P L D 1997 Lahore 172 (PLP)

The petitioner was convicted by a learned Magistrate Section 30, Jaranwala, District Faisalabad vide judgment dated 29-10-1996 in a case registered vide F.I.R. No.215 of 1990 dated 10-4-1990 under section 307/34, P.P.C. registered at Police Station Jaranwala. He was awarded 2 1/2 years' R.I. with a fine of Rs.10,000 as compensation under section 544-A, Cr.P.C. with a direction that it should be given to the injured P.W. and the benefit of section 382-B, Cr.P.C. was also given. Against his conviction, the petitioner filed an appeal in the Sessions Court and prayed for suspension of his sentence under section 426, Cr.P.C. The learned Additional Sessions Judge, Faisalabad vide his order dated 4-11-1996 declined to suspend his sentence; hence this petition.

2. This petition has been filed under section 426(2), Cr.P.C. on the ground that this Court has the power to suspend the sentence even in a case which is not before this Court in appeal and the appeal is pending in the lower Court.

3. Learned counsel for the State assisted by the police officer has opposed this petition and submitted that as the appeal of the petitioner is pending before the learned Additional Sessions Judge who has refused to suspend his sentence, this Court would not exercise its powers under subsection (2) to section 426, Cr.P.C. in view of the amendment introduced in subsection (1-A) of section 426, Cr.P.C. vide Law Reforms Ordinance, 1972 which prescribes the time limit for the suspension of the sentence, if his appeal is not decided within six months.

4. I have heard learned counsel for the parties and have critically examined their respective submissions. Before embarking upon the discussion, it would be advantageous to reproduce subsection (2) to section 426, Cr.P.C.:

"(2) The power conferred by this section on an Appellate Court may be exercised also by the High Court in the case of any appeal by a convicted person to a Court subordinate thereto. "

5. A perusal of the above section, no doubt, gives powers to this Court to suspend the sentence in a case in which appeal is pending before the lower Appellate Court in suitable cases where there is unconscionable delay in the decision of the appeal, but in view of the amendment mentioned above, this provision has become redundant as the petitioner has acquired a right for the suspension of his sentence, pending decision of the appeal, if his appeal is not decided within the stipulated time, so the petitioner cannot invoke the jurisdiction of this Court under section 426, subsection (2), Cr.P.C. in view of the amendment mentioned above.

6. In the present case, the petitioner was convicted on 29-10-1996 whereas the lower Appellate Court declined to suspend his sentence on 4-11-1996, the case is, therefore, not covered by subsection (1-A) to section 426, Cr.P.C. If the appeal of the petitioner is not decided within the stipulated period, then, of course, tire petitioner would acquire right of suspension of his sentence. In view B of the amendment in law, the petitioner is not remedyless, he can refile his bail application on the ground of statutory delay in the decision of his appeal. This petition being misconceived and not competent in view of the amendment, referred above, is dismissed accordingly. N.H.Q./A-107/L . Petition dismissed.