2014 PLP 304 (SCMR)
MUHAMMAD SIDDIQUE — Petitioner Versus The STATE and another — Respondents
| Citation | 2014 PLP 304 (SCMR) |
| Forum / Court | Supreme Court of Pakistan |
| Bench Members | Asif Saeed Khan Khosa, Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ |
| Parties | MUHAMMAD SIDDIQUE — Petitioner Versus The STATE and another — Respondents |
| Primary Law | Criminal Procedure Code (V of 1898) |
Q1: What are the key laws and sections cited in 2014 PLP 304 (SCMR)?
This judgment primarily cites: Criminal Procedure Code (V of 1898) as referenced in Pakistani case law index.
Q2: Which judicial bench decided the case 2014 PLP 304 (SCMR)?
The case was heard and decided by the Supreme Court of Pakistan bench comprising: Asif Saeed Khan Khosa, Amir Hani Muslim and Ijaz Ahmed Chaudhry, JJ.
Q3: What is the official citation format for this judgment on Pakistan Law Portal?
Cite this legal precedent as: 2014 PLP 304 (SCMR) (MUHAMMAD SIDDIQUE — Petitioner Versus The STATE and another — Respondents). Read the full summary and cross-referenced laws free on Pakistan Law Portal.
Laws Cited
Representation
- Ch. Muhammad Riaz Ahmad, Advocate Supreme Court for Petitioner.
- Muhammad Ahsan Bhoon, Advocate Supreme Court and A.H. Masood, Advocate-on-Record for Respondent No.2.
- Date of hearing: 3rd January, 2013.
- ----Ss. 426 & 497---Penal Code (XLV of 1860), S. 302(b)---Qatl-e-amd---Application for suspension of sentence dismissed as withdrawn or dismissed for non-prosecution---Subsequent application for suspension of sentence filed before the same court---Fresh grounds---Scope---Accused and co-accused were convicted and sentenced by Trial Court under S. 302(b), P.P.C., against which they filed appeals before the High Court---Co-accused filed application for suspension of his sentence, which was allowed and he was enlarged on bail---Accused filed his first application for suspension of sentence on the ground that role ascribed to him was similar to that of co-accused, however said application was dismissed for non-prosecution---Accused filed second application for suspension of his sentence on the same ground of similarity of role and rule of consistency, but it was dismissed as withdrawn---Accused filed his third application for suspension of sentence which was allowed by the High Court on the rule of consistency since role ascribed to accused was similar to that of co-accused---Legality---Ground of similarity of role and rule of consistency was available to accused at the time of filing his first application for suspension of sentence---High Court while suspending sentence of accused had not exercised discretion in a proper and judicious manner and passed impugned order in violation of the law laid down in the case "The State through Advocate-General N.-W.F.P. v. Zubair and 4 others (PLD 1986 SC 173)", which provided that subsequent bail application to the same court shall lie only on a fresh ground which did not exist at the time when first application was made; that if a ground was available to accused at the time when first bail application was filed and was not taken or was not pressed, it could not be considered a fresh ground and made the basis of any subsequent bail application---Impugned order passed by High Court was set aside and bail granted to accused was cancelled.
- The State through Advocate-General N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173 ref.
- 2. Briefly the facts leading to the filing of the instant petition are that the petitioner got registered case F.I.R. No.733 of 2008 dated 19-10-2008 under sections 302, 148, 149, P.P.C. at Police Station Baseerpur, District Okara for murder of Muhammad Islam, Advocate. The petitioner being dissatisfied with the police investigation filed a private complaint against respondent No.2 and two others wherein the learned trial Court after conclusion of trial convicted respondent No.2 along with his co-accused under section 302(b), P.P.C. as tazir vide judgment dated 19-5-2011 and sentenced him to imprisonment for life with direction to pay Rs.100,000 as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default thereof to further undergo S.I. for six months with benefit under section 382-B, Cr.P.C. Aggrieved by the aforesaid judgment respondent No.2 along with his co-convicts challenged his conviction by filing Criminal Appeal No.1082 of 2011 in the Lahore High Court, Lahore wherein he moved an application (Criminal Miscellaneous No.3 of 2012) for suspension of his sentence which was allowed by the Lahore High Court, Lahore vide order dated 19-11-2012. Hence this Petition for cancellation of bail granted to Nazir Ahmad respondent No.2.
