MUHAMMAD AZEEM Versus State

ORDER

IJAZ AHMAD CHAUDHRY, J.--- Through this application under section 426, Cr.P.C. the petitioner-appellant Muhammad Azeem has sought suspension of sentence who, vide judgment, dated 22-11-2005 passed by the learned Additional Sessions Judge, Lahore, along with co-convict Muhammad Naeem was convicted:

(i) Under section 302(b)/34, P.P.C. and sentenced to imprisonment for life with direction to pay compensation of Rs.50,000 to the legal heirs of the deceased or in default of payment thereof to undergo S.I. for six months;

(ii) Under section 337-A(ii)/34, P.P.C. for causing injury to Muhammad Sharif (P.W.) and sentenced to two years imprisonment with Arsh equivalent to 5% of the Diyat amount.

(iii) Under sections 337-F(i) and 337-F(ii), P.P.C. for causing injuries to Muhammad Iftikhar injured P.W. and sentenced to six months and two years imprisonment with Daman amounting to Rs.3,000 and Rs.5,000 respectively; and

(iv) Under section 337-F(i)/34, P.P.C. for causing injury to Maqsood Ahmad complainant and sentenced to six months imprisonment with Daman amounting to Rs.3,000.

All the sentences were directed to run concurrently and benefit of section 382-B, Cr.P.C. was also extended.

2. The leaned counsel for the petitioner-appellant has contended that only one injury with the Chhuri was attributed to the petitioner-appellant Azeem on the eyebrow of Muhammad Sharif P.W. falling within the ambit of section 337-A(ii), P.P.C. for which the petitioner-appellant has been sentenced to two years imprisonment; that the petitioner is behind the bars since 19-8-2003; that according to Investigating Officer Muhammad Riaz S.-I. (P.W. 11) when the petitioner along with the co-convict was arrested, they were in injured condition, whose injury statements were prepared and they were sent to the hospital for medical examination, but the same were not available on the record, which shows that injuries sustained by the accused party were suppressed by the complainant party and the occurrence had not taken place in the manner narrated by the prosecution; that the petitioner was not attributed any injury on the person of the deceased; that only one simple injury on the person of the P.W. was attributed to the petitioner and keeping in view the findings arrived at by the learned Court in the impugned judgment the petitioner cannot be held liable for sharing common intention with the co-accused and he is entitled for suspension of sentence.

3. The learned counsel for the complainant has opposed this application on the ground that the petitioner is vicariously liable for the murder of deceased Muhammad Ashraf and he has been convicted in view of the role attributed to him by the learned trial Court; that three injured P.Ws. have supported the prosecution story; that the co-accused were declared proclaimed offenders, who are real brothers of the petitioner; that at the time of occurrence, the deceased was sitting in the shop and the accused party had come at the place of occurrence from the distance of one and half kilometers while armed with Chhuris, which shows that the it was premeditated occurrence and the petitioner is vicariously liable for the offence. Relies upon Muhammad Nawaz v. The State 1997 SCMR 1521 to contend that the august Supreme Court had recalled the order for suspension passed by this Court of the convicts who were attributed ineffective firing during the incident only while in the present case the petitioner had actively participated in the occurrence by causing injury on the person of one injured P.W.

4. The learned State Counsel has also opposed this petition on the ground that sentence has been recorded by the learned trial Court only two months earlier and there is no justification for suspending the same.

5. I have heard the learned counsel for the parties and perused the impugned judgment.

6. The learned trial Court in para. No.40 of the judgment did not rely upon the motive. In para. No.35 it was held that the element of pre-meditation was lacking in the present case. Then in para. No.37 the learned trial Court observed that "Had the deceased stopped abusing perhaps the occurrence would not have been committed". Para. No.39 of the -impugned judgment is reproduced' here for ready reference:

"As a result of above discussion and keeping in view the evidence and other circumstances of the case, it is clear that light took place due to abusing of the deceased Ashraf and in heat of passion, this occurrence took place. Both the parties night have concealed the real truth. The element of pre-meditation is lacking to some extent."

It shows that the occurrence had taken place at the spur of moment. The petitioner-appellant had not been attributed any injury to the deceased and only one injury was attributed to him on the person of Muhammad Sharif P.W., which according to the medical evidence falls within the ambit of section 337-A(ii), P.P.C. and the petitioner-appellant has been sentenced to two years imprisonment for the said injury by the learned trial Court. He had not repeated the injury. Keeping in view the role attributed to the petitioner and the findings arrived at by the learned trial Court, whether the petitioner can be held vicariously liable for the other offences along with the co-accused is a question to be finally determined by this Court, but there is no possibility of hearing of the main appeal in the near future. The petitioner is behind the bars since 19-8-2003 and he has already undergone the sentence awarded to him for his individual act. If after the conclusion of the main appeal, the appellant is acquitted for the other offences, the period to be undergone by him in jail in the meanwhile will not be compensated in any manner. Even otherwise, perusal of para. No.36 of the impugned judgment also shows that the accused party had also sustained injuries during the occurrence, which were suppressed by the prosecution and it appears that the occurrence had not taken place in the manner narrated by the prosecution. The case-law relied upon by the learned counsel for the complainant is not applicable to the facts and circumstances of the present case. It is well-established principle of law that each and every criminal case to be decided on its own facts and circumstances and no hard and fast rule can be laid down in this regard. The petitioner cannot be kept behind the bars as a punishment only for the reason that his two real brothers have c been declared proclaimed offenders in the present case as everyone has to be accounted for his own act.

7. Consequently, this bail petition is accepted, the operation of sentences of the petitioner is suspended and he shall be released subject to furnishing bail bonds in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court.

N.H.Q./M-30/L ?????????????????????????????????????????????????????????????????????? Sentence suspended.