Mr. Justice Dost Muhammad Khan in his judgment has decided the issue regarding tentative assessment of evidence for suspension of sentence and grant of bail to the convict in Criminal Petition No. 634 of 2015.
1. The petitioner, Soba Khan, s/o Khan Muhammad has sought leave to appeal against the order/judgment of the learned Single Judge of the Lahore High Court, Multan Bench dated 8.7.2015 whereby, during pendency of his appeal against conviction and life imprisonment awarded to him by the Trial Court, his petition for grant of bail by suspending his sentence till disposal of the appeal was dismissed. We have heard Sardar Khurram Latif Khosa, learned ASC for the petitioner, Mr. Asjad Javed Goral, learned Additional Prosecutor General, Punjab while the complainant has left the country and was not represented.
2. The petitioner along with five co-accused were charged for effectively firing at the deceased namely Ghulam Mustafa, uncle of the complainant, namely, Allah Yar and causing his death while other two co-accused namely, Amir Bakhsh and Yar Muhammad were charged for conspiracy/abetment for the crime. Allegedly the occurrence took place at 5:30 pm while the report of the crime was lodged at the spot with S.I. Farid Bakhsh at 7:30 pm, on 11.04.2012, the day on which the tragedy took place.
3. Learned ASC for the petitioner vehemently contended that the impugned order/judgment of the learned Judge of the Lahore High Court has altogether thwarted the way of grant of bail in post conviction case, which is not in consonance with the provisions of S. 426 Cr.P.C. empowering the Appellate Court to grant bail to the convict by suspending his sentence and that, the mere view of the learned Judge that the points raised before him relate to deeper appreciation of evidence was based on misconception. No innocent person shall be left to rot in Jail if his case is fit for grant of bail, by way of suspension of his sentence because if in the long run he is acquitted like his co-accused then, he cannot be compensated for the long incarceration in Jail.
4. Learned State Counsel for the Government of Punjab defended the impugned order/judgment of the learned Single Judge of the Lahore High Court on the same grounds, given therein.
5. In the instant case, six accused in all were charged and it is alleged that all of them encircled the deceased and fired at him after one another with quick succession, hitting him on different parts of his body.
6. Learned ASC for the petitioner invited our attention to the postmortem report and the pictorial, annexed therewith, which contradict the ocular account, because the petitioner and the absconding co-accused have been attributed inflicting injuries on left neck of the deceased and the other acquitted accused has been attributed firing at the deceased which hit him on the back of his neck. The autopsy report and the pictorial, both undeniably reveal that the deceased has sustained only one firearm entry wound on the left side of neck while there are two exit wounds, one on the right side of the neck and the other on the lateral top of right shoulder, above the armpit.
7. It was stated at the bar that the majority of the accused, charged in the FIR were declared innocent in two consecutive investigations, conducted by the police; the one initially carried out by the first investigating officer and the second one on the application of the complainant, thus they were not recommended for trial and were placed in column No.II of the “Chalan” however, on a private complaint, lodged by the complainant with inordinate delay, the learned Trial Court took cognizance of it, after getting report from the Magistrate, who held inquiry into the matter and summoned all the accused, charged in the FIR to face the trial.
8. True that the principle of law is well settled that police opinion, even conclusive in nature, is not binding on the Court and it may disagree with the same but for the cogent reasons to be recorded. However, as it appears from the record, the learned Trial Judge has omitted to record such reasons.
9. The next crucial point in the matter is that, according to the allegations contained in the FIR and the complaint lodged with considerable delay, the crime was committed by all members of the unlawful assembly and each one of them participated in the crime, playing effective and active role of causing injuries to the deceased and evidence recorded at the trial is also the same so much so that one of the acquitted co-accused who has been attributed similar fatal injury like the petitioner, has been acquitted. Such a decision was taken by the Trial Court despite applicability of the provision of S.149 PPC attracting vicarious liability to each member of the unlawful assembly committing cognizable offence in prosecution of common object of that assembly. This provision further states that even a member of such assembly having simple knowledge that the offence was likely to be committed in prosecution of that object, shall be deemed to be guilty for that offence. This criminal liability is judicially phrased as, “A vicarious liability”.
10. It is indeed disturbing feature that similarly charged accused have been acquitted on the same set of evidence but the petitioner was convicted alone because the injury on the neck was found to be one of the fatal injuries in the autopsy report by the Medico-legal officer, ignoring the fact that for this solitary entry wound three persons have been charged including the petitioner. Whether it happened in the present case or not, but the probability is definitely there in view of the consistent opinion of the Jurists on Medicolegal science/jurisprudence that a single bullet after entering the deceased’s body either due to its spin, speed or hitting the hard part of the body like bone, fragmented and splintered pieces of bullet caused multiple exit wounds.
11. For grant of bail at post conviction stage, the Legislature has enacted the provision of S.426 Cr.P.C. which consists of main three sub-sections, three clauses and a proviso as well.
12. Like the provisions of S.497 and 498 Cr.P.C. the guiding principle and criteria including limitations on the powers of the Court not to grant bail in offences punishable with death, or imprisonment for life or for ten years falling within the prohibitory limb of S.497 Cr.P.C. has been omitted from the provision of S.426 Sub-S.(1) Cr.P.C.
13. Considering from a legal angle, the omission of these prohibitions, limitations and guidelines is meaningful because the Legislature did not deem it appropriate to borrow the guidelines/criteria, provided for grant of bail in the provision of S.497 Cr.P.C. however, the principle of law has been since long developed by the superior courts that the powers of the Appeal Court in granting bail at post conviction stage, shall be guided by the criteria/principle provided in S.497 Cr.P.C. while in some cases it has been further provided that the Court of appeal or a High Court shall not conclusively decide the guilt or innocence of the accused, entering upon the reappraisal of evidence during pendency of appeal against the conviction and sentence.
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