KHURSHID AHMAD vs THE STATE

ORDER

Criminal Miscellaneous No,619 of 2005 Through this Cr.M. The petitioners seeks suspension of his sentence imposed on him by the learned Additional Sessions Judge, Bahawalnagar on 26-10-2004, directing him to pay Arsh in the sum of Rs,2,00,000 in case F.I.R. No,120 dated 13-5-1997 under sections 336, 337-F(v) and 337-A(i), P.P.C., Police Station Saddar Bahawalnagar.

2. The facts briefly stated are that petitioner was tried in the above mentioned case by a learned Magistrate Section 30 Bahawalnagar and was convicted and sentenced as under:-- Under section 336, P.P.C.

Sentenced to seven years' R.I. And also to pay Rs,19,000 as Arsh. Suspend Under section 337-F(v), P.P.C. Sentenced to three years' R.I. And also to pay daman of Rs,8,000.

Under section 337-F(i), P.P.C. Sentenced to one year's R.I. With further direction to pay Rs,3,000 as Daman. All the sentences were ordered to run concurrently. The benefit under section 382-B, Cr.P.C. Was extended. As on the date of pronouncement of the above conviction and sentence the petitioner was on bail, his bail bonds were forfeited and he was taken into custody. The learned trial Court ordered his detention in Jail till the payment of above amounts of Arsh and Daman.

3. Against the said judgment the petitioner filed Criminal Appeal No,68 of 2000 challenging his conviction and sentence whereas the complainant filed Criminal Revision No,41 of 2000 before this Court seeking enhancement of petitioner's sentence. However, this Court vide order dated 23-7- 2004 returned both the matters to the learned Sessions Judge, Bahawalnagar as against the impugned order of the learned trial Magistrate; appeal/revision was available before the Sessions Court. On return the learned Sessions Judge, Bahawalnagar entrusted the same to Mr. Shahzad Pervez Abbasi, learned Additional Sessions Judge, Bahawalnagar who vide order dated 26-10-2004 while maintaining the conviction as recorded by the trial Court, dismissed the petitioner's appeal.

However, while accepting the Criminal Revision filed by the complainant, enhanced the amount of Arsh from Rs,19,000 to Rs,2,00,000. Since by that time the petitioner had already served out his sentence of imprisonment and had also paid the amount of Arsh as imposed by the trial Court he was released from Jail, therefore, the learned Additional Sessions Judge, while passing the order dated 26-10-2004 besides enhancing the amount of Arsh from Rs,19,000 to Rs,2,00,000 also ordered the petitioner to be taken into custody and sent to jail till the time he pays whole of the enhanced amount of Arsh. Through Criminal Miscellaneous No,1392-Q/2004 the petitioner has challenged the above enhancement of Arsh amount, whereas through W.P. No,4264/04 the petitioner/complainant seeks further enhancement of amount of Arsh. The office is directed to fix both the above matters together after notice to the State, on 6-5-2005.

4. While arguing C.M. No,619 of 2005) for suspension of enhanced sentence of Arsh from Rs,19,000 to Rs,2,00,000, the learned counsel for the petitioner/convict contends that the learned Additional Sessions Judge, has committed illegality by sending the petitioner to jail., whereas under section 337-X, P.P.C. Arsh would become payable after three years of final judgment by the Court and since the order of the learned Additional Sessions Judge, has now been challenged before this Court, the petitioner could not be sent to jail unless the sentence of payment of Arsh has become final and a period of three years from the date of said final judgment, has expired. Hence, according to the learned counsel for the petitioner, he is entitled to be released on bail and the order of payment of balance enhanced amount of Arsh be suspended.

5. On the other hand, learned counsel for the respondent/ complainant has opposed this petition on two grounds. His first contention is that this Court has got no jurisdiction to suspend the sentence of Arsh as according to the learned counsel, the sentence of punishment can only be suspended either in appeal or revision but not in a matter filed in residual provision of section 561- A, Cr.P.C. Under which the main Criminal Miscellaneous No,1392-Q/2004 has been filed. His second argument is that until the final judgment is passed by this Court, the sentence of Arsh cannot be suspended.

6. Heard.

7. I am afraid neither of the above contentions of the learned counsel for the respondent/complainant is sustainable for the simple reason that this Court has got ample powers under section 561-A, Cr.P.C. To pass appropriate orders in the interest of justice. Similarly, the second contention of the learned counsel is neither convincing nor supported by any provision of law. I am therefore, satisfied that this Cr.M. No,619 of 2005 under section 561-A, Cr.P.C. For suspension of sentence of payment of Arsh imposed by the learned Additional Sessions Judge, Bahawalnaga is maintainable. I therefore, allow the same and suspend the order of learned Additional Sessions Judge dated 26-10-2004 enhancing the amount of Arsh from Rs,19,000 to Rs,2,00,000 till the final decision of the main Criminal Miscellaneous. The petitioner is directed to be released on bail subject to his furnishing bail bond in the sum of Rs,2,00,000 with one surety in the like amount to the satisfaction of learned trial Court. The petitioner, shall however, keep on attending this Court till final outcome of the main Criminal Miscellaneous and in case, the main petition is decided against him or finding of this Court is adverse to his interest, he shall voluntarily surrender before this Court for appropriate orders. Cr.M.No,619 of 2005 is disposed of accordingly.