1994 P Cr (PLP)

Ss. 426(1-A)(c) & 497

Penal Code (XLV of 1860), S.302

Suspension of sentence

Bail on the ground of statutory period under S. 426(1-A)(c), Cr.P.C. cannot be claimed as of right as under S.497, Cr.P.C. where under benefit of third proviso of statutory ground can only be denied if case against accused falls within the purview of fourth proviso to S.497, Cr.P.C. Sahibzada Farooq Ali and Altaf Ibrahim Qureshi for Petitioner, Sheikh Muhammad Rahim for the State. This application under section 426(1-A)(c), Cr.P.C. has been moved for suspension of sentence of life imprisonment awarded to the petitioner by the learned Additional Sessions Judge, Vehari vide judgment, dated 21-1-1992, on the statutory ground.

2. The learned counsel for the petitioner contended that the petitioner is in the jail since 1989 i.e. for nearly four years after his conviction and that despite expiry of a period of more than two years" from his conviction, his appeal against conviction and sentence before this Court is pending without disposal. He contends that delay in disposal of appeal being not attributable to him, he is entitled to the statutory right of suspension of sentence by virtue of section 426(1-A)(c), Cr.P.C.

3. The learned counsel while commenting upon the merits of the case contended that motive alleged by the prosecution for the occurrence was that Shafqat Hussain accused suspected illicit intimacy of Mst. Marriam, his wife with Talib Hussain deceased. Whereas the defence plea raised by the appellant at the trial was that on the day of occurrence, Talib Hussain deceased made an attempt to commit Zina-bil-Jabr with Mst. Marriam and the petitioner on the alarm of his wife under grave and sudden provocation loosing his self-control fired at the deceased. It has been argued that the learned trial Court without giving due weight to the evidence of Sana Ullah Khan P.W.9, the Investigating Officer of the case who deposed that the deceased was done to death due to "Ghairat" when he tried to outrage the modesty of wife of the petitioner, excluded the defence plea.

4. The learned counsel appearing on behalf of the State has opposed the bail on the ground that the defence plea having disbelieved by the trial Court, the case against the petitioner was proved beyond doubt.

5. Having examined the relevant portion of the judgment of the learned trial Court and giving due consideration to the arguments of the learned counsel, the correctness or otherwise of the defence version cannot be judged without detailed scrutiny of the evidence and the plea of grave and sudden provocation in view of the motive set up by the prosecution and the statement of P.W.9 shall require determination at the time of disposal of appeal. However, the appellant if ultimately is succeeded in appeal on the basis of his defence plea, and there being no repair to loss to him, it shall not be fair to withhold the statutory right of suspension of sentence mere on the ground that the petitioner was awarded life imprisonment under section 302, P.P.C. The provisions of section 426(1-A)(c), Cr.P.C. require release of a person who has been awarded punishment for life imprisonment or for a term exceeding seven years and his appeal has not been decided within the statutory period provided therein unless the Court directs otherwise. The bail on the ground of statutory period under section 426(1-A)(c), Cr.P.C. cannot be claimed as of right as under section 497, Cr.P.C. whereunder benefit of 3rd proviso to section 497, Cr.P.C. of statutory ground can only be denied if case against the accused falls within the purview of the 4th proviso of the said section, however, having regard to the facts of present case it shall not be fair and proper to refuse the statutory benefit under section 426(1-A)(c), Cr.P.C. to the petitioner. I finding merits in the contention raised by learned counsel for the petitioner, see no justification for withholding the benefit of law creating a right in favour of the petitioner for suspension of sentence on statutory ground. The sentence of the petitioner is suspended and he is directed to be released on bail subject to his furnishing bail bonds in the sum of Rs.50,000 with two sureties in the like amount to the satisfaction of in A.C./Duty Magistrate, Vehari. N.H.Q./S-458/L????????? Sentence suspended.