2012 YLR 2308 (PLP)

RAJA SAEED AKRAM KHAN, J.

This is an application for suspension of the sentence passed against the petitioners by the Additional District Criminal Court, Sehnsa and upheld by the Shariat Court vide impugned order dated 4-5-2012.

2. The facts necessary for the disposal of the present application are that in the' above titled case an appeal has been filed before this Court by the petitioners which is under the process of completion. The petitioners have filed this application seeking suspension of their sentence. The petitioners were awarded sentence of two years' R. I. by the Additional District Criminal Court, Sehnsa under section 337-A(i), A.P.C., which has been upheld, on appeal, by the Shariat Court. The petitioners have filed this application seeking suspension of their sentence under section 426, Cr.P.C. on the ground that they have already served 14 months' sentence and were on bail at the time of the judgment of the Shariat Court dated 4-5-2012. The Shariat Court has upheld the sentence of two years awarded to thepetitioners vide impugned judgment .dated 4-5-2012 which has been assailed through an appeal before this Court.

3. Mr. Sadaqat Hussain Raja, the learned counsel for the petitioners, has argued that the judgment of the Shariat Court is against law and facts of the case. He argued that the sentence awarded to the petitioners is only two years and they have served substantial part of the sentence, i.e. A4 months. After the dismissal of the appeal by the Shariat Court the petitioners were taken into custody and sent behind the bars. He further argued that there is no likelihood of hearing of the appeal in near future, therefore, the sentence of the petitioners may be suspended and the petitioners be released on bail.

4. On the other hand, Sardar Karam Dad Khan, has entered his appearance on behalf of the complainant and fully supported the judgment of the Shariat Court and requested that instead of enlarging the petitioners on bail by suspending the sentence, the appeal may be fixed for final arguments. He relied upon the cases titled Allah Ditta Khan v. The State (PLD 2002 SC 845) and Riaz Hussain v. The State and another (2001 SCMR 1779).

5. I have heard the learned counsel for the parties and perused the judgment passed by the Shariat Court. The sentence awarded to the petitioners is only two years. It is admitted position that the petitioners have already served 14 months imprisonment which is substantial part of the sentence. There is no likelihood of fixing the appeal for hearing in the near future. I am of the view that till such time the appeal is fixed the petitioners will haveundergone whole of the sentence awarded to them, rendering their appeal to be meaningless. Similar proposition arose before the Supreme Court of Pakistan in a case titled Makhdoom Javed Hashmi v. The State (2007 SCMR 1844) in which it has been observed as under:-- "

11. The other arguments of Mr. Arshad Ali Chaudhry, Advocate Supreme Court/Advocate on-Record, for the State that, in case of suspension of sentence, the object of filing the appeal would be defeated, is equally devoid of any substance. A convict who has already undergone almost half of his sentence may seek suspension of sentence in the interest of justice keeping in view the facts and circumstances of a particular case such as Adnan A. Khawaja (supra). It is also mentioned here that if ultimately, the appeal of the petitioner is dismissed by the Appellate Court, the provisions of subsection (3) of section 426, Cr.P.C. would come in operation and the period of suspension of sentence shall stand excluded and he would have to undergo the sentence awarded to him by the Court." This Court in a recent case titled Sajid Rashid v. The State and two others (Criminal Miscellaneous No.4 of 2012) while suspending sentence the accused was allowed to be feleas`ed on bail.

6. The arguments of the learned counsel for the complainant that instead of enlarging the accused-petitioners on bail while suspending the sentence has no force because merely fixing the anneal instead of disposing of an application for suspension sentence had not been found to be a valid ground to refuse bail. Reliance can be placed on a case titled Ghulam Abbas and others v. State 1997 MLD 3222 in which it has been held as under: "The right of suspension of sentence on statutory ground is not a right -which becomes automatically available to a convict if the appeal is not decided within a period stipulated in section 426 Cr.P.C. Grant or refusal of suspension of sentence is a discretion of the Court but the said discretion has to be exercised judicially and the afore-referred provision mandates that the Court may refuse to suspend the sentence for reasons recorded. In the instant case, however, no reason has been furnished either by the State or by the learned counsel for the complainant to refuse the relief sought. Merely fixing the appeal instead of disposing of an application for suspension of sentence has not been found to be a valid ground to refuse bail ."

7. In the light of what has been stated above, I am inclined to accept this petition, therefore, while suspending the operation of the judgment it is directed that the petitioners will be released on bail subject to furnishing bail bond of Rs.50,000 along with one surety each in the like amount to the satisfaction of any Magistrate First Class Kotli. HBT/66/SC(AJ&K) Application allowed.