1994 P Cr (PLP)

S. 426(1-A)(c)

Penal Code (XLV of 1860), S.302

Suspension of sentence

Appeal filed by accused against his conviction and sentence was not likely to be taken up in near future for disposal

Accused had been behind the bars for over a period exceeding the time limit provided in the Statute and the statutory stipulations were salutory for his current cause

Sentence of accused was consequently suspended and he was admitted to bail accordingly. Nazir Hussain v. Zia-ul-Haq and others 1983 S C M R 72; Saleh Muhammad v. The State and another 1983 S C M R 341; Muhammad Yaqoob and others v. The State 1991 S C M R 1459; Shahbaz v. The State 1992 S C M R 1903 and Muhammad Asghar and 2 others v. The State 1986 P Cr. L J 1389 ref. Sahibzada Farooq Ali for Appellant. Muhammad Qasim for the Complainant. Sh. Muhammad Aslam for the State. Release on bail of Khuda Bakhsh, having, on 11-7-1990, been convicted in a murder case under section 302, P.P.C. and sentenced to imprisonment for life and fine of Rs. 20,000, is sought on the statutory ground, Sahibzada Farooq Ali, Advocate who has filed the appeal and submitted the instant application under section 426, Cr.P.C. for suspension of sentence urging that scope of section 426, Cr.P.C. is wider than section 497, Cr.P.C.

2. Learned counsel for the complainant and the State Counsel have resisted the request and maintain that Khuda Bakhsh is the main accused, who had dealt with a dagger as many as five blows on the person of Muhammad Sharif deceased, on auspicious day of Eid-ul-Fitr, just after the Eid prayers, on a petty quarrel over pigeons, belonging to him, having been refused to be returned by the deceased. It is pointed out that the learned trial Court has also found Khuda Bakhsh to be the principal culprit, deserving infliction of a penalty provided by section 302, P.P.C. who has already been dealt with rather leniently, in having been awarded life imprisonment instead of death punishment.

3. Learned counsel for the appellant-applicant relies on Nazir Hussain v. Zia-ul-Haq and others 1983 S C M R 72, Saleh Muhammad v. The State and another 1983 S C M R 341, Muhammad Yaqoob and others v. The State 1991 S C M R 1459 and Shahbaz v. The State 1992 S C M R 1903 wherein a venture has been made to interpret the relevant provisions of the Criminal Procedure Code in more elaborate and clearer terms. The bar apparently created by what has been laid down in Muhammad Asghar and 2 others v. The State 1986 P Cr. L J 1389 a ruling cited in his support by the learned State Counsel, in which suspension of sentence was refused in respect of an accused alleged to have caused the fatal injury and held by the trial Court to be responsible for death of the deceased would not indeed stand in the way of the present petitioner in view of the pronouncements made by the Supreme Court of Pakistan, in more explicit terms, unless there is eminent justification spelt out on the strength of very cogent reasons, required to be recorded against such an entitlement the benefit available under the aforesaid provisions of law section 426(1-A) and section 497(1), third and fourth provisos must not be withheld, since it is the right of the accused, enjoyment of which has not been left to the discretion of the Court.

4. Keeping in view the heavy burden of work pending in the High Court Bench at Multan, it is not likely that Khuda Bakhsh's appeal against his conviction and sentence would be taken up in near future for disposal to accordance with its turn, and the learned counsel for the appellant-applicant has further pointed out that there are available no special reasons to deal with the matter, out of turn, at an early date. Even though, thus, as has been observed in Saleh Muhammad's case, expected delay in disposal of an appeal in future cannot be taken into account, the statutory period of two years in the past being already over, it appears it would be difficult to decline the privilege which the petitioner seeks on the above said ground.

5. Even otherwise, it is urged, the prosecution case has no firm legs to stand upon, the complainant's criminal revision (113 of 1990) for enhancement of sentence earned the convict, and the State appeal (139 of 1990) filed to have the acquittal of the three co-accused, Abdur Rehman, Bagh Ali and Sultan set aside, having been dismissed in limine by this Court on 22-10-1990 and 25-3-1991, respectively. By recording this view point of the learned counsel for the convict, I, however, must not be misunderstood, nor do I intend to say that I am persuaded to accept it, or have been impressed by the argument in rather an inopportune or premature manner before taking up the appeal itself for final consideration and disposal. This observation, therefore, will have no bearing on the merits of the appeal. Statutory stipulations being salutary for the current cause of the appellant, who has been behind the bars over a period exceeding the time limit C provided, I would admit him to bail in the sum of Rs.50,000 with one surety in the like amount, to the satisfaction of the A. C., Duty Magistrate, Vehari. N.H.Q./K-154/L Sentence suspended.