1991 PLP 1167 (MLD)

SARDAR MUHAMMAD DOGAR, J.

The petitioner, who alongwith her husband and nine others, was tried by Special Court constituted under the Suppression of Terrorist Activities (Special Courts) Act, 1975, was convicted vide judgment, dated 22-11-1990 and sentenced to undergo R.I. for seven years, has moved this petition for suspension of sentence under section 426, Cr.p.C. The prosecution case at the trial was that the accused had abducted Sh. Aftab Ahmad in order to exhort ransom and had released him only after the receipt of Rs.54 lacs as ransom.

2. Learned counsel for the petitioner contended that the petitioner has been unlawfully convicted and sentenced on insufficient evidence because of erroneous appreciation of evidence. He submitted that notwithstanding the judgment of the Supreme Court delivered in Criminal Appeal No.48 of 1985, dated 19-12-1990, this Court has the power to suspend sentences by way of exercise of power under section 561-A, Cr.P.C, as no clog has been put on the exercise of the power by this Court under section 561-A, Cr.P.C. Learned counsel argued that the concession petitioner being a woman is even otherwise entitled to the

3. Learned Advocate-General, on the other hand, has opposed the petition and argued that there is no flaw in the evidence on the basis of which the petitioner stands convicted. Learned Advocate-General contended that as the Power of this Court to suspend sentences in such like cases under section 426 Cr.P.C. stands excluded, relief of suspension of sentences cannot be allowed by resorting to extraordinary powers vested in this Court under section 561-Cr.P.C.

4. There is no cavil with the proposition that power of this Court stands excluded to suspend sentences under section 426, Cr.P.C. as pronounced b y the Supreme Court in the above-noted judgment. The only question which remains to be considered, is, whether this court can allow suspension of sentences by resorting to power under section 561-A Cr.P.C.

5. Powers under section 561-A, Cr.P.C. are supposed to be exercised rarely and in exceptional cases. Such power may be available to grant reliefs where there are no specific provisions but the same cannot be pressed into service if specific prohibition has been laid in any law for doing a particular act i.e. suspension of sentences by Appellate Forum passed by the Special Court set up under the Suppression of Terrorist Activities (Special Courts) Act, 1975.

6. The Honourable Judges of the Supreme Court in the above-noted judgment had taken note of suspension of sentences byway of exercise of powers under section 561-A, Cr.P.C. and observed as follows in paragraph 26 of the judgment:-- " .... Section 561-A cannot be invoked to bring about a result in respect of which there is an express prohibition or express provision provided in the Code or any other law. Inherent powers are regarded as auxillary or ancillary to make effective orders that can legally be passed and not those that legally cannot be passed."

7. Apart from the fact that the above observation is more of a directory nature than a mere guideline, we, ourselves, are of the view that extraordinary powers vested in the High Court under section 561-A, Cr.P.C. can be used only in exceptional and rare cases of hardship. They cannot be utilised to clearly defeat the purpose of a particular legislation.

8. If the Legislator had considered it more appropriate not to vest the power of suspension of sentence to the Appellate Forum against conviction and sentences passed by Special Courts constituted under the Suppression of Terrorist Activities. (Special Courts) Act, 1975, utilisation of powers under section 561-A, Cr.P.C. while sitting as appellate Court in such like cases for suspension of sentences will amount to circumvention and clearly defeating the intention and purposes of the law-giver.

9. We may note here that perusal of the Supreme Court judgment as a whole also gives l an impression that resorting to exercise power under section 561-A, Cr.P.C. for suspension of sentences by the High Court will not be a step in the right direction. In this regard, reference may be made to the following observations in the later part of paragraph 26 of the judgment:-- " .... However, in an exceptional case such as where there is complete want of jurisdiction or the evidence on the record does not make out any case for conviction, the High Court would still be barred from releasing the appellant on bail pending the disposal of his appeal, is a matter which I would keep open, to be examined at the proper time when such a case is before us."

10. Notwithstanding the fact that we are not convinced that it is a case of no evidence, as urged by the learned counsel for the petitioner, we are not disposing of the petition on merits and are dismissing the same for lack of jurisdiction. N.H.Q./N-431/L????????????????????????????????????????????????????????????????????????????????? Petition dismissed.