- 4. Learned counsel for respondent No.2 while opposing this petition contends that since the case of respondent No.2 was at par with that of Madad Ali co-convict who had been ordered to be enlarged on bail by suspending his sentence, therefore, the learned High Court has rightly exercised its discretion while suspending the sentence of respondent No.2 and has thus committed no illegality or material irregularity while doing so, as such, the petition in hand deserves to be dismissed.
- 6. The complainant in his private complaint ascribed respondent No.2 the role of causing two injuries on the person of the deceased Muhammad Islam on his abdominal area and Madad Ali co-convict made two successive fire shots with his .222 bore rifle which hit the deceased on his chest. Both the aforesaid accused having been found guilty by the learned trial Court were convicted under section 302(b), P.P.C. and sentenced to imprisonment for life. Madad Ali co-convict of respondent No.2 filed Criminal Miscellaneous No.1 of 2011 in Criminal Appeal No.1082 of 2011 for suspension of his sentence before the learned Lahore High Court, Lahore which stood allowed on 23-1-2012 whereby his sentence was suspended. Thereafter, respondent No.2 moved an application (Criminal Miscellaneous No.1 of 2012) for suspension of his sentence which stood dismissed for non-prosecution as is evident from the certificate given by the learned counsel for respondent No.2 at the bottom of Criminal Miscellaneous No.3 of 2012. Thereafter, respondent No.2 filed Criminal Miscellaneous No.2 of 2012 before the learned Lahore High Court, Lahore, which stood dismissed as withdrawn but on the same grounds the third application (Criminal Miscellaneous No.3 of 2012) was allowed by the learned Lahore High Court, Lahore by totally ignoring the principles for suspension of sentence and other material available on record by suspending the sentence of respondent No.2 through impugned order. The main ground taken by the learned Judge of the Lahore High Court for suspending the sentence of respondent No.2 was rule of consistency having similarity of roles ascribed to respondent No.2 as well as Madad Ali co-convict, as such, the impugned order has been passed in violation of the law laid down by this Court in the case of "The State through Advocate-General N.-W.F.P. v. Zubair and 4 others" (PLD 1986 Supreme Court 173) wherein it has been held as under:--
Headnotes / Summary
(On appeal from the order dated 19-11-2012 in Criminal Appeal No.1082 of 2011 (Criminal Miscellaneous No.3 of 2012) passed by the Lahore High Court, Lahore.)
Ss. 426 & 497
Penal Code (XLV of 1860), S. 302(b)
Application for suspension of sentence dismissed as withdrawn or dismissed for non-prosecution
Subsequent application for suspension of sentence filed before the same court
Scope
Accused and co-accused were convicted and sentenced by Trial Court under S. 302(b), P.P.C., against which they filed appeals before the High Court
Co-accused filed application for suspension of his sentence, which was allowed and he was enlarged on bail
Accused filed his first application for suspension of sentence on the ground that role ascribed to him was similar to that of co-accused, however said application was dismissed for non-prosecution
Accused filed second application for suspension of his sentence on the same ground of similarity of role and rule of consistency, but it was dismissed as withdrawn
Accused filed his third application for suspension of sentence which was allowed by the High Court on the rule of consistency since role ascribed to accused was similar to that of co-accused
Ground of similarity of role and rule of consistency was available to accused at the time of filing his first application for suspension of sentence
High Court while suspending sentence of accused had not exercised discretion in a proper and judicious manner and passed impugned order in violation of the law laid down in the case "The State through Advocate-General N.-W.F.P. v. Zubair and 4 others (PLD 1986 SC 173)", which provided that subsequent bail application to the same court shall lie only on a fresh ground which did not exist at the time when first application was made; that if a ground was available to accused at the time when first bail application was filed and was not taken or was not pressed, it could not be considered a fresh ground and made the basis of any subsequent bail application
Impugned order passed by High Court was set aside and bail granted to accused was cancelled. The State through Advocate-General N.-W.F.P. v. Zubair and 4 others PLD 1986 SC 173 ref. Mazhar Sher Awan, Additional P.-G. for the State.
