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Criminal Petition No. 306 of 1982, decided on 20th October, 1982.

(On appeal from the judgment dated 13th June; 1982 of the Lahore High Court, Lahore in Criminal Appeal No. 256/1982).

‑‑‑ Art. 185(3) read with Penal Code (XLV of 1860), S. 302/149 Murder‑Evidence‑High Court, pending appeal against conviction, suspending sentence of five of accused but dismissing such prayer made by four other co‑accused‑Contention that no distinction existed between cases of two sets of accused persons appears to be correct Held, notwithstanding similarity of accused, discretion exercised by High Court in a matter still pending before it cannot be interfered with by Supreme Court.

Ch. Nabi Ahmad Cheema, Advocate Supreme Court and Ch. Mehdi Khan Mahtab, Advocate‑on‑Record for Petitioners.

Nemo for the State.

Date of hearing : 20th November, 1982.

The petitioners alongwith their co‑accused, have filed an appeal before the Lahore High Court against their conviction under section 302/149, P. P. C. for which they were sentenced to life imprisonment and against their conviction for other offences for which also they have been imposed various sentences. These have been ordered to run concurrently with the sentence under section 302/149, P. P. C. They also applied, along with 8 other co‑accused, for suspension of their sentence pending the final hearing of the appeal filed by them in the High Court.

2. A learned Single Judge of the High Court, by his order dated 10‑6‑1982, suspended the sentence of five of their accused on the ground that "the injuries attributed to them were found to be simple." The prayer for suspension (if sentence by the petitioners, as also of four other co‑accused, has, however, been dismissed on the ground that the exact part played by their can only be determined "after appreciation, of the evidence."

3. Learned counsel for the petitioners herein submits that no distinction exists between the case of the accused persons whose prayer for suspension of sentence has been accepted and that of the present petitioners. This submis sion, prima facie, appears to be correct.

4. However, as we would not like to interfere with the discretion exercised by the High Court in a matter which is still pending before it we would, accordingly, dismiss this petition on this ground. The petitioners may, however, if so advised, again approach the learned High Court for relief.

5. This petition, with these observations, is dismissed.

Petition dismissed.

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