BASHARAT ALI and anothers vs THE STATE

ORDER

' Applicants-convicts Basharat Ali son of Muhammad Ishaq and Muhammad Sarfraz son of Muhammad Hanif, seek suspension of their sentences awarded to them by learned Additional Sessions Judge, Shakargarh vide judgment, dated 26-5-1996 in case F.I.R. No,103 of 1993, dated 25- 8-1993 under sections 302/148/149, P.P.C. Police Station Nurkot wherein applicants-convicts alongwith ten others were tried and while acquitting rest of the accused, the learned trial Court convicted them under section 30'2/34, P.P.C. And sentenced them to imprisonment for life for the murder of Muhammad Sarwar. They were also burdened with a compensation of Rs,50,000 to be paid to the legal heirs of the deceased in default whereof to further undergo simple imprisonment for 6 months each.

2. The prosecution story as given in the F.I.R. Briefly stated is that on the fateful day Muhammad Sarwar had a quarrel with Muhammad Ishaq father of Basharat Ali applicant-convict 9/10 days prior to the occurrence. The matter, however, was patched up. On the fateful day, Muhammad Sarwar deceased was grazing goats. At about 2-00 p.m. He was attacked by the accused who were variously armed. Muhammad Ishaq was armed with Chhuri; Basharat Ali applicant-convict was allegedly armed with Chhuri Muhammad Akram; Muhammad Hanif, Muhammad Nazir and Muhammad Sarfraz applicant-convict were armed with Sotas. They belaboured Muhammad Sarwar in consequence of which, he received 14 injuries out of which some were incised wounds while the others were bruises; swellings and contusions caused by the blunt weapon. Initially, the police challaned all the accused mentioned in the F.I.R. But subsequently, a supplementary challan qua the remaining four accused was also submitted out of which three were fugitive to law whereas eight were tried alongwith those mentioned in the F.I.R.

3. Learned counsel for the applicants-convicts has sought suspension of sentence on the grounds that there was no recognizable difference between role assigned to the convicts and those acquitted, therefore, the conviction of the applicants convicts is not tenable in law; that the so- called Chhuri recovered from Basharat Ali applicant-convict is not connected with the alleged offence as the same was not blood-stained; that the main distinguishing feature which found favour with the learned trial Court in convicting the applicants-convicts and acquitting the remaining accused was statement of the Investigating Officer P.W.11 which distinction according to learned counsel is against the law declared and that the conviction recorded has led to a grave miscarriage of justice in so far as the applicants-convicts is concerned. Learned counsel relies on the following judgments:--

(i) Anwar v. The State 1985 M LD 1417, (ii) Faiz Ahmad and others v. The State 1979 PCr.LJ Note 32 at p.20, (iii) Rashid v. The State 1984 PCr.LJ 1138(1), (iv) Abdul Khaliq v. The State 1995 PCr.LJ 1528, (v)

Ghulam Nabi and others v. The State 1995 PCr.LJ 1606, (vi) Muhammad Afzal and another v. The State 1994 SCM R 453 and (vii) Muhammad Ramzan alias Ramzani v. The State 1996 SCM R 906.

4. Learned counsel for the State on the other hand, has vehemently opposed the prayer for suspension of sentence by submitting that the applicants-convicts were specifically named; that the prosecution case has been proved beyond doubt and that the points raised by learned counsel for the applicant-convicts cannot be gone into at this stage.

5. I have heard learned counsel for the parties and have given anxious thoughts to the arguments addressed at the Bar.

6. Applicants-convicts were specifically named in the F.I.R. Which was lodged promptly qua a day time occurrence. They were attributed specific role and the learned trial Court has sought corroboration of the said role from the medical evidence as also the factum of recoveries. The question whether in the instant case the circumstantial evidence of recoveries can be relied upon or whether the learned trial Court could proceed to convict the applicants-convicts on the ocular account read with the medical evidence is a question which of necessity would call for a deeper appreciation of evidence which exercise cannot be undertaken at this stage. Again whether the statement of P.W.11, the Investigating Officer declaring the co-accused who stand acquitted to be innocent and holding applicants-convicts to be involved in the occurrence could be one of the grounds for the learned trial Court to create distinction between the case of the applicants- convicts and those of the co-accused would also require a deeper appraisal of evidence on record because the statement of the Investigating Officer is to be read alongwith other incriminating material on record. The case-law to which reference has been made by learned counsel for the applicants-convicts, either pertains to appeal cases or is distinguishable both on factual and legal plan. For instance. In Rashid v. The State 1984 PCr.LJ 1138(1); it was a case under section 363, P.P.C.

And there as a delay of eight days in lodging the F.I.R. The alleged abductee had merely come to see the applicant and she had already left him when the case was registered. In Anwar v. State 1985 M LD 1417 the applicant was empty-handed and no specific role had been assigned to him. In Faiz Ahmad and others v. The State 1979 PCr.LJ Note 32 at p.20, the learned trial Court had convicted the applicant-convict on misreading of material evidence by holding that he had caused grievous injury whereas the injuries were simply abrasions and contusions. In Abdul Khaliq v. The State 1995 PCr.LJ 1528, the application for suspension of sentence was dismissed as the points raised merited deeper appreciation of evidence. In Ghulam Nabi and others v. The State 1995 PCr.LJ 1606 sentence was suspended as admittedly, the prosecution witnesses could not identify the assailants at night, they did not mention their features; no specific role was assigned to them and that there was evidence to the effect that prior to the holding of identification parade they were shown to the witnesses. In Muhammad Afzal and another v. The State 1994 SCM R 453, the sentence was suspended as the medical evidence contradicted the ocular account and in Muhammad Ramzan alias Ramzani v. The State 1996 SCM R 906, it was an appeal case and does not lay down any principle in so far as the suspension of sentence is concerned.

7. For afore-referred reasons, there is no merit in this application for suspension of sentence which is hereby dismissed.