PLJ 2024 Cr.C. (Note) 17
[Lahore High Court, Multan Bench]
Present: Sadiq Mahmud Khurram and Muhammad Amjad Rafiq, JJ.
QAMAR ABBAS and another--Petitioners
versus
STATE etc.--Respondents
Crl. A No. 1042 of 2022, Crl. Misc. No. 3/2023, decided on 5.10.2023.
Criminal Procedure Code, 1898 (V of 1898)--
----S. 426--Pakistan Penal Code, (XLV of 1860), Ss. 302/324/337 F(vi)/148/149--suspension of sentence--Benefit of doubt--Released on bail during pendency of trial--Injury attributed to Asif Raza alias Aapi was on person of Nawab injured--Criminal liability of petitioner would well be determined after reappraisal of evidence at time of hearing of appeal--He has caused any injury to decease--Petitioner had not caused any injury to deceased, he was given role of causing injury with pistol which hit right shin of Ehsan ul Haq injured--Accused Mubashir was also given role of making fire shot with pistol on right leg beneath knee of said injured--Their individual liability might have been determined--There was only one injury found on right leg--Both petitioners have made out a case for further inquiry--Appeal is not likely to be fixed and heard in near future--Application is allowed.
[Para 3 & 4] B, C, D & H
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 426/497--Principles of bail--Suspension of sentence--Principles of bail are applicable on petition for suspension of sentence.
[Para 3] A
2012 SCMR 997; 2014 SCMR 7 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 426/497--Principles of bail--Suspension of sentence--Benefit of doubt if any can be extended while suspending sentence of accused.
[Para 4] E
2022 SCMR 1555 ref.
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 426/497--Principles of bail--Suspension of sentence--Section 497 Cr.P.C is pari-materia to Section 426 Cr.P.C. [Para 4] F
Criminal Procedure Code, 1898 (V of 1898)--
----Ss. 426/497--Principles of bail--Suspension of sentence--Release on bail during pendency of criminal trial--Both petitioners had remained on bail during trial--This fact can also be considered at this stage of proceeding. [Para 4] G
1994 SCMR 1206 ref.
Mr. James Joseph, Advocate for Petitioners.
Malik Riaz Ahmad Sagla, Deputy Prosecutor General for State.
Kh. Qaiser Butt, Advocate for Complainant.
Date of hearing: 5.10.2023.
Order
Crl. Misc. No. 3/2023
This is third petition on behalf of the petitioners under Section 426, Cr.P.C., first one (Crl. Misc. No. 1/2023) was dismissed as withdrawn on 23.01.2023 and the second (Crl. Misc. No. 2/2023) was also dismissed as withdrawn vide order dated 30.05.2023. Through the instant petition the petitioners (Qamar Abbas and Asif Raza alias Aapi) seek suspension of following sentences awarded by learned trial Court vide judgment dated 24.10.2022 in case FIR No. 301 dated 15.05.2021 under Sections 302, 324, 337-F(vi), 148, 149, PPC registered at Police Station Karor Lal Eason, District Layyah:--
i) Simple Imprisonment for ten years with fine of
Rs. 100,000/- each, under Section 324, PPC, in default of payment of fine further 6 months’ S.I, and
ii) Simple imprisonment for five years with daman of
Rs. 50,000/- each under Section 337-F(iv), PPC.
There is no order about concurrent running of above sentences, however benefit of Section 382-B, Cr.P.C. was extended.
2. Heard. Record perused.
3. Principles of bail are applicable on petition for suspension of sentence as held by Hon’ble Supreme Court of Pakistan in cases reported as “Mazhar Ahmed versus The State and another” (2012 SCMR 997) and “Iftikhar Ahmed versus The State and others” (2014 SCMR 7) The injury attributed to Asif Raza alias Aapi was on the person of Nawab injured (PW-6) and such injured had already been targeted by Qaisar Abbas accused with the same type of weapon of offence and two injuries on the person of Nawab injured were also attributed to him, therefore, criminal liability of the petitioner would well be determined after reappraisal of evidence at the time of hearing of the appeal as he has not caused any injury to the deceased.
4. So for as petitioner Qamar Abbas is concerned he had not caused any injury to deceased, he was given the role of causing injury with pistol which hit the right shin of Ehsan-ul-Haq injured but surprisingly accused Mubashir was also given the role of making fire shot with pistol on the right leg beneath the knee of said injured Ehsan-ul-Haq. In other circumstances, their individual liability might have been determined but the medical evidence clearly reflects that there was only one injury found on the right leg and the prosecution in order to inflate the version used the exit wound for criminal liability of one of these two accused persons, therefore, both the petitioners have made out a case for further inquiry because even benefit of doubt if any can be extended while suspending the sentence of the accused. In the recent case “Muhammad Arshad versus The State and another (2022 SCMR 1555) the Hon’ble Supreme Court of Pakistan has upheld the order of High Court for suspension of sentence while observing that Section 497, Cr.P.C. is pari-materia to Section 426, Cr.P.C. Further the judgment of the learned trial Court is also reflective of the fact that both the petitioners had remained on bail during trial, therefore, this fact can also be considered at this stage of proceeding. Reliance is placed on the case law reported as Rafaqat Ahmad vs The State (1994 SCMR 1206). The conviction was recorded against the petitioners vide judgment dated 24.10.2022 and they are behind the bars, whereas, the appeal relating to the year 2022 is not likely to be fixed and heard in the near future. Consequently, this application is allowed and sentences of the petitioners are suspended. They shall be released on bail, subject to furnishing bail bonds in the sum of Rs. 1,00,000/- (one lac) each with one surety each in the like amount to the satisfaction of Deputy Registrar (Judl.) of this Court. In addition to above, both the petitioners shall also deposit surety bond equal to amount of Daman, respectively. They are directed to appear before this Court on each and every date of hearing till the final disposal of the appeal.
(K.Q.B.) Application allowed
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