1994 P Cr (PLP)

S. 426

Penal Code (XLV of 1860), S.302

Suspension of sentence-- Previous application of accused for suspension of sentence had already been dismissed by High Court on merits and also on consideration of the ground of expiry of statutory period of two years

Delay in fixing the appeal for hearing by the office was inevitable

Case of accused was not proper to allow suspension of sentence and the same was refused in circumstances. 1994 S C M R 480 and P L D 1986 S C 173 ref. Muhammad Fayyaz Ahmad Khawaja for Petitioner Upon admission of a criminal appeal against conviction and sentence recorded by a lower Court under section 302, P.P.C., Mian Nazir Akhtar, J. dismissed the petition for suspension of sentence on 26-11-1991. Another lication Criminal Miscellaneous No.395/B of 1993 was then submitted by the e vict-appellants. This was dealt with by my brother Khan Riaz-ud-Din Ahmad, J. of this Court. Second petition for suspension of sentence like the earlier one was presented through Ch. Muhammad Iqbal, Advocate. In his order My brother Khan Riaz-ud-Din Ahmad, J. found that despite expiry of the sta utory period of two years, the merits of the case did not entitle the convicts for suspension of the sentence. Concluding paragraph of the judgment of my bro er reads, "I have considered the submissions made by the learned counsel for a parties and have perused the record. Though the statutory period of two year has already elapsed but keeping in view the fact that the petitioner; convicts remained fugitive from law and were declared proclaimed offenders and that they were allegedly armed with deadly weapons and had actively participated in the occurrence by firing shots on the deceased as well as on the P.W., they do not deserve the concession of bail. Accordingly, this application stands dismissed. However, the office is directed to fix the main appeal for an early date". This order was made by my brother on 5-10-1993. Meanwhile, the convicts engaged Muhammad Fayyaz Ahmad Khawaja, Advocate who filed a fresh petition for suspension of sentence. Criminal Miscellaneous No.513/B of 1994, on the ground of expiry of the statutory period as also on merits. This petition was listed before my brother Sh. Ijaz Nisar, J. on 28-7-1994 and a notice was issued to the other side. It was listed before me today. Earlier to it, another Writ Petition No.825/1994 filed by the same counsel was taken up as urgent matter. It related to the transfer of a village Patwari from Jhelum to the Tehsil Headquarter. Counsel argued the writ petition and asserted that the order of transfer was mala fide. Since the matter in the aforesaid writ petition pertained to the terms and conditions of service of a civil servant, I expressed my reluctance to interfere because of a clear bar contained in Article 212 of the Constitution of Islamic Republic of Pakistan, 1973 and a judgment of the Supreme Court in C.P. No.26 of 1992, decided on 8th of March, 1992. This had been my consistent view that transfer of a civil servant was not justiciable in extraordinary jurisdiction of this Court under Article 199 of the Constitution. Consequently; the writ petition was dismissed in limine on this score today. For reference copy of the order is annexed. Upon conclusion of hearing in the above writ petition, Criminal Miscellaneous No.513/B of 1994 was taken up for hearing. Counsel referred to the judgment of the Supreme Court in 1994 S C M R 480 to contend that upon expiry of the statutory period, the convicts had acquired a right to be released on bail. He also urged that principle in Zubair's case P L D 1986 SC 173 may attract itself to the petition for suspension of sentence filed under section 426, Cr.P.C. In course of hearing of the petition, I expressed my view that since earlier petition for suspension of sentence. Criminal Miscellaneous No.395/B of 1993 was dismissed on merits by my learned brother Khan Riaz-ud-Din Ahnlad, J., I could not sit in review on his decision for taking of a different view in the case on its merits and if the merits were to be re-examined, it was proper for the convicts to have appealed from his order. The counsel submitted that since the Criminal Appeal was not fixed for hearing at an early date, this circumstance gave rise to a right in their favour to re-file the petition for suspension of sentence. In my opinion, principle in Zubair's case may not strictly apply to the petition for suspension of sentence grounded on expiry of the statutory period. Therefore, in view of the earlier order of the Court dismissing the petition for suspension of sentence on merits, I was not inclined to suspend the sentence. Instead, I intended to propose an early hearing of the appeal after re-opening of the Court after summer vacations. When I conveyed this impression, the counsel was extremely infuriated and stated in Court that counsel in some criminal case in which, according to him, my relatives were poised on the other side, therefore, in his view, I was not entertaining him well and had decided a few cases, in which he was a counsel, against his clients. This unprovoked exuberance of expression from a counsel much disturbed, rather shocked me. I had no such impression in my mind and it was an effort of the counsel to unnerve the Court for an easy relief. Despite assurance of complete detachment, the counsel persisted in his utterances and in that frame of mind left the rostrum. I could see that he was extremely in a disturbed state of mind and was shown to have lost all sense of propriety regarding conduct of a counsel in Court. Counsel present in Court witnessed the incident. Therefore, it was being brought on record. Observance of patience was an essential requirement of the office of a Judge, more particularly in these days of falling standards all around. Muhammad Fayyaz Ahmad Khawaja, Advocate once held himself a judicial office of Additional District and Sessions Judge in the Province of Punjab, but could not retain it for long and soon reverted to practice of law which he had been practising before he joined the subordinate judiciary. He practised at Gujranwala and then shifted his place of business to Rawalpindi end is an Advocate of High Court. Both as a lawyer and a Judge he was acquainted with the decorum of the Court and norms of practice in law. It is regretful that he deviated from them and use of utterances, which were unbecoming of the high traditions of legal profession. These types of incidents were of often occurrence these days. One can only regret for them and hope for improvement of things around the judiciary. The Court lives on its inherent strength and can legitimately lay claim to a respect for it from all the quarters. Respect for the Court was sine qua non for sustaining its institution. Any erosion of it was destructive of the traditional institutional character of the Court. A practising lawyer was an officer of the Court and was an important limb in the administration of justice by the Court. The Court looks to him for assistance. He is expected to come up to the required mark. A relief oriented approach of a lawyer does not fit in with his noble calling. The Court shows grace and large heartedness on its part and as a measure of it this time also, action in contempt of Court is not taken against the counsel who may probably have himself realized that his conduct in Court was in firm grip of it. Therefore, the matter regarding his conduct in Court is left to his own conscience for a sound judgment on it; whether it conformed to the noble tradition of the legal profession of which he is a member or was it conducive to advance and promote the fair name of the judiciary. Reverting now to the petition for suspension of sentence, in view of clear observations of my learned brother Khan Riaz-ud-Din Ahmad, J. on its merits and also the ground of expiry of statutory period, I feel reluctant to take a different view of it. It is true that the Criminal Appeal may not have been fixed at an early date. It was due to paucity of the Judges. With addition of new strength to the High Court, we may be able to clear the backlog in the near future. Delay was there, but it was inevitable. Every one felt for it. Nonetheless, having regard to the nature of the case, as observed by my learned brother, it was not a proper case to allow suspension of sentence to the appellants. It may be observed at the end that in the mid-stream of arguments, counsel requested for adjournment for further preparation. I declined the adjournment and decided to proceed with the hearing of the petition. In this view, petition for suspension of sentence is dismissed. Criminal Appeal shall be fixed for hearing soon after re-opening of the Court after summer vacations. N.H.Q./G-235/L Petition dismissed.