Judgment & Decree
IJAZ AHMED CHAUDHRY, J.
Muhammad Siddique petitioner through the instant petition for leave to appeal filed under Article 185(3) of the Constitution of Islamic Republic of Pakistan 1973, seeks leave to appeal against the order dated 19-11-2012 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.3 of 2012 in Criminal Appeal No.1082 of 2011 whereby, while suspending sentence of Nazir Ahmad respondent No.2 he was ordered to be enlarged on bail.
2. Briefly the facts leading to the filing of the instant petition are that the petitioner got registered case F.I.R. No.733 of 2008 dated 19-10-2008 under sections 302, 148, 149, P.P.C. at Police Station Baseerpur, District Okara for murder of Muhammad Islam, Advocate. The petitioner being dissatisfied with the police investigation filed a private complaint against respondent No.2 and two others wherein the learned trial Court after conclusion of trial convicted respondent No.2 along with his co-accused under section 302(b), P.P.C. as tazir vide judgment dated 19-5-2011 and sentenced him to imprisonment for life with direction to pay Rs.100,000 as compensation under section 544-A, Cr.P.C. to the legal heirs of the deceased and in default thereof to further undergo S.I. for six months with benefit under section 382-B, Cr.P.C. Aggrieved by the aforesaid judgment respondent No.2 along with his co-convicts challenged his conviction by filing Criminal Appeal No.1082 of 2011 in the Lahore High Court, Lahore wherein he moved an application (Criminal Miscellaneous No.3 of 2012) for suspension of his sentence which was allowed by the Lahore High Court, Lahore vide order dated 19-11-2012. Hence this Petition for cancellation of bail granted to Nazir Ahmad respondent No.2.
3. Learned Counsel for the petitioner contends that after conviction respondent No.2 filed an application (Criminal Miscellaneous No.1 of 2012 for suspension of sentence in the Lahore High Court which was dismissed for non-prosecution on 14-4-2012 the second application (Criminal Miscellaneous No.2 of 2012) was dismissed as withdrawn on 4-11-2012 but within the next few months Criminal Miscellaneous No.3 of 2012 filed by the same convict respondent No.2 was allowed by the same Hon'ble Bench of High Court without there being any material change in the circumstances; that the case of respondent No.2 was totally different from the case of Madad Ali co-convict who had been granted bail upon suspension of his sentence because the injuries caused by the said co-convict were non-existent in the medical evidence whereas the injuries caused to the deceased by respondent No.2 were borne out from the medical evidence, as such, there was hardly any justification for suspension of sentence of respondent No.2 within a period of few months of refusal of the same relief by the same Hon'ble Bench by holding that the role ascribed to respondent No.2 is identical to that of his co-accused namely Madad Ali whose sentence had already been suspended vide order dated 23-1-2012 passed in Criminal Miscellaneous No.1 of 2012 in Criminal Appeal No.1082 of 2011 and that discretion exercised by the learned Judge in Chamber of the Lahore High Court while suspending sentence of respondent No.2 was not above board and, as such, the discretion has not properly been exercised by the learned Judge of the High Court and in such circumstances order dated 19-11-2012 passed by the Lahore High Court in Criminal Miscellaneous No.3 of 2012 in Criminal Appeal No.1082 of 2011 is liable to be set aside.
