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Criminal Appeals Nos.309, 336 and Murder Reference No.8304 of 2013, decided on 15th August, 2014.

----S. 426---Penal Code (XLV of 1860), S. 302---Qatl-i-amd---Suspension of sentence---Appreciation of evidence---Scope---Accused sought suspension of sentence as he was convicted by Trial Court and sentenced to imprisonment for life---Validity---Appraisal of evidence in depth was neither warranted nor desirable while dilating upon and deciding application for suspension of sentence---Court should confine itself to judgment assailed before it and thorough scrutiny of evidence and its evaluation should be made while adjudicating upon appeal as it would be opportune moment for doing so and not while deciding application moved under S. 426, Cr.P.C., as it was premature stage---Conviction could not be set aside while exercising jurisdiction as conferred under S. 426, Cr.P.C. on the grounds with reference to evidence and merits of the case which required a thorough probe and deeper scrutiny of evidence which should be avoided---Where on perusal of facts in judgment passed by Trial Court, the appellate Court had come to the conclusion that judgment suffered from any legal error, it would be justified to suspend the sentence and grant bail---Accused could not point out any legal error in judgment passed by Trial Court and at such stage finding recorded by Trial Court was to be given due weight---High Court declined to suspend judgment passed by Trial Court---Application was dismissed in circumstances. Mazhar Ahmed v. The State and another 2012 SCMR 997 and Shakeel Ahmed and another v. The State Criminal Petition No. 40-K of 2014 distinguished. Muhammad Ashraf Kazi for Appellant. Abrar Ali Khichi, A.P.-G. for the State.

The appellant Saleem Khadera seeks suspension of the sentence awarded to him by learned Sessions Judge, Karachi South in Sessions Case No.733 of 2005 (State v. Muhammad Imran and others). After full-addressed trial, by Judgment dated 30-10-2013 the appellants Muhammad Imran, Jehanzeb and Saleem Khadera were convicted under section 302(b) read with section 34, P.P.C. and sentenced to imprisonment for life and to pay compensation of Rs.50,000 each to the legal heirs of the deceased. Mr. Muhammad Ashraf Kazi, learned counsel for the appellant Saleem Khadera mainly argued that allegation against the applicant was of catching hold to the deceased and sharing of common intention. He submitted that the case against the applicant Saleem Khadera was doubtful. Trial court did not appreciate evidence properly. He argued that there is no chance of maintaining conviction and sentence awarded by trial Court. In support of his contentions, he relied upon the cases reported as Mazhar Ahmed v. The State and another (2012 SCMR 997) and the order passed by Hon"ble Supreme Court in Criminal Petition No.40-K of 2014 (Shakeel Ahmed and another v. The State). Mr. Abrar Ali Khichi, learned A.P.G. opposed the suspension of sentence on the ground that the trial court after recording the evidence came to the conclusion that appellant Saleem Khadera was equally liable for committing the murder of the deceased Malik Safeer. He further argued that deeper appreciation of evidence can only be done at the time of hearing of the appeal. After hearing the learned counsel for the parties, I have come to the conclusion that there is no merit in the application under section 426, Cr.P.C. for the simple reason that it is well settled legal position that appraisal of evidence in depth is neither warranted nor desirable while dilating upon and deciding such application. A Court should confine itself to the judgment assailed before it. A thorough scrutiny of evidence and its evaluation should be made while adjudicating upon the appeal as it would be opportune moment for doing so and not while deciding the application moved under section 426, Cr.P.C. as it would be a premature stage. A conviction cannot be set aside while exercising jurisdiction as conferred under section 426, Cr.P.C. on the grounds with reference to evidence and merits of the case which certainly require a thorough probe and deeper scrutiny of evidence which should be avoided. It is well-settled by now that the discretion has to be exercised judiciously by considering the relevant facts without entering or commenting upon the merits of the case. If the contention raised, requires consideration of merits, the Appellate Court would refrain from entertaining such contentions. At this stage, the Court cannot enter into a re-appraisal of evidence which should be considered at the time of hearing of the appeal. Where on perusal of the facts in the judgment impugned, the Court comes to the conclusion that the judgment suffers from any legal error, it would be justified to suspend the sentence and grant the bail. Learned advocate for appellant Saleem could not point out any legal error in the impugned judgment. At this stage finding recorded by trial Court is to be given due weight. In my humble view above cited authorities are not applicable to circumstances of this case. The application being devoid of merits is dismissed. MH/S-74/Sindh Application dismissed.

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