2012 PLP 2554 (YLR)

Criminal Miscellaneous No.1 of 2011. Through this petition, petitioner/ appellant Niamat Ali seeks suspension of his sentence, who has been convicted and sentenced by the learned trial Court as under:-- (i) Imprisonment for Life under section 302(b)/34, P.P.C. on two counts with a compensation of Rs.200,000 under section 540-A, Cr.P.C. to the legal heirs of each deceased and in default of payment of compensation to further undergo six months' S.I. on two counts. (ii) Ten Years' R.I. under section 324, P.P.C. with a fine of Rs.50,000 and in default of payment of fine to further undergo six months' S.I. (iii) Three Years' R.I. under section 337-F(iii) as 'Ta'zir' with Daman of Rs.20,000 to injured Haq Nawaz. (iv) Three Years R.I. under sections 148/149, P.P.C. with a fine of Rs.5000 and in default of payment of fine to further undergo six months' S.I. All the sentences have been ordered to run concurrently and benefit of section 382-B, Cr.P.C. has been given to the petitioner.

2. Learned counsel for the petitioner, in support of this petition, contends that there is no allegation against the petitioner of causing any injury to any of the deceased; that the only allegation against the petitioner is that he has caused injury on the person of Haq Nawaz, injured P.W., with carbine; that the injury attributed to the petitioner has already been declared by the doctor falling under section 337-F(iii), P.P.C. Further contends that the petitioner was allowed bail by this Court on the basis of his old age, sickness and his role and he remained on bail till decision of the case; that the petitioner remained present before the court during the whole trial; that the petitioner has been convicted under section 302(b) read with section 34, P.P.C. whereas there is no such evidence which could attract the provisions of section 34, P.P.C. qua the petitioner and this fact even otherwise shall finally be determined at the time of hearing the main appeal which is not in sight in the near future.

3. On the other hand, learned Deputy District Public Prosecutor assisted by learned counsel for the complainant opposes this petition by contending that bail granting order during the trial has no significance after regular trial of the petitioner and his conviction in this case; that the petitioner has fully participated in this occurrence having a fire-arm and using the same; that in his statement under section 342, Cr.P.C. the petitioner has admitted his presence at the place of occurrence, therefore, the provisions of section 34, P.P.C. are fully attracted; that the petitioner waylaid the complainant party and being elder is responsible for commanding 'lalkara' culminating into this occurrence; that all the diseases of the petitioner mentioned in the report of the Medical Officer are treatable in the jail hospital; that case against the petitioner has been proved beyond any shadow of doubt; that the petitioner has been convicted after a regular trial and he is not entitled for suspension of his sentence.

4. Heard. Record perused.

5. Learned Trial court while convicting the petitioner has observed as under:-- "Accused Niamat Ali son of Lal Din has admitted his presence at the place of occurrence. The prosecution has proved on the record that he waylaid the complainant party with the intention to commit Qatl-e-Amd and actively participated in the occurrence by firing at the complainant party with the intention to commit Qatl-e-Amd and causing injury to Haq Nawaz P.W.9 beyond any shadow of doubt." We have noticed that as per the prosecution case the fatal shots on the persons of both the deceased have been attributed to the co-convict Muhammad Zafar who has been sentenced to death by the learned trial Court and the allegation against the petitioner is that he waylaid the complainant party and caused injury to Haq Nawaz P.W.9 and further that he raised a commanding 'lalkara' at the time of occurrence. The question, whether the petitioner is vicariously liable for the act of his co-convict Muhammad Zafar needs serious consideration at the time of hearing of the main appeal. The petitioner remained on bail during the trial. Co-convict of the petitioner namely Muhammad Zafar has been sentenced to death and there is no likelihood of hearing of the appeal of the petitioner in near future. Moreover, the petitioner is of the age of more than 70 years and is a sick person, and vide order dated 25-10-2011, Medical Officer, Central Jail, Lahore was directed to submit a report regarding the ailment of the petitioner. Report has been received, wherein it is mentioned as under:-- "The above said prisoner is admitted in Jail Hospital, he is suffering from Bronchial Asthma. Proper treatment is being provided to him. He was also examined by eye Surgeon and Surgeon from Services Hospital Lahore, their opinion is as under:-- Opinion of Eye Surgeon: Eye Surgeon from Services Hospital Lahore examined him, Patient is suffering from RT Cataract, LT Pseudophokia. The Specialist has referred the patient to Services Hospital Lahore for refraction and cataract extraction opinion. The such facility is not available in Jail Hospital. Opinion of Surgeon:-- Dr. Muhammad Adil from Services Hospital Lahore examined him and diagnosed Haemorrhoids at 3, 7 O' clock and referred the patient to Services Hospital Lahore for Proctoscopy." In the case of Maqsood v. Ali Muhammad and another (1971 SCMR 657), the Hon'ble Supreme Court of Pakistan has held as under:-- "

High Court, in appeal, ordering suspension of sentence and releasing appellant on bail on ground of illness--Held: discretion exercised by High Court proper

Principle laid down in proviso to S.497(1), Cr.P.C. that such a person could be released on bail could be following in granting bail under S.426." The above dictum has been following in the case of Haji Mir Aftab v. The State (1979 SCMR 320), while observing as under:-- "On the contrary, once a person is found to be sick and infirm then his case could be covered by the second proviso of section 497, Cr.P.C. and it would not be open to a court to quantify his sickness and infirmity. It is implicit in the finding recorded by the High Court that the petitioner was indeed a sick and infirm person but the learned Judges proceeded to distinguish his case from the convict in Maqsood's case, not only on fragile reasoning but on their own opinion as 'Medical Experts' which course, with respect, was not open to them. Furthermore, it was not disputed that the petitioner was at least 70 years of age and was suffering from duodenal uncler and eye trouble involving old trachoma. In these circumstances, the petitioner has indeed made out a case for the grant of bail within the ratio of Maqsood's case, moreso when throughout his trial he had remained on bail without there being any complaint against him that he has misused his bail."

6. In view of all above, without further commenting upon the merits of the case, we allow this petition and suspend the sentence of the petitioner till the final disposal of his criminal appeal, subject to his furnishing bail bonds in the sum of Rs.200,000 (Rupees two hundred thousand only) with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this court. However, the petitioner shall remain present before this Court on each and every date of hearing fixed in the main appeal. MWA/N-29/L Petition allowed.