GUL KAMAND KHAN and 3 others vs THE STATE
The petitioners, along with others, were convicted by the Additional Sessions Judge, Mianwali, for the murder of Sher Bahadar. While a co-convict was sentenced to death, the petitioners were convicted under Section 324/34 of the Pakistan Penal Code 1860 and sentenced to ten years rigorous imprisonment. They sought suspension of their sentences pending appeal, arguing that only ineffective firing was attributed to them, they were not linked to the motive, and co-accused with similar roles had been acquitted. The prosecution opposed the suspension, citing the severity of the sentence. The Court observed that the petitioners were similarly situated to co-accused who had been acquitted, with the only distinction being the recovery of weapons, which the Court found insufficient to deny relief given the circumstances. Consequently, the Court held that where the role attributed to the convicts is identical to that of acquitted co-accused, and the primary evidence of recovery is tenuous, the suspension of sentence is warranted. The Court allowed the application, suspending the sentences subject to the furnishing of bail bonds.
- Can the sentence of a convict be suspended pending appeal if the role attributed to them is identical to that of co-accused who were acquitted?
- Does the recovery of a weapon alone justify the conviction of an accused when no other evidence connects them to the crime scene?
- Is the suspension of sentence permissible for a convict who remained on bail throughout the trial?
- Section 324, Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 302-B, Pakistan Penal Code 1860
ORDER
' Petitioners/appellants, along with seventeen others. Were tried for the murder of Sher Bahadar and vide judgment dated 1-10-2001 passed by the learned Additional Sessions Judge, Mianwali, while acquitting the rest, petitioners/appellants along with co-convict Muhammad Sher were convicted under section 324/34, P.P.C. And sentenced to ten years R.I. Each with a fine of Rs,10,000 each in default whereof to undergo R.I. For one year each while there, co-convict Gul Muhammad was convicted under section 302-B, P.P.C. And sentenced to death with a compensation of Rs,1,00,000 to be paid to the legal heirs of the deceased in default whereof he was further directed to undergo S.-I. For six months.
2. Learned counsel for the petitioners Samiullah Khan and ,Saddullah Khan seeks suspension of their sentence on the grounds that only ineffective firing is attributed to them; that they are not connected with the motive part of the prosecution story, that two co-accused, namely, Ajmal Khan and Majeebullah Khan, who were attributed similar role, have been acquitted by the learned trial Court and the petitioners were convicted merely because they allegedly led to recovery of weapons of offence which recovery, according to the learned counsel, is of no avail as no empty was recovered from the spot to connect the petitioners with the alleged occurrence.
3. Learned counsel for the State opposed the petition by submitting that the petitioners have been convicted and sentenced to ten years R.I. Each with a fine of Rs,10,000 each and it is too early to pray for suspension of their sentence.
4. Heard.
5. Admittedly, only ineffective firing is attributed to Samiullah Khan and Saadullah Khan petitioners/appellants/convicts and their co-accused Ajmal Khan and Najeebullah, who were attributed similar role, have been acquitted by the learned trial Court. The only distinguishing feature which found favour-with the learned trial Court to convict these petitioners given in para. 28 of the judgment, is that they led to the recovery of .12 bore gun. They remained on bail during the trial. In these circumstances we are inclined to allow this application and direct that the sentences of petitioners, Samiullah Khan and Saadullah Khan shall remain suspended till the final disposal of the appeal provided they furnish bail bonds in the sum of Rs,50,000 each with one surety each in the like amount to the satisfaction of the learned trial Court.