1994 P Cr (PLP)

The petitioners have moved this petition under section 382-A, Cr.P.C. for suspending the operation of the sentences awarded to them, vide judgment, dated 13-2-1994 passed in Criminal Appeal No.516 of 1990, to enable them to file leave to appeal before the Supreme Court of Pakistan.

2. The brief facts relevant for the decision of this case are that the petitioners were convicted by the learned Additional Sessions Judge vide his judgment, dated 8-8-1990 and sentenced as under:-- (1) Muhammad Bashir Three years' R.I. under section 324, P.P.C. for causing injuries to Faiz Rasul and fine of Rs.1,000 or in default six months' R.I. He was ordered to pay Rs.2,000 as compensation to the injured or in default to undergo further six months' R.I. (2) Muhammad Hanif Five years' R.I. under section 325, P.P.C. for causing injuries to Sanaullah P.W. and fine of Rs.2,000 or in default six months' R.I. He was also ordered to pay Rs.5,000 as compensation to the injured or in default to undergo further imprisonment for six months. (3) Muhammad Rafia One year's R.I. under section 323, P.P.C. on two counts for causing injuries to Muhammad Insha and Faiz Rasul P.W. and also fine of Rs.1,000 under each count or in default six months' R.I. under each count. He was also ordered to pay Rs.2,000 as compensation to the injured P.Ws. or in default to undergo six months' imprisonment. His substantive sentences were ordered to run consecutively. (4) Muhammad Latif One year's R.I. under section 323, P.P.C., under each count for causing injuries to Mst. Naziran Bibi and Sanaullah P.Ws. The sentences were ordered to run consecutively. He was also ordered to pay Rs.2,000 as compensation to the injured P.Ws. failing which to undergo imprisonment for six months. The petitioners filed Criminal Appeal No.516 of 1990 against the aforesaid judgment, which was dismissed by me on merits. Anyhow, I reduce the sentence of Muhammad Bashir petitioner under section 324, P.P.C. from three years' R.I. to two years' R.I. and that of Muhammad Hanif petitioner under section 325, P.P.C. from five years' R.I. to three years' R.I. The sentences of Muhammad Rafiq and Muhammad Latif petitioners under section 323, P.P.C. were ordered to run concurrently, The sentences of fine of all the petitioners were maintained and so the compensation as ordered by the learned trial Court. The petitioners were given benefit of section 382-B, Cr.P.C. hence this petition.

3. The learned counsel for the petitioners has contended that the expression used in section 382-A, Cr.P.C. is that the sentence would be suspended by the learned trial Court provided the accused assures the learned trial Court that he intends to file an appeal if the sentence is less than one year. The learned counsel contended, as the petitioners were allowed benefit .of section 382-B, Cr.P.C. so their sentence qua Muhammad Rafique and Muhammad Latif petitioners are reduced to less than one year after deducting the sentences which they have already undergone after conviction by the learned Additional Sessions Judge, so they are entitled to this benefit. He further contended that the criteria for the grant of benefit of section 382-B, Cr.P.C. is quantum of sentence which an accused person has to undergo. In the end, he submitted, this section would be applicable even if the matter is brought to the notice of the Supreme Court of Pakistan in leave to appeal though the accused persons have no right of appeal to the Supreme Court under the Constitution.

4. The learned Law Officer appearing on behalf of the State vehemently contended that a person is entitled to get benefit of section 382-A, Cr.P.C. only in the sentence awarded to him is less than one year and any other interpretation as suggested by the learned counsel for the petitioners would create complications, and statute is to be read as a whole. "Every clause of a statute is to be construed with reference to the context and other clauses of the Act, so as, as far as possible, to make a consistent enactment of the whole statute, as held in Midland Bank, Ltd. v. Conway B.C. (1965) 1 W.L.R. 1165. He further submitted that the petitioners have no right of 'appeal before the Supreme Court. The matter can only be brought to the notice of their Lordships under Article 185 of the Constitution by way of leave to appeal and it is for the Supreme Court to see whether it is a fit case in which leave be granted or not and he has referred to the provisions of subsection (2-B) to section 426, Cr.P.C. which confer powers upon this Court to suspend the sentence of a person who has been granted special leave to appeal by the Supreme Court after his conviction by this Court.

5. I have heard the learned counsel for the parties at length and have carefully examined their respective submissions.

6. There are two formidable hurdles in the way of the petitioners; one is that the sentences awarded to them are one year and more; the other is that there is no right of appeal available to the petitioners before the Supreme Court against the judgment and conviction passed by this Court.

7. The determining factor for the application of the provisions of section 382-A, Cr.P.C. is what sentence has been awarded to the accused, and not the sentence the convict is supposed to undergo in jail in view of the provisions of 8 section 382-B, Cr.P.C. after he was allowed benefit in the aforesaid section, as in the present case, the sentence is more than one year, hence the provisions of section 382-A, Cr.P.C. would not be applicable and any other interpretation would not be permissible as it would be the violation of the principles of interpretation of statutes as laid down in the case mentioned above.

8. As the petitioners have no right of appeal against the judgment of this Court in this case, the matter can be brought to the notice of their Lordships under Article 185 of the Constitution of Islamic Republic of Pakistan by way of leave to appeal, hence section 382-A, Cr.P.C. is not applicable as it contemplates the right of appeal which is available to an accused under the law, and not a right of leave to appeal. There is difference between right of appeal and the leave to appeal before the Court. If a person has a right of appeal, then his appeal normally has to be decided by the criminal Court when it is presented, but in a case if a person has no right of appeal, the Court is not bound to grant him leave to appeal unless there are certain substantial points of law or facts involved in that case. It has been laid in Sm. Kalawati v. The State A I R 1952 Himachal Pradesh 67 that bail can be granted to a convicted person by the High Court under section 426(2-B), Cr.P.C. only where the Supreme Court has already granted him special leave to appeal to that Court and not before or merely upon the certificate of the High Court under Article 132(1) or Article 134(1)(c), Constitution of India. In addition to that, it has been held in the aforesaid case that the "Court must follow the law as it is and not law as it thinks it should be".

9. In view of the foregoing discussion, there is no merit in this petition which is dismissed accordingly. N.H.Q./M-1553/L Petition dismissed.