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Criminal Petitions Nos. 56‑R and 63‑R of 1983, decided on 18th October, 1983.
(On appeal from the judgment and order dated 24th May, 1983 of the Lahore High Court, Rawalpindi Bench passed in Cr. Misc. No. 183/B of 1983).
‑‑ S. 426‑Penal Code (XLV of 1860), Ss. 302 & 307 read with S. 34‑Suspension of sentence‑Court can, if it appears on face of judgment, form a tentative opinion, it is exercise of discretion and to all intents and purposes opinion is tentative.
Kh. Muhammad Yusuf Saraf, Advocate Supreme Court instructed by Ch. Karam Elahi Bhatti, Advocate‑on‑Record for Petitioner (in both Petitions).
Khan Imtiaz Muhammad Khan, Advocate Supreme Court for Respon dent No. 1 (in both Petitions).
Rao M. Yousuf .Khan, Advocate Supreme Court for the State (in both Petitions).
Date of hearing : 18th October, 1983.
This order will govern Cr. P. S. L. A. No. 56‑R of 1983 and Cr. P. S. L. A. No. 63‑R of 1983, by which the High Court by separate orders suspended the sentence of Fazal Ellahi and Yaqoob under section 426, Cr. P. C. Both of them were convicted under sections 302 and 307 read with section 34, P. P. C. On the first count they were, sentenced to life imprisonment and fine, and on the second count to five years' R. I. and fine in the same amount.
2. While suspending 'the sentence of Fazal Ellahi, a Division Bench of the High Court upon a perusal of the judgment prima facie held that the part attributed to him was not established as no sharp‑edged injuries were noticed on Ashraf. The Division Bench further held that as the incident took place outside the Heveli of Faiz Bakhsh, who has since been acquitted where Fazal Ellahi also resided, the question for consideration would also be that he had "run out in defence of one or more of his brothers". In other words, impliedly, the Court was of the tentative opinion that it was not a case of vicarious liability. As the case of Yaqoob was at par with Fazal Ellahi, his sentence was also suspended on this ground.
3. The petitioner has challenged the legality of the orders, but we fail to see any substance in it as the Court can, if it appears on the face of the judgment form a tentative opinion such as the one in the present case. It is an exercise of discretion and to all intents and purposes the opinion is tentative. Accordingly, it cannot be said to be injudicious. The petitions fail and are hereby dismissed.
M. Z. M Petition dismissed.
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