.