2013 PLP 1748 (YLR)

ABDUS SATTAR ASGHAR, J.

Haq Nawaz alias Fakhar Hayat petitioner through this petition under section 426(2-B) Cr.P.C. has sought for suspension of his sentences and grant of bail on the ground that in petitioner's Jail Petition No.363 of 2010 leave to appeal against his conviction has been granted by the Hon'ble Supreme Court whereas complainant's Criminal Petition No.384/L of 2010 for enhancement of sentence has been dismissed.

2. Succinctly facts leading to this petition are that the petitioner along with his co-accused in complaint case dated 12-9-2002 under sections 302/34 of the Pakistan Penal Code, 1860 along with case F.I.R. No.512 dated 1-8-2002 Police Station Haveli Lakha District Okara faced trial with regard to the murder of Muhammad Abbas. Vide judgment dated 8-7-2004 the petitioner was convicted by the learned Additional Sessions Judge, Depalpur District Okara under section 302(b), P.P.C. and awarded sentence of death with compensation under section 544-A, Cr.P.C. amounting to Rs.50000 to be paid to the legal heirs of Muhammad Abbas deceased and in default to undergo S.I. for six months. The petitioner preferred Criminal Appeal No.1180 of 2004 against the judgment dated 8-7-2004 passed by the learned Additional Sessions Judge, Depalpur. The appeal was dismissed by this Court vide judgment dated 6-4-2010, however the sentence of death was reduced to imprisonment for life. Benefit of section 382-B, Cr.P.C. was also given. The order to pay the amount of compensation of Rs.50,000 to the legal heirs of the deceased and the imprisonment in default was maintained. The petitioner assailed the above said judgment of this Court through Jail Petition No.363 of 2010 before the Honourable Supreme Court. Simultaneously complainant also filed Criminal Petition No.384-L of 2010 before the Hob'ble Apex Court seeking enhancement of sentence of the petitioner. Complainant's criminal petition has been dismissed vide order, dated 5-6-2012 whereas petitioner's Jail Petition No.363 of 2010 has been allowed and leave to appeal has been granted by the Hon'ble Apex Court.

3. It is argued by the learned counsel for the petitioner that since the grant of leave to appeal by the Hon'ble Apex Court his appeal is pending adjudication therefore this Court is empowered to suspend the sentences and grant bail to the petitioner in terms of section 426(2-B), Cr.P.C.

4. This petition is resisted by the learned D.P.G. for the State assisted by learned counsel for the complainant with the arguments that leave to appeal has been granted by the Hon'ble Supreme Court therefore for suspension of his sentence the petitioner should approach the Hon'ble Apex Court if so solicited.

5. We have given patient hearing to the learned counsel for the parties as well as the learned D.P.G. for the State and gone through the record.

6. Perusal of the record transpires that the Hon'ble Supreme Court has granted special leave to appeal to the petitioner with the following observations:-- "Jail Petition No.363 of 2010: We have observed that the occurrence in this case had taken place at about 1-00 a.m. during the fateful night and although the F.I.R. and the site-plan of the place of occurrence referred to availability of electric light at the spot yet no electric bulb had been secured by the Investigating Officer from the place of occurrence. In these circumstances the question regarding identity of the culprit was a question which required serious consideration but unfortunately this aspect had not received due consideration of the learned courts below. We have further observed that the same eye-witnesses produced by the prosecution had been disbelieved by the learned courts below to the extent of many co-accused of the petitioner who had been acquitted; the motive set up by the prosecution had been discarded; the alleged recovery of a firearm from the petitioner's possession had been ruled out of consideration; and, thus, the eye-witnesses produced by the prosecution who had a background of enmity with the accused party could not have been believed qua the petitioner without independent corroboration. In these circumstances the question as to whether the prosecution had succeeded in proving its case against the petitioner beyond reasonable doubt or not is a question which requires consideration by this Court. This petition is, therefore, allowed and leave to appeal is granted for the purpose." At the out-set it will be expedient to reproduce the provision of subsection (2-B) of section 426 of the Criminal Procedure Code, 1898, which reads as under:-- "(2-B) Where a High Court is satisfied that a convicted person has been granted special leave to appeal to the Supreme Court against any sentence which it has imposed or maintained, it may, if it so thinks fit order that pending the appeal the sentence or order appealed against be suspended, and, also if the said person is in confinement, that he be released on bail."

7. According to the report of the Superintendent Central Jail, Sahiwal No.3827 dated 13-2-2013 the petitioner has already served out the sentence along with remissions equal to 13 years 1 month and 17 days and the unexpired portion of sentence is 11 years 10 months and 13 days. Therefore keeping in view the fact that the petitioner has served out more than half of his sentence and leave to appeal against the sentence of the petitioner has been granted by the Hon'ble Apex Court, we are persuaded to allow this petition for suspension of sentence pending disposal of his appeal before the Hon'ble Apex Court and he is admitted to bail subject to his furnishing bail bonds in the sum of Rs.2,00,000 with two sureties each in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court.

8. Petitioner shall appear in person on every date of hearing in his case before the honourable Supreme Court of Pakistan. AG/H-6/L Bail granted.