1998 PLP 423 (SCMR)

SAIDUZZAMAN SIDDIQUI, J.

The above petition for leave to appeal is filed by the petitioner to challenge the order of Lahore High Court, Rawalpindi Bench, dated 14-7-1996 whereby a learned Judge in Chambers declined to suspend the sentence of the petitioner under section 426 Cr.P.C.. The petitioner was convicted under section 302(b), P.P.C., and sentenced to life imprisonment plus fine of Rs.50,000 to be paid as compensation to the legal heirs of the deceased or in default to undergo simple imprisonment for six months, by the trial Court.

2. The application was filed by the petitioner for suspension of his sentence under section 426 Cr.P.C. on the ground of statutory delay of two years in the disposal of the appeal against his conviction and sentence. The admitted position in the case is that the petitioner was convicted for the offence under section 302 P.P.C. by the trial Court on 28-2-1994. The petitioner applied for suspension of his sentence or in the alternative for hearing of appeal at an early date which was granted by the Court on 22-4-1996 and the case was directed to be listed for hearing in the month of May, 1996. It appears that for some reasons, the case could not be fixed during the month of May 1996. However, when the petitioner again applied for suspension of sentence, and the application came up for hearing before the Court 14-7-1996 the learned Judge instead of granting the application asked the learned counsel to proceed with the main appeal on any date within that week or on any other date convenient to the learned counsel. The learned counsel for the petitioner, however, declined to accept the offer of the Court on the ground that he will be away from Pakistan during summer vacation. The learned counsel for the caveator who opposes the grant of leave in the petition, contends that after summer vacations the main appeal was fixed in Court for regular hearing on 8-11-1996 but on account of absence of the learned counsel for the petitioner the appeal could not proceed.

3. The learned counsel for the petitioner contends that on account of statutory delay, the petitioner was entitled to be released on bail notwithstanding the fact that the Court was willing to proceed with the main appeal and dispose of the same on merits. We are unable to accept the contention of the learned counsel for the petitioner. In the case of Liaqat v. State (1995 SCMR 1819) the power of the Court to suspend a sentence under section 426 Cr.P.C. was considered at length by this Court and it was observed that where the Court I instead of deciding the application for suspension of sentence is willing to proceed with the main appeal, it would be a valid ground for not granting the application under section 426 Cr.P.C. In the case before us, not only the learned Judge was willing to dispose of the appeal on 14-7-1996, when the application for suspension of sentence came up for hearing, but it also offered the learned counsel that it could be heard within a week on a date of the choice of the petitioner 's counsel but the learned counsel declined to avail of this offer of the Court. It is also not denied before us that this appeal had come up for hearing before the Court in November 1996 but it could not be heard as the learned counsel for the petitioner was not present. In these circumstances, the learned counsel cannot be heard in support of this grievance that his application for suspension of sentence has been wrongly dismissed by the Court. We, accordingly, see no reason to interfere with the order passed by the learned Judge in Chambers. However, keeping in view the fact that more than two years have passed since the petitioner was convicted in the case, we direct that the appeal of the petitioner be disposed of within one month from today. A copy of this order be sent to the High Court. The petition stands dismissed, accordingly. H.B.T./H-9/S Petition dismissed.