2017 PLP 130 (YLR)

M. TABASSUM AFTAB ALVI, J.

The captioned petition has been filed by convict-petitioner for suspension of sentence awarded to him by Additional District Court of Criminal Jurisdiction, Rawalakot, vide its judgment dated 12.05.2016, and for grant of bail.

2. The facts precisely stated are that on written report of Zaffar Mahmood, complainant, a case under Sections 302, 341, 109 and 34, A.P.C. and 13/20/65, Arms Act, was registered against petitioner and co-accused -persons at Police Station, Thorar, on 20.03.2010. After usual investigation, a challan was submitted before concerned Court and as per conclusion of trial, petitioner was awarded sentence to 10 years simple imprisonment in offences under Sections 302(c) and 109, A.P.C. by the Additional District Court of Criminal Jurisdiction, Rawalakot, who was also extended benefit of section 382-B, Cr.P.C., vide judgment dated 12.05.2016. Feeling dissatisfied from the aforesaid judgment, the convict-petitioner has filed an appeal before this Court at Circuit Bench Rawalakot, on 06.06.2016, which is fixed for hearing on 18.07.2016. Meanwhile, convict-petitioner has moved the instant application for suspension of sentence before this Court at Headquarter on 13.06.2016, which is subject matter of the instant order.

3. Sardar Tahir Anwar Khan, the learned Counsel for convict-petitioner vehemently argued that petitioner is old enough, whose age is more than 70 years, and he is suffering from cardiac disease. The learned Counsel pointed out that allegation against convict-petitioner is only of abetment; therefore, by accepting petition, the sentence awarded to his client may be suspended till disposal of appeal and he may be released on bail as per old and medical grounds. The learned Counsel cited following case law in support of his arguments: i. Ghulam Muhammad v. The State [1996 PCr.LJ (Lahore) 1521]. ii. Ali Jan v. The State [1999 PCr.LJ (Karachi) 254].

4. Conversely, Zaffar Mahmood, complainant, himself appeared before the Court and submitted that on the behest of and abetment of convict-petitioner, the other co-accused committed offence of murder and except the petitioner, all other accused are absconders; therefore, instead disposing off the instant application, the original appeal may be decided on merits. The complainant further pointed out that petitioner's cardiac disease was diagnosed prior to the occurrence and no recent record is available in this regard. He also agitated that his brother was brutally murdered by accused-party, because from his dead body more than 90 bullets were recovered. The complainant finally prayed for dismissal of suspension petition.

5. I have given earnest consideration to the arguments of the learned counsel for convict-petitioner as well as complainant and perused the record with utmost care.

6. The convict -petitioner, in the instant case, was awarded sentence to 10 years simple imprisonment under Sections 302(c) and 109,A.P.C. by the Additional District Court of Criminal Jurisdiction, Rawalakot, vide its judgment dated 12.05.2016, against which an appeal is sub judice before this Court at Circuit Bench, Rawalakot. Meanwhile, petitioner has moved the instant petition for suspension of sentence and his release on bail.

7. As the matter in hand pertains to suspension of sentence awarded to the convict-petitioner by Additional District Court of Criminal Jurisdiction, Rawalakot; therefore, the same has to be ascertained within the relevant parameter. I am cognizant that there should be some strong and cogent reasons for ascertaining as to whether the conviction will sustain or not. No doubt, it is the entire discretion of the Court to suspend sentence, but the discretion has to be exercised judiciously by considering the relevant facts and circumstances of the case without entering into or commenting upon the merits of the case. Normally in a murder case, after conviction, initial presumption is against innocence of convict and the bail is not allowed to a convict by suspending his conviction and sentence until and unless exceptional circumstances are shown to be existed for doing so and powers available to this Court should not be exercised in a routine in murder cases. The aforesaid view finds support from a case reported as Abdul Khaliq v. Jahangir and another 1999 YLR 1999, wherein it was held as under:-- "The Shariat Court lost sight of the fact that after conviction in criminal jurisdiction initial presumption is against innocence of convict. Initial presumption of innocence in favour of accused is substantially dislodged upon his conviction by a competent Court. Person convicted of a non-bailable offence by a competent Court would not be entitled to be enlarged on bail normally by the appellate Court except in circumstances mentioned in Section 426, Cr.P.C. Our aforesaid view stands fortified by the cases reported as Muhammad Latif and 3 others v. The State [1984 PCr.LJ 1503] and Muhammad Murad v. The State (1986 PCr.LJ 64]." The same view was reiterated in case titled Ahmad Din and 2 others v. Muhammad Tazeem and another [2004 PCr.LJ (SC AJ&K) 956], wherein it was opined as under:- "We have given due consideration to the arguments raised at the Bar. We may state at the very outset normally in a murder case, after conviction, the bail is not allowed to a convict by suspending his conviction and sentence until and unless exceptional circumstances are shown to be existing for doing so. We have no quarrel with the discretionary powers of the Shariat Court available to it under section 426, Cr.P.C. but such powers are subject to the conditions circumstances 2particularly in heinous crimes like murder and not as a matter of routine."

