P L D 2008 Lahore 306 (PLP)

HASNAT AHMAD KHAN, J.

At the very outset learned counsel does not press this petition qua Muhammad Ashraf-petitioner for the time being. Dismissed as not pressed.

2. Insofar as Jamshed Ali-petitioner is concerned, learned counsel for the petitioner contends that the only allegation against him is that of mere presence at the time of occurrence; that during the investigation no incriminating article was recovered from him and that the prosecution case against him needs reconsideration. In support of his contentions, learned counsel has placed reliance on the case of Mustafa alias Mohsin alias Musi v. the State 2002 PCr.R. 1235.

3. Conversely, learned Deputy Prosecutor General has opposed this application for suspension of sentence on the ground that the petitioner was duly named in the F.I.R.; that he actively participated in the occurrence; that Muhammad Mumtaz and Muhammad Akram co-accused are still proclaimed offenders and that at this stage deeper appreciation of evidence cannot be made, therefore, the petitioner is not entitled to the concession of bail through suspension of sentence.

4. After hearing the learned counsel for the parties I have gathered that the only allegation against the petitioner is that of mere presence at the time of occurrence. Barring the presence at the spot no overt act was attributed to him while lodging the F.I.R. Though according to the prosecution's version Jamshed Ali-petitioner was armed with a 12-bore gun but neither the same was used by him during the incident nor was it recovered during the investigation. I have further noticed that Asif Hayat (slain) was done to death at dead of night. According to the prosecution the deceased was bumped off at 3-00 a.m. while the F.I.R. was lodged at 7-30 a.m.

5. To put into a nutshell, the prosecution's case qua Jamshed Ali-petitioner would be requiring reconsideration at the time of final hearing of the main appeal. Moreover, keeping into consideration, the backlog of the cases pending before this Court, there is no chance of early hearing of the appeal filed by Jamshed Ali, petitioner-appellant.

6. Besides Jamshed Ali-petitioner is an old person of 71 years as is depicted from his statement recorded under section 342, Cr.P.C. Normally such an old-age by itself causes infirmity. Under the provisions as contained in section 497(1), Cr.P.C. a sick or infirm person may be released on bail even where there are reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life. It is now well-settled that powers conferred under section 426, Cr.P.C. are not controlled by the provisions of sections 496 and 497, Cr.P.C. but the principles enshrined therein can be taken into consideration while deciding applications under section 426, Cr.P.C. If any case-law is required on this subject reference can be made to the cases of Bashir Ahmad v. Zulfiqar and another PLD 1992 SC 463; Peer Mukaram-ul-Haq v. National. Accountability Bureau (NAB) through Chairman and others 2006 SCMR 1225 and Mumtaz Hussain v. The State 2006 YLR 2385.

7. For what has been stated above this application is accepted qua Jamshed Ali-petitioner whose sentence is suspended subject to his furnishing bail bonds in the sun of Rs.1,00,000 (rupees one hundred thousand) with two sureties in the like amount to the satisfaction of Deputy Registrar (Judl.) of this Court. The petitioner is directed to appear before this Court on each and every date of hearing of the main appeal. N.H.Q./J-23/L Sentence suspended.