IN THE SUPREME COURT OF PAKISTAN
(APPELLATE JURISDICTION)
PRESENT:
MR. JUSTICE IJAZ UL AHSAN
MR. JUSTICE MUNIB AKHTAR
MR. JUSTICE SAYYED MAZAHAR ALl AKBAR NAUVI
CRIMINAL PETITION NO. 1603-L OF 2021
(On appeal against the order dated 09.112021 passed
by the Lahore High Court, Lahore in Criminal Appeal
No. 7301/2021)
Muhammad Arshad
Petitioner
Versus
The State and Babar Abbas
...Respondent(s)
For the Petitioner: 
Mr. Mushtaq Ahmed Mohal, ASC
(through video link from Lahore)
For the State: Mirza Muhammad Usman, DPG
For the Respondent (2): Mrs. Nighat Saeed Mughal, ASC a/w Babar
Abbas (via video link from Lahore)
Date of Hearing: 
13.04.2022
JUDGMENT
SAYVED MAZAHAR ALl AKBAR NAQVI, J. Through the instant petition under
Article 185(3) of the Constitution of Islamic Republic of Pakistan, 1973, the
petitioner has assailed the order dated 09,11,2021 passed by the learned
Single Judge of the Lahore High Court, Lahore, whereby the application for
suspension of sentence filed by the respondent was allowed and he was
granted bail.
2. Briefly stated the facts of the matter are that the respondent
Babar Abbas along with two co-accused was tried by the learned Trial Court
pursuant to a case registered vide FIR No. 529/2019 dated 07.09.2019 under
Sections 302/148/149 PPC at Police Station Cantt, Gujranwala for committing
murder of Munawar Hussain, brother of the complainant. The learned Trial
Court vide its judgment dated 22.12.2020 while acquitting the co-accused,
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convicted the respondent under Section 302(b) PPC and sentenced him to
imprisonment for life along with payment of compensation of Rs.500,000/-
payable to the legal heirs of the deceased or in default whereof to further
undergo six months SI. Against the said judgment, the respondent filed
Criminal Appeal No. 7301/2021 before the learned Lahore High Court.
However, during the pendency of the said appeal, he filed Criminal Misc. No.
01/2021 under Section 426 Cr.P.C. seeking suspension of his sentence, which
has been allowed vide impugned order, Hence, this petition filed by the
petitioner/complainant seeking leave to appeal.
3.
At the very outset, it has been argued by learned counsel for
the petitioner that the impugned order amounts to deeper appreciation of
the merits of the case, which is not permissible at the time of hearing an
application for suspension of sentence. Contends that the respondent was
found guilty by the learned Trial Court after recording of evidence and mere a
minor contradiction in the statement of the eye-witnesses does not absolve
him of his criminal liability. Contends that the respondent had actively
participated in the occurrence, therefore, he cannot be enlarged on bail.
Lastly contends that the impugned order is the result of misreading and non-
reading of evidence and is not sustainable in the eyes of law.
4.
On the other hand, learned counsel for the respondent No. 2
while defending the impugned order contended that there are major
contradictions in the statements of the prosecution witnesses and medical
evidence, which have rightly been taken note of by the learned High Court
while handing down the impugned order. Contends that though deeper
appreciation is not permissible while suspending the sentence, however, in
the interest of justice where the case is wide open then it is incumbent upon
the court to decide the us on the basis of material available on the record.
Contends that the case of prosecution is advanced by Waqas Ali (PW-8) and
Muhammad Arshad, complainant (PW-9) and they have made improvements
in their statements, which is clear cut deviation from the original stance and
as such the benefit of the same can be extended in favour of the respondent.
Contends that there was specific allegation of causing firearm injuries by the
three assailants but as per the medical record the deceased sustained only
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one injury and that has been made basis by the learned High Court while
suspending the sentence and the same is in accordance with the dictates of
justice.
5. We have heard learned counsel for the parties at some length
and have perused the record with their able assistance
The learned High Court while suspending the sentence inflicted
upon the respondent No. 2 by the learned Trial Court mainly observed that
according to the crime report, the respondent along with two co-accused
while each armed with 30 bore pistol had made three separate fire shots
upon the person of the deceased, which landed on his belly but the assertion
of the prosecution witnesses is contradicted by Dr. Azhar Ali Khan (PW-7),
according to whom, the deceased sustained only one injury on his belly.
During course of trial while appearing as PW-8 and PW-9, both the
prosecution witnesses namely Waqas Ali and complainant Muhammad
Arshad had improved their earlier stance and stated that it was only the
respondent whose fire landed on the belly of the deceased. The possibility
cannot be ruled out that the prosecution witnesses deviated on the advice of
the counsel or otherwise, therefore ) the same cannot be made basis to keep
a person behind the bars for indefinite period especially when the
Investigating Officer has candidly stated that the empties recovered from the
place of occurrence had not been fired by the pistol allegedly recovered at
the instance of the respondent. It is now established beyond any doubt that
benefit of doubt can be extended even at preliminary stage i.e. bail &
suspension of sentence The learned High Court while suspending the
sentence had taken note of this fact coupled with the fact that there is
previous enmity between the parties as earlier the deceased was involved by
the respondent in a case bearing FIR No. 469/2019 under Sections
324/148/149 PPC. Even otherwise, while drawing analogy with the well
settled law that the principles for grant of bail and cancellation whereof are
entirely on different footing, the case of the petitioner can be adjudged
within the parameters enunciated by this Court from time to time. All these
facts and circumstances when evaluated conjointly, compel this Court to
come to the conclusion that the learned High Court while suspending the
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Criminal Petition No. 3603-1/2022 
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sentence had taken care of justiciable facts and circumstances and no
exception can be taken contrary to what has been observed by the High
Court in the order impugned before us. As a consequence, this petition
having no merit is accordingly dismissed and leave to appeal is refused,
Islamabad, the
 
13th of April, 2022
Approved For Reporting
MM