8. It is important to observe here that the sentence awarded by a Court should not be taken lightly or suspended in a routine rather it is fundamental duty of the Court not to suspend the same and for the purpose some very strong grounds are required. The aforesaid view finds support from a case reported as Ch. Muhammad Riasat and another v. Muhammad Asghar and another (2010 SCR 1). "Some very strong grounds are required for the suspension of sentence. There must be strong and cogent reasoning, through which it can be ascertained that the conviction will not sustain. No doubt that it is the entire discretion of the Court, but the discretion has to be exercised judiciously by considering the relevant facts without entering into or commenting upon the merit of the case. When the contention raised requires consideration of merits, the appellate Court would refrain from entertaining such contention. This view finds support from a case reported as Bashir Ahmad v. Zulfiqar and another [PLD 1992 SC 463]. In the instant case the respondent, Muhammad Asghar, was convicted by the trial Court and not extraordinary circumstances have been shown by the Shariat Court while allowing concession of bail to him. The learned counsel for respondent No. 1 also could not point out such extraordinary circumstances on the basis of which it could be said that he was entitled for suspension of sentence. It is pertinent to note that the sentence awarded by a court should not be taken lightly or suspended in a routine. There must be some cogent and solid reasons for suspension of sentence. It would not be out of place to mention here that it came to our notice that the lower Courts are suspending the sentences and allowing the concession of bail to the convict persons just in a routine, while it is the fundamental duty of the Court not to suspend the sentence just in a routine. The lower Court should suspend the sentence only after considering whether the convict has a prima facie case and the conviction is likely to be set aside in appeal."

9. Adverting to the argument of the learned Counsel for convict-petitioner that petitioner is old enough, whose age is more than 70 years, and he is suffering from cardiac disease; therefore, ought to be released on bail by suspending the sentence. I am cognizant that on opinion of a Medical Officer that further detention of a convict in jail may result in his demise, the sentence may be suspended by keeping in view the poor physique of a convict, however, in the authorities cited by the learned Counsel for petitioner, sentences were suspended by superior Courts on the ground of old age. For instance, in case titled Ghulam Muhammad v. The State [1996 PCr.LJ (Lahore) 1521], the age of accused was 91 years, whereas in the other case titled Ali Jan v. The State [1999 PCr.LJ (Karachi) 254), the age of accused, as per his N.I.C., was 75 years, the occurrence was of dark night, the complainant compromised and forgotten the differences. However, in the instant case, it would be worthwhile to observe here that nothing has been brought on record to show that age of petitioner is more than 70 years. He did not even bother to attach his Identity Card with the petition, rather a facsimile of Patients History Sheet dated 22.03.2010, appended with the petition, indicates age of petitioner 61 years. Another photocopy of Patients History Sheet dated 31.12.2013, issued by Rawal General and Dental Hospital Lehtrar Road, Khanna Dak, Islamabad, appended with the petition, shows age of petitioner as 50 years and 09 months, indicating him as feeling chest pain. In such state of affairs, no any plausible proof regarding recent cardiac disease suffering of petitioner has been brought on record. Therefore, the submission made by the learned counsel for petitioner to suspend the impugned judgment dated 12.05.2016, on the grounds of ailment and old age of petitioner, is devoid of any force, which is turned down.

10. The nub of above discussion is that finding no substance in the instant petition, the same stands dismissed. HBT/10/Sh.C.(AJ&K) Petition dismissed.