TAHIR alias KALA vs STATE
This criminal miscellaneous petition was filed by Tahir alias Kala seeking suspension of his death sentence and release on bail during the pendency of his appeal before the Lahore High Court. The core legal question concerned whether the petitioner was entitled to post-conviction bail and suspension of sentence based on the acquittal of some co-accused, the suspension of sentences of other co-convicts, the role attributed to him, and the delay in the hearing of the main appeal. The court held that the second petition for the same relief was devoid of merit, noting that the petitioner was specifically charged with causing a fatal dagger blow to the deceased, distinguishing his role from that of the co-accused who were acquitted or granted bail. Furthermore, the court emphasized that evaluating the prosecution's evidence required an appreciation of testimony that could not be undertaken at the premature bail stage, and the delay in hearing the appeal was not unconscionable. The petition was accordingly dismissed.
- Whether a second petition for suspension of sentence and bail during the pendency of an appeal is maintainable after the withdrawal of a prior petition?
- Can post-conviction bail be granted on the ground of parity when the role of the petitioner is distinguishable from co-accused who were granted bail or acquitted?
- Is the appreciation of prosecution evidence permissible at the premature stage of deciding an application for suspension of a death sentence?
- What constitutes unconscionable or unusual delay in the hearing of a criminal appeal to warrant the suspension of a death sentence?
ORDER
Crl. Misc. No, 2 of 2004 Through this miscellaneous petition Tahir alias Kala petitioner-appellant has sought suspension of his sentence of ,death and release on bail during the pendency of his appeal before this Court.
2. In support of this petition it has been argued by the learned counsel for the petitioner that according to the prosecution's own case the petitioner had acted upon a commanding lalkara raised by the petitioner's father; Some co-accused of the petitioner have already been acquitted by the learned trial Court on the basis of the same evidence; it was not a fit case for a capital sentence; even otherwise the prosecution had failed to prove its case against the petitioner beyond reasonable doubt; the sentences awarded by the learned trial Court against some of the petitioner's co-convicts have already been suspended by this Court and they have been released on bail; the petitioner has already spent about two and a half years in jail in connection with this case and there is no prospect of an early hearing of the petitioner's main appeal.
3. We have straightaway observed that this is the second petition filed by the petitioner seeking the self-same relief. His earlier petition (Criminal Misc. No, 1 of 2004) had been dismissed by this Court as having been withdrawn on 29.7.2004 after the learned counsel for the petitioner had addressed elaborate arguments in support of the same but had failed to convince this Court regarding the petitioner's release on bail. After hearing the learned counsel for the parties and going through the impugned judgment passed by the learned trial Court we have noticed that the petitioner stands saddled with the responsibility of causing the fatal dagger below on the back of Muhammad Ashraf deceased. After assessing and evaluating the evidence available on the record the learned trial Court had felt convinced that the prosecution had succeeded in establishing the petitioner's guilt beyond reasonable doubt and resultantly the petitioner was sentenced to death. The roles alleged against the acquitted co-accused of the petitioner and against the petitioner's co- convicts already admitted to bail after suspending their sentences were- quite distinguishable from that alleged against the petitioner. Be that as it may the fact remains that the submissions made by the learned counsel for the petitioner in support of the present miscellaneous petition necessarily require appreciation of the evidence which exercise cannot be undertaken by us at such a premature stage. The petitioner's main appeal before this Court is only a few months old and, thus, the delay in the hearing of the said appeal has not been found by us to be either unconscionable or unusual at such a stage. This miscellaneous petition is, therefore, dismissed.