2011 SCMR 1107 (PLP)

NASIR-UL-MULK, J.

Mst. Parveen Akhtar widow of Shabir Ahmed has, through this petition for leave to appeal, assailed the order of the Lahore High Court dated 22-9-2008 whereby pending his appeal against his conviction and sentence of imprisonment for life under section 302(b), P.P.C., the sentence of the convict, Niaz Ali, was suspended and he was admitted to bail on the ground that he was an old man of 76 years and was suffering from inflammatory arthritis, in addition to the fact that he was attributed the role of Lalkara. Two other co-accused of Niaz Ali, Shahbaz Ahmed and Kamran, were also similarly convicted and sentenced for the murder of Shabir Ahmed.

2. Ch. Farooq Haider, Advocate Supreme Court appearing for the petitioner, pointed out that the High Court before admitting the respondent, Niaz Ali, to bail had already on 10-3-2008 issued notices to the convicts in the revision petition filed by the complainant for tile enhancement of the sentence of the convicts. He next referred to the statement of the complainant in the case, who had accused the respondent, Niaz Ali, for firing two effective shots at the deceased after the latter fell down. He next argued that there was nothing on the record to indicate the age of the respondent, Niaz Ali.

3. Mr. Basharatullah Khan, Advocate Supreme Court representing the respondent, Niaz Ali, submitted that as many as 14 persons were charged for a single murder and that the respondent. had been attributed in the F.I.R. the role of an instigator. The learned counsel referred to the report of the doctor incharge of the prison where Niaz Ali was incarcerated and submitted that the doctor had opined that the respondent was 76 years old and suffering from the inflammatory arthritis of both knee joints. He further made an attempt to argue in details the merits of the case.

4. Mian Asif Mumtaz, Deputy Prosecutor-General Punjab, representing the State, supported the petition and referring to the postmortem report pointed out that the deceased had received as many as five firearm entry wounds.

5. Undoubtedly the appellate Court is empowered under section 426, Cr.P.C. to suspend a sentence of imprisonment of a convict pending disposal his appeal. It is, however, only in exceptional cases that the sentence awarded on a capital charge is suspended as the recording of conviction by the trial Court itself indicates the existence of reasonable ground to believe that the convict is guilty of the crime. It is significant to note that the convict respondent, Niaz Ali, was not granted bail during his trial. Old age by itself is not generally considered to be a good ground for grant of bail nor would an ailment like arthritis. When the respondent's appeal against his conviction is pending in the High Court, it will not be proper to embark upon reappraisal of evidence, nor indeed could the High Court have undertaken such an exercise. For the present purpose, however, the High Court had on merits held the respondent entitled to bail on the ground that only Lalkara was attributed to him. However, as pointed out by the learned counsel for the petitioner, we have taken note of the statement of the complainant (P.W.8), who had attributed effective fire shots to the respondent on the person of the deceased. We have also noted that the impugned order was passed without notice to the complainant party. Additionally when notice to the convicts was issued by the High Court for enhancement of their sentence to death; it was inappropriate to suspend the sentence for imprisonment for life of the respondent.

6. In view of the above, we are constrained to hold that suspension of sentence of the convict respondent was not a proper exercise of discretion by the High Court. As urged by the learned counsel for the petitioner, perhaps notice for enhancement of sentence issued to the convicts was not brought to the notice of the Bench passing the impugned order. This petition is, therefore, converted into appeal and allowed, the impugned order is set aside and the bail granted to the convict respondent, Niaz Ali, is recalled. M.A.K./P-3/SC?????????????????????????????????????????????????????????????????????????????????? Appeal allowed.