2012 PLP 928 (YLR)

Criminal Miscellaneous No.1 of 2011. MAZHAR IQBAL SIDHU, J.

Ahmad Din alias Ahmed Yar son of Muhammad Abdullah has filed criminal appeal against the judgment dated 22-10-2011 passed by the learned Additional Sessions Judge, Nankana Sahib convicting him under section 337-A(i) P.P.C. and sentenced to undergo rigorous imprisonment for two years as Tazir. He was also directed to pay Daman to the tune of Rs.50,000 to injured Nazir and Nawaz dividable equally and shall be recoverable under section 337Y (2), P.P.C.

2. The appellant along with appeal moved the instant petition under section 426, Cr.P.C seeking suspension of sentence imposed against him. The appeal was admitted for regular hearing and notice was also issued in this petition.

3. Tersely the prosecution case is that Muhammad Iqbal alias Kala, Allah Ditta and Ahmad Din alias Ahmad Yar (petitioner) were tried for allegedly committing the murder of Azhar Hussain and for allegedly causing injuries to Nasir and Nawaz.

4. The petitioner and his co-accused were indicted under sections 148/149/ 337-A(i)(ii)/337-F(i)/ 337-L(2) and 302, P.P.C. and after the completion of the trial, the petitioner was convicted and sentenced as mentioned op.cit.

5. Learned counsel for the petitioner submits that the penal provision under which the petitioner has been convicted and sentenced is bailable by virtue of Schedule-II attached with the Criminal Procedure Code, 1898 and the petitioner has indefeasible right to be admitted to bail notwithstanding, he has been convicted and sentenced on the ground that he has challenged the conviction and sentence and the statute does not make any distinction that if an offence which is bailable before the conviction and sentence becomes non-bailable after the conviction and sentence. Learned counsel adds that II-Schedule mentioned in the Code ibid remains applicable before the conviction or after the conviction as such, therefore, the petitioner cannot be gainsaid from the relief prayed for.

6. Learned DPP has opposed the submissions that the petitioner has been condemned and now the presumption of innocence does not exist in this case as such in favour of the petitioner which he had attained before the handing down of impugned judgment. However, he remains fizzled out in making distinction so far as the Schedule-II of the Code ibid is concerned as to change of nature from bailable to non-bailable.

7. Heard. Record perused.

8. The petitioner along with others was tried for commission of murder and causing injuries as hereinbefore mentioned but during the trial the prosecution has failed to prove its case under all penal provisions with which the petitioner was indicted except section 337-A(i), P.P.C. The offence by virtue of Schedule-II of the Criminal Procedure Code is bailable. Therefore, he has indefeasible right by virtue of section 496, Cr.P.C to be enlarged on bail by suspending the quantum of sentence imposed upon him. In this respect reference has been made to the cases reported as Mian Muhammad Ali Qureshi and others v. The State (PLD 1963 SC 478) and Ghulam Mujtaba v. The State (1998 PCr.LJ 1379 Lahore) Reliance has also been placed upon the case reported as Shah Hussain v. The State (PLD 1995 Karachi 209) wherein Head Notes A & B are reproduced as follows:-- "

S. 426

Suspension of sentence

Accused after having filed an appeal against his conviction under a bailable offence is entitled to bail as a matter of right".

S. 426(1)

Penal Code (XLV of 1860), S.320

Suspension of sentence

Accused, a mini bus driver, in a case of a fatal accident had been convicted and sentenced under section 320, P.P.C., and his appeal against his conviction and sentence had been admitted

Offence being bailable accused after admission of his appeal was entitled to be released on bail as a matter of right

Sentence of accused was consequently suspended and he was released on bail accordingly."

9. For what has been discussed above, the instant petition is allowed, quantum of sentence imposed upon the petitioner is suspended and he is granted bail provided his furnishing bail bonds in the sum of Rs.50,000 (rupees fifty thousand only) with one surety in the like amount to the satisfaction of the Deputy Registrar (Judl.) of this Court. N.H.Q./A-236/L Sentence suspended.