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Criminal Miscellaneous No. 1 in Criminal Appeal No. 62 of 1983, decided on 23rd August, 1983.
---S. 426--Suspension of sentence during pendency of appeal--Conviction based on last seen evidence and pointing of place of occurrence by accused--Evidence of deceased being last seen with accused, at its face value, needed serious consideration as to whether, it could be termed as such--Evidence of indication of place of occurrence by accused from where dead body was got recovered also required serious consideration as to its admissibility in evidence--Execution of sentence suspended without expressing any opinion on merits of appeal.
Malik Muhammad Din for Petitioner.
Nazir Ahmad Bhatti for the State.
Date of hearing: 23rd August, 1983.
This is an application under section 426, Cr.P.C. on behalf of Naseer Ahmad, petitioner, for the suspension of the execution of sentence. He stands convicted under section 364 and section 201, P.P.C. and sentenced to six years' R.I. and two years' R.I., respectively, with the direction that the sentences would run concurrently.
2. Learned counsel for the petitioner has submitted that the evidence relied on by the learned trial Court does not exclude the hypothesis of the innocence of the petitioner and that the statements made by Nazir Ahmad P.W. 4 and Hafiz Akhtar Shah, P.W.5 are contradictory.
As against this the learned counsel for the State has opposed this application on the ground that the contentions of the learned counsel for the petitioner require deep appreciation of the evidence which may not be proper at this stage.
3. I have considered the arguments advanced by the learned counsel for the parties with care. Since this Court is not expected to appreciate the evidence deeply, therefore, I proposed to consider the infirmities apparent on the face of the judgment. I find that the conviction of the petitioner has been based on the last seen evidence supported by Nazir Ahmad, P.W.4 and Hafiz Akhtar Shah P.W.5 corroborated by pointation by petitioner of the place where Ghulam Rasool abductee was allegedly murdered, supported by Muhammad Din P.W.2, Pir Bux P.W.6 and Muhammad Din S.I. P.W.10.
4. As for the last seen evidence I find that the learned trial Court in its judgment has stated:--
"P.W.4 Nazir Ahmad has deposed that on the relevant time; Muhammad Younas accused sent him (the witness) to call Ghulam Rasool from his house. The witness went to the house of Ghulam Rasool and conveyed the message to Ghulam Rasool who reached at the shop and after Maghrib prayer Muhammad Younas and Naseer Ahmad accused went 'away from the shop at 10-15 minutes thereafter Ghulam Rasool (deceased) went away from the shop. To my mind whether this statement accepted at its face value can be termed as an evidence of last seen or not, needs serious consideration.
As for the corroborative piece of evidence i.e. pointation of the spot, I find that the learned trial Court in its judgment has stated that:-
"P.W.2 Muhammad Din, P.W.6, Peer Bux and P.W.10 Muhammad Din S.I. Police, have deposed about the pointation of the place of murder by Muhammad Younas accused and Naseer Ahmad accused one after the other. The pointation of same place alleged to be the Place of murder by both the accused persons namely Muhammad Younas and Naseer Ahmad indicates that the deceased was not only abducted but had been taken by both of them to the place where he was alleged to have been murdered."
I am of the opinion that the question whether the pointation of the spot by the petitioner from where the dead body was got recovered and which had already been discovered by the police on the pointation of the co-accused Muhammad Younas, is admissible in evidence or not also requires serious consideration.
4-A. For what has been stated above, without making any expression of the opinion lest it may prejudice the merits of the appeal I am inclined to suspend the execution of the sentence of the petitioner provided he furnishes bail bond in the sum of Rs.10,000 (Rupees ten thousand only) with one surety in the like amount to the satisfaction of the Assistant Commissioner/ Duty Magistrate, Hasilpur.
S.A./4606/L Petition accepted.
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