2007 PLP 184 (SCMR)

SAIYED SAEED ASHHAD, J.

This petition for leave to appeal has been filed to assail the order of Lahore High Court, dated 16-6-2006 in Criminal Miscellaneous Application No.1 of 2006 in Criminal Appeal No. 337 of 2006 whereby respondent Bashir Ahmed convicted by the trial Court under section 302(b) read with section 34, P.P.C. and sentence of imprisonment for life besides compensation has been released on bail by suspending the operation of sentence awarded to him.

2. We have heard Mr. Hasnat Ahmed Khan, Advocate Supreme Court for the petitioner. Mr. M. Ehsan Bhoon, Advocate Supreme Court for respondent No.1 and Mr. Muhammad Akbar Tarar, Additional Advocate General, Punjab for the State.

3. Mr. Hasnat Ahmed Khan, Advocate Supreme Court assailed the order of Lahore High Court on the ground that learned Single Judge in suspending the operation of sentence of imprisonment for life has exceeded the discretion exercisable by it for suspending sentence in a case where the convict has murdered. He further submitted that the power given to the Appellate Court under section 426, Cr.P.C. is to be very sparingly exercised especially in cases where the convict has been sentenced to imprisonment for life.

4. Mr. M. Ehsan Bhoon, supported the order of the High Court and submitted that the same does not suffer from any irregularity and is strictly in accordance with the provisions of section 426, Cr.P.C. While supporting the order of the High Court learned counsel had raised the following contentions for consideration by this Court. (i) that during investigation of the case the Investigating Officer found respondent Bashir Ahmed not involved in the commission of the offence; (ii) that the respondent though said to be armed with a Klashinkov but did not fire either at the deceased or his companions; (iii) the question whether the fire-arm injury to the cow was caused by respondent Bashir Ahmed is not beyond doubt as according to the prosecution evidence the same was said to have been caused by a Klashinkov burst fired by co-convict Muhammad Rafique; (iv) that the question whether the part played by respondent Bashir Ahmed during the occurrence would bring him within the scope of section 302, P.P.C. or he would merely be found to be guilty under section 429, P.P.C. required consideration; and (v) that the appeal is not likely to come up for hearing in near future.

5. Mr. Muhammad Akbar Tarar, learned Additional Advocate General adopted the arguments of the counsel for the petitioner and submitted that the High Court in suspending the sentence and ordering release of respondent/convict Bashir Ahmed had not exercised the jurisdiction in accordance with the provisions of section 426, Cr.P.C.

6. We have considered the arguments of learned counsel for the parties and have perused the material on record.

7. Respondent has been convicted to life imprisonment for his involvement in the offence of murder on the basis of sharing common intention with principal accused. The observation of the High Court that the case requires further inquiry for determination whether the offence committed by Bashir Ahmed would be covered by section 429, P.P.C. or it would also fall within the scope of section 302, P.P.C. at the bail stage, in our view amounts to giving undue benefit to respondent Bashir Ahmed which is likely to adversely affect the prosecution case during the proceedings of appeal before the High Court. It is a settled principle that in granting bail or suspending the sentence awarded to a convict the Court is not required to express opinion as to under what provision of law the convict would likely be found guilty or whether the case does not come within the scope of a particular section. Besides, from the evidence produced by the prosecution it stands established that respondent Bashir Ahmed duly armed with a Klashnikov had come to the scene of incident along with the principal accused and fired a burst from his Klashnikov at the deceased and the cow which conduct and action of respondent Bashir Ahmed was considered by the trial Court to establish that he shared common intention with principal accused for causing death of the deceased.

8. As regards the contention that the respondent Bashir Ahmed was not found guilty by the Investigating Officer during the course of investigation suffice it to observe that the same besides having no binding value was disbelieved by the trial Court.

9. No doubt that the Appellate Court has been given the power to suspend the sentence of convict but the same is to be exercised with due care and caution and satisfactory and cogent reason are required to be advanced for suspending the sentence especially in respect of sentence of life imprisonment. No such exceptional circumstances have been highlighted by the learned Judge of the High Court in his impugned order.

10. For the foregoing facts, reasons and discussion we are of the view that the impugned order cannot be sustained as it is not based on cogent and satisfactory grounds. Accordingly, this petition is converted into appeal and is allowed. The impugned order is set aside. The bail bond furnished by respondent Bashir Ahmed is suspended. He is to be remanded to jail custody for serving out the sentence. S.M.B./B-6/SC Appeal allowed.