4. Learned counsel for respondent No.2 while opposing this petition contends that since the case of respondent No.2 was at par with that of Madad Ali co-convict who had been ordered to be enlarged on bail by suspending his sentence, therefore, the learned High Court has rightly exercised its discretion while suspending the sentence of respondent No.2 and has thus committed no illegality or material irregularity while doing so, as such, the petition in hand deserves to be dismissed.
5. We have heard argument of the learned counsel for the parties and also perused the available record.
6. The complainant in his private complaint ascribed respondent No.2 the role of causing two injuries on the person of the deceased Muhammad Islam on his abdominal area and Madad Ali co-convict made two successive fire shots with his .222 bore rifle which hit the deceased on his chest. Both the aforesaid accused having been found guilty by the learned trial Court were convicted under section 302(b), P.P.C. and sentenced to imprisonment for life. Madad Ali co-convict of respondent No.2 filed Criminal Miscellaneous No.1 of 2011 in Criminal Appeal No.1082 of 2011 for suspension of his sentence before the learned Lahore High Court, Lahore which stood allowed on 23-1-2012 whereby his sentence was suspended. Thereafter, respondent No.2 moved an application (Criminal Miscellaneous No.1 of 2012) for suspension of his sentence which stood dismissed for non-prosecution as is evident from the certificate given by the learned counsel for respondent No.2 at the bottom of Criminal Miscellaneous No.3 of 2012. Thereafter, respondent No.2 filed Criminal Miscellaneous No.2 of 2012 before the learned Lahore High Court, Lahore, which stood dismissed as withdrawn but on the same grounds the third application (Criminal Miscellaneous No.3 of 2012) was allowed by the learned Lahore High Court, Lahore by totally ignoring the principles for suspension of sentence and other material available on record by suspending the sentence of respondent No.2 through impugned order. The main ground taken by the learned Judge of the Lahore High Court for suspending the sentence of respondent No.2 was rule of consistency having similarity of roles ascribed to respondent No.2 as well as Madad Ali co-convict, as such, the impugned order has been passed in violation of the law laid down by this Court in the case of "The State through Advocate-General N.-W.F.P. v. Zubair and 4 others" (PLD 1986 Supreme Court 173) wherein it has been held as under:--
8. It might be useful to mention here that the second or the subsequent bail application to the same Court shall lie only on a fresh ground namely, a ground which did not exist at the time when the first application was made. If a ground was available to the accused at the time when the first bail application was filed and was not taken or was not pressed, it cannot be considered as a fresh ground and made the basis of any subsequent bail application. We may also point out, with respect to the learned Judge who dealt with the second bail application that the mere fact that the learned Judge who had rejected the first bail application of the respondents with the observation that as far as the remaining petitioners (the respondents herein) are concerned no case had been made out for their release on bail, does not mean that the application had not been disposed of on merits. It must be assumed that he had considered all the pleas or grounds raised by the applicant's counsel before him and that the same had not found favour with him." In such circumstances it is apparent on the face of record that the ground of similarity of role and rule of consistency was available to the petitioner at the time of filing first application for suspension of sentence but the learned Judge has totally ignored it. From the tenor of impugned order it appears that the learned Judge of the Lahore High Court while suspending the sentence of respondent No.2 has not exercised discretion in a proper and judicious manner rather has not at all adverted to the guidelines laid down in Zubair's case (supra).
7. In view of the above, we while converting the instant petition into an appeal allow the same, set aside the impugned order dated 19-11-2012 passed by the Lahore High Court, Lahore in Criminal Miscellaneous No.3 of 2012 in Criminal Appeal No.1082 of 2011 and cancel the bail granted to respondent No.2.
8. Before parting with this order we may observe that discretion exercised by the learned Judge while passing the impugned order in the instant case has appeared to us to be somewhat colourable because after dismissal of second application for suspension of sentence bearing the same ground the only difference in the respondent's third application for the same relief was a different learned counsel for that respondent. Office is directed to send a copy of this order to the learned Judge of the Lahore High Court, Lahore for his information. MWA/M-61/SC Bail cancelled.