Crl.M.No.2-2011 in Crl.A.104-2006
1
Criminal Appeal No.104-2006.
Shabbir Hussain etc.(Bilal)
01.12.2011.
The State
Crl.M.2-2011.
Ch:Saghir Ahmed, advocate for applicant.
Malik M.Jaffar Arian, Deputy Prosecutor General.
Sh:Jamshed Hayat, advocate for the complainant.
The applicant was tried by the learned Additional
Sessions Judge, Multan in a private complaint along with
his co-accused under Sections 324/302/109/148/149 PPC
who vide judgment dated 27.02.2006 convicted and
sentenced the applicant as follow:Under Section 302 (b) PPC.
(i)
Imprisonment for “Life”.
(ii)
Rs.2,00,000/- (rupees two lacs) as compensation to
the legal heirs of the deceased under Section 544A Cr.P.C and
in default of payment
of
compensation to further undergo six months R.I.
Benefit of Section 382-B Cr.P.C was also
extended in favour of the applicant.
2.
The learned counsel for the applicant seeks
suspension of sentence of the applicant on statutory
grounds by pressing into service Section 426(1A) (C)
PPC maintaining that the applicant is behind the bars
since his arrest and there is no possibility of the appeal
Crl.M.No.2-2011 in Crl.A.104-2006
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being heard and decided in the near future. The applicant
is a previous non-convict. The applicant after being
convicted and sentenced on 27.02.2006 filed a Criminal
Appeal No.104/2006 in the year 2006 which has not been
decided.
3.
The facts of the case which need to be stated very
briefly for the disposal of this petition are that after being
convicted the applicant challenged his conviction by
means of Criminal Appeal No.104/2006 which has not
been decided till date. The applicant applied for
suspension of sentence but the same was declined by this
court vide order dated 11.11.2010. The applicant again
applied for suspension of sentence and the same was also
declined by this court vide order dated 15.09.2011
mainly on the ground that the complainant has filed a
Criminal Revision No.145-2006 for enhancement of
sentence of the applicant from life imprisonment to death
wherein notice has been issued by this court to the
applicant.
4.
The learned counsel for the applicant submits that
this court has erred in turning down an earlier application
filed by the applicant for suspension of sentence on the
ground that notice has been issued in a Criminal Revision
for enhancement of sentence by this court, as this is
factually incorrect. No notice has ever been issued by this
court to the applicant in a Criminal Revision filed for
enhancement of sentence by the complainant. The
Crl.M.No.2-2011 in Crl.A.104-2006
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applicant was convicted on 27.02.2006, he filed a
Criminal Appeal No.104/2006 in the year 2006 which
has not been decided till date, hence the applicant is
entitled to be released on bail on statutory grounds.
5.
The learned Deputy Prosecutor General as well as
the learned counsel for the complainant have opposed the
petition and submitted that the applicant was “put to
notice” by this court in Criminal Revision No.145-2006
vide order dated 10.04.2006 hence there are no good
grounds for suspending the sentence of the applicant.
6.
After going through an order of this court dated
15.09.2011 it is clear that the sentence of the applicant
was not suspended mainly on the ground that notice for
enhancement of sentence has been served on the
applicant in Criminal Revision No.145-2006 while
placing reliance on Mst.Parveen Akhtar.VS.Niaz Ali &
another 2011 S.C.M.R 1107. The august Supreme Court
of Pakistan in the case referred to above had held that it
would be inappropriate to suspend the sentence of an
accused, earlier sentenced to imprisonment for life where
notice had been issued by the High Court for
enhancement of his sentence.
Without cavil to a
principle of law referred to above by the august Supreme
Court of Pakistan the controversy in hand which is to be
resolved is whether an order of this court passed in
Criminal Revision No.145-2006 “To be heard along
with Criminal Appeal No.104/2006” amounts to a
Crl.M.No.2-2011 in Crl.A.104-2006
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notice being issued to the applicant in terms of Section
439 Cr.P.C. A joint reading of Section 439 (2) and 439
(6) of the Criminal Procedure Code (V 1898) would
show that mere pendency of a revision petition which is
in the knowledge of the applicant would not mean that
notice has been issued to the applicant for enhancement
of his sentence. Only after a Criminal Revision for
enhancement of sentence is admitted to regular hearing
can it be said that the accused has now been put to notice
as to why his sentence should not be enhanced by this
court. The august Supreme Court of Pakistan in Javed
Ahmad alias Jaida.VS.The State & another 1978
S.C.M.R 114 held that no particular manner of service to
the accused has been prescribed in Section 439 (2)
Cr.P.C (V 1898), however, in the absence of a prescribed
procedure under Section 439 (2) Cr.P.C it would be
incumbent upon a court to issue a show cause notice to
the accused/convict regarding the enhancement of
sentence. Mere presence of an accused during the
pendency of an appeal would not amount to a substantial
compliance of a mandatory requirement that sentence of
an accused cannot be enhanced without issuing notice to
him as has been held in Nazal alias Nazoo.VS.The State
2000 P.Cr.L.J 2075.
7.
It is trite that this court while hearing a revision
petition under Section 439 Cr.P.C (V.1898) would
ordinarily not enhance the sentence awarded by the trial
Crl.M.No.2-2011 in Crl.A.104-2006
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court unless the findings of the trial court are found to be
perverse which have resulted in grave miscarriage of
justice. Where the only order passed by this court in a
Criminal Revision for enhancement of sentence of an
accused is “To be heard along with Criminal Appeal
No.104-2006”, it can by no stretch of imagination be said
that the accused has been put to notice for enhancement
of sentence.
8.
In normal course of events the applicant would be
entitled to bail on the ground that more than two years
have gone by and there is no likelihood of hearing of the
appeal filed by the applicant in the near future. It has not
been argued by the learned Deputy Prosecutor General or
the learned counsel for the complainant that the applicant
is a previously convicted offender, a hardened desperate
or dangerous criminal or is accused of an act of terrorism
punishable with death or imprisonment for life. There is
nothing on the record to show that the applicant has been
dragging his feet and has been instrumental in causing
delay in hearing of the main criminal appeal. The main
Criminal Appeal was admitted to hearing on 20.03.2006
and has not been decided till date. The trial court while
convicting the applicant observed that the motive has not
been established and proved beyond doubt. The trial
court has also observed that it cannot be said with
certainty as to whether or not the fatal injury could only
be attributed to the applicant. On a tentative assessment
Crl.M.No.2-2011 in Crl.A.104-2006
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which is to be made at this stage, this court is not of the
opinion that the applicant is a hardened or dangerous
criminal.
9.
For what has been stated above, this petition is
allowed, sentence of imprisonment of the petitioner is
suspended and he is admitted to bail subject to his
furnishing bail bonds in the sum of Rs.2,00,000/- (rupees
two lacs) with one surety in the like amount to the
satisfaction of the Deputy Registrar (J) of this Court. The
applicant is directed to appear before this court on each
and every date of hearing till the final disposal of the
main appeal.
(Kh.Imtiaz Ahmad)
Judge.
(Muhammad Yawar Ali)
Judge.
Announced in open Court on 15th December 2011.
Judge.
APPROVED FOR REPORTING.
Afzaal.
Judge.