2013 PLP 1589 (YLR)

MUHAMMAD JEHANGIR ARSHAD, J.

Through this Criminal Miscellaneous Application No.7/L, of 2013, the appellant/petitioner Muhammad Yousaf alias Yousaf Masih son of Javed Masih seeks suspension of his sentence on statutory ground passed by Mr. Khalid Arshad, Additional Sessions Judge, Sialkot on 31-1-2006 in a case arising out of F.I.R. No.513/2004, dated 14-10-2004 under section 10 of the Offence of Zina (Enforcement of Hudood) Ordinance VII of 1979, Police Station, Muradpur, District Sialkot whereby the appellant, petitioner was sentenced to imprisonment for twenty years' R.I. under section 10(3) of the Offence of. Zina (Enforcement of Hudood) Ordinance VII of 1979. However, the benefit of section 382-B Cr.P.C. was extended to the convicted accused. In support of this criminal miscellaneous petition, the learned counsel for the appellant/petitioner submits that the occurrence took place on 11-10-2004 whereas F.I.R. was lodged on 14-10-2004 and the appellant/petitioner was arrested on 27-10-2005, the impugned judgment was passed on 31-1-2006 and the present appeal was filed on 31-3-2006 which has not been decided within a period of two years of the appellant's conviction, therefore, appellant/ petitioner was entitled to suspension of his conviction and sentence and his release on bail in terms of section 426(1A)(c) Code of Criminal Procedure. Learned counsel for the appellant/petitioner further argued that even otherwise, per report submitted by Superintendent, Central Jail, Lahore dated 13-8-2012 the petitioner's out of twenty years' R.I. had already served out more than a period of thirteen years after including remissions till date of report, which in itself a sufficient ground for the suspension of petitioner's sentence. On the other hand, this criminal miscellaneous petition was opposed by the learned DPP Punjab for State who has argued that as the appellant/petitioner was a hardened and desperate criminal, therefore, was not entitled to suspension of his conviction and sentence, either on statutory grounds or on the ground of having served out more than half of the total sentence. On the last date of hearing i.e. 11-2-2013, Mr. A.D. Kaholi, Advocate was present on behalf of the complainant and had also accepted Notice of this criminal miscellaneous application on behalf of the complainant and the case was adjourned for today at his request in order to prepare the brief. Today, Mr. A. D. Kaholi, learned counsel for the complainant is absent and Mr. Khalid Masood Sindhu, Advocate has appeared and made a request for adjournment on the ground that Mr. A. D. Kaholi, learned counsel for the complainant was not available, therefore, the matter be adjourned. However, the request for adjournment made on behalf of the learned counsel for the complainant was not granted and the matter was heard in the presence of learned DPP Punjab for State. After hearing the learned counsel for the appellant/petitioner as well as learned DPP Punjab for State, we feel that the learned counsel for the appellant/ petitioner has made out a case for suspension of sentence of the appellant on the statutory grounds in terms of section 426(1A)(c) Code of Criminal Procedure which is reproduced as under:-- "(1A) An Appellate Court shall, except where it is of the opinion that the delay in the decision of appeal has been occasioned by an act or omission of the appellant or any other person acting on his behalf order a convicted person to be released on bail who has been sentenced. (a) (b) (c) To imprisonment for life or imprisonment exceeding seven years and whose appeal has not been decided within a period of two years of his conviction: Provided that the provisions of the foregoing paragraphs shall not apply to a previously convicted offender for an offence punishable with death or Imprisonment for life or to a person who, in the opinion of the Appellate Court, is a hardened, desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life". The perusal of the record indicates that this appeal was filed on 31-3-2006 but could not be decided within two years of the conviction of the appellant/petitioner. Further, the learned DPP Punjab for State has not been able to satisfy us that the appellant was either a hardened, desperate or dangerous criminal for the purpose of rejection of this criminal miscellaneous application on the statutory grounds. Similarly, learned DPP Punjab for State has also not placed on record any prove to show that the appellant/applicant was a previous convict. In the case of Liaqat and another v. The State 1995 SCMR 1819, it was held that:-- "The effect of insertion of submission (1-A) after subsec-tion (1) of section 426, Cr.P.C. in the Code of Criminal Procedure in our view, is that the appellant/convict has been conferred a right to ask for bail pending his appeal, if the Court is unable to dispose of his case within the periods specified in sub-clauses (a) to (c) of section 426(1-A), Cr.P.C. This right of the convict/appellant is independent of his right to seek suspension of his sentence by the Appellate Court on merits under section 426(1), Cr.P.C. The right conferred on the appellant/convict under section 426(1-A), Cr.P.C. therefore, can be exercised by him, notwithstanding the fact that the Appellate Court, in exercise of its discretion had earlier declined his prayer for suspension of his sentence on merits under section 426 (1-A), Cr.P.C. As a necessary corollary, therefore, it follows that the Appellate Court cannot decline to suspend the sentence of an appellant under section 426(1-4), Cr.P.C. on the ground that the appellant has no case on merits or that he would not be entitled to bail on merits or that he has been declined bail earlier on merits. The reasons on which the appellate Court may decline to suspend the sentence of the appellant while considering his application under subsection (I-A) of section 426, Cr.P.C., therefore, in our view, must be other than the merits of his case". In the light of the above noted facts and law declared by the apex Court in the above said judgment, we are, inclined to allow this criminal miscellaneous petition and suspend the sentence of the appellant/ petitioner Muhammad Yousaf alias Yousaf Masih son of Javed Masih and direct him to be enlarged on bail subject to his furnishing bail bonds in the sum of Rs.100,000 with one surety in the like amount to the satisfaction of the learned trial Court. The appellant however, is directed to appear before the Court on each date of hearing till the final decision of this appeal. HBT/7/FSC Sentence suspended.