2017 PLP 91 (YLRN)

ANWAR HUSSAIN, J.

Through this Application (M.A.No.3064/16), the Appellants seek suspension of sentence awarded to them through impugned Judgment dated 17.5.2012, whereby they were convicted and sentenced to suffer Rigorous Imprisonment for life for offence under Section 302(b) read with section 396, P.P.C. The benefit of section 382-B, Cr.P.C. was extended to the Appellants. Learned Counsel for the Appellants contended that admittedly the FIR is against unknown persons; the Appellants were implicated subsequently, there is no eye-witness of the alleged incident and the conviction has been awarded on the basis of evidence of Complainant and PWs, before whom allegedly the extra judicial confession was made by the Appellants and on the basis of medical evidence as well as recovery, which conviction is not sustainable in law; during the trial the Appellants were on bail and did not misuse the concession of the bail; the Appellants are not previous convicted; the Appeal admitted and pending since 2012, and the Appellants have tried their best and made several attempts for disposal of the same on merits; that the Appellants have undergone sentence for more than "05" years including remission period of one year as per Jail Roll dated 16.1.2015, and the hearing of Appeal is taking time for adjudication, therefore, the sentence awarded to the Appellants may be suspended till decision of the main Appeal and the Appellants may be enlarged on bail. In support of his contention, he relied on cases of Azmatullah reported in 2011 SCMR 1935, Mst. Latif Bibi, reported in 1994 SCMR 1727 and Bahadur, reported in 1997 SCMR 1183. The learned D.D.P.P. for the State has not been able to controvert the above submissions of the Appellants, but simply opposed the prayer of the Appellants on the ground that the Judgment is legal and proper in all respects. After demise of learned Counsel for Complainant, a direct notice was issued to the Complainant, who appeared in person on 17.11.2015 and sought time to engage another Counsel and time was granted with warning that if he failed to engage his Counsel on the next date, the matter shall proceed with the assistance of learned A.P.G, but thereafter despite of notices, neither the complainant appeared on the subsequent dates nor engaged other counsel. Perusal of the record shows that the Appellants were convicted for an offence under Section 302(b) read with section 396, P.P.C. The benefit of section 382-B, Cr.P.C., was extended to the Appellants. The record further shows that admittedly there is no eye-witness of the alleged offence/incident, but the Appellants were convicted on the basis of oral evidence of Complainant and P.Ws. before whom they have allegedly made extra judicial confession and on medical evidence as well as recovery. In the case of Azmatullah (Supra) the Honourable Supreme Court, suspended the sentence of life imprisonment in the murder case wherein the conviction of accused was based on extra judicial confession of principal accused, before the two prosecution witnesses. In the case of Mst. Latif Bibi (Supra), the Honourable Supreme Court suspended the sentence of life imprisonment of accused in murder case as the accused was not attributed any injury to the deceased. In the case of Bahadar (Supra) the Honourable Supreme Court suspended the life imprisonment of accused, on account of non-disposal of Appeal in a period of more than 3 years. In the cases of Qaisar Abbas (1996 PCr.LJ 1677) and Ghulam Shabbir (1997 PCr.LJ 139), the sentence of life imprisonment awarded on the basis of extra judicial confession was suspended with the observation that extra judicial confession is inadmissible and is a weak type of evidence. Moreover, this Appeal is pending since 2012, and the Appellants have undergone sentence for the period of "05" years including remission of one year, but still the Appeal has not been finally adjudicated upon; there is backlog of cases in this Court and the Appellants were on bail before the Trial Court. Since at bail stage, it could not be proper to go into the deeper appreciation of evidence, which is to be done while hearing the main Appeal. In this regard reference is made to the case of Shamshad Hussain v. Gulraz Akhtar, reported in PLD 2007 SC 564, wherein the Honourable Supreme Court has declined to interfere with the order of High Court for suspension of sentence of life imprisonment for offence under section 302, P.P.C. In view of the above circumstances, tentatively the Appellants have made out a case for suspension of their sentence, therefore, the sentence as awarded to the Appellants, in the impugned judgment, is hereby suspended and they be released on bail subject to furnishing solvent surety in the sum of Rs.500,000/- each with PR bond in the like amount to the satisfaction of the Additional Registrar of this Court. In view of the above, the listed applications are disposed of. JK/I-28/Sindh Sentence suspended.