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Criminal Miscellaneous No. 1 in Criminal Appeal No.-107 of 1984, decided on 23rd October, 1984.

---S. 426---Penal Code (XLV of 1860), S. 302--Bail, grant of--Except coming to spot empty-handed no other evidence on record to commit petitioner with commission of offence--Acquitted co-accused attributed similar role, but on same evidence petitioner convicted--Sentence suspended and petitioner allowed bail, in circumstances.

Muhammad Bashir Khan for Petitioner.

Tasadaq Hussain Jilani, for A.A.-G. for the State.

This application for the suspension of sentence has been moved on behalf of Anwar petitioner, who stands convicted with Riaz and Iqbal, his co-appellants, under section 302; 323/34, P.P.C. for having committed the murder of Bahadur Ali and causing injuries to Murid Hussain. Iqbal above-mentioned was sentenced to death plus fine whereas the petitioner and his co-appellant Riaz were awarded life imprisonment plus fine by Sessions Judge, Sahiwal, vide order dated 2-5-1984.

2. It has been argued on behalf of the petitioner that, according to the prosecution, he had gone to the spot empty handed and caused no injury whatsoever to the deceased. He next submitted that the allegation that the petitioner alongwith his father Abdul Hakim took Bahadur Ali in Jappha and facilitated Iqbal to deal fatal blow in his chest is completely unfounded, firstly because Abdul Hakim, co-accused, has been acquitted yet on the basis of the same evidence the petitioner has been convicted and secondly, there was hardly any need for the petitioner to hold the deceased as Iqbal could cause the solitary fatal injury single handedly. As against this, learned A.A.-G. submits that it was the petitioner who was involved in the initial incident and in the sequal thereto the main occurrence took place. He, therefore, submits that the case of the petitioner is fully covered by section 34, P.P.C. and is not entitled to the concession of bail.

3. Having considered the arguments of learned counsel for both the parties we find that the petitioner admittedly went to the spot empty-handed and did not even exhort Iqbal to kill the deceased. Again, Abdul Hakim who was attributed similar role has been acquitted but on the same evidence the petitioner had been convicted. Be that as it may, without expressing on merits, in the circumstances of the case, we feel inclined to allow this petition. Accordingly, the sentence of the petitioner is hereby suspended who shall be released subject to his furnishing security bond in the sum of Rs. 20,000 (Rupees twenty thousand only) with two sureties each in like amount to the satisfaction of A.C./Duty Magistrate, Sahiwal.

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