MUHAMMAD KHAN vs THE STATE and others
This petition arose from a High Court order refusing to suspend the sentence of the petitioner, who had been convicted under Section 7(b) and (c) of the Surrender of Illicit Arms Act 1991 and sentenced to ten years' rigorous imprisonment for possessing illicit arms. The petitioner contended that his conviction was void and unsustainable because no notification under Section 4 of the Act had been issued, and that the Act was a one-time legislation, meaning any subsequent possession of illicit arms could only be prosecuted under the West Pakistan Arms Ordinance 1965. The Supreme Court of Pakistan declined to rule on the merits of these legal challenges to avoid prejudicing the petitioner's pending main appeal before the High Court. However, the Court determined that the petitioner had established a sufficient case for the suspension of his sentences. Consequently, the Court converted the petition into an appeal, allowed it, suspended the sentences during the pendency of the High Court appeal, and directed the petitioner's release on bail.
- Whether a sentence can be suspended under Section 426 of the Code of Criminal Procedure 1898 during the pendency of an appeal when arguable legal challenges to the validity of the conviction are raised?
- Can a person be prosecuted under the Surrender of Illicit Arms Act 1991 if no notification under Section 4 of the Act has been issued?
- Is the Surrender of Illicit Arms Act 1991 a one-time legislation such that subsequent possession of illicit arms must be prosecuted under the West Pakistan Arms Ordinance 1965?
- Section 7(b), Surrender of Illicit Arms Act 1991
- Section 7(c), Surrender of Illicit Arms Act 1991
- Section 4, Surrender of Illicit Arms Act 1991
- Section 426, Code of Criminal Procedure 1898
- West Pakistan Arms Ordinance 1965
' KHALIL-UR-REHMAN RAMDAY, J--- The petitioner who is stated to be a complainant in a murder case in which his son and his nephew had been murdered was found in possession of illicit arms i.e, one kalashnikov, one .12 bore double barrel gun and one .30 bore pistol. Pursuant to his trial, he was convicted under section 7(b) and (c) of the Surrender of Illicit Arms Act of 1991 and was punished with 10 years' R.I. He is now before the High Court impugning the said conviction and punishment recorded against him. Criminal Appeal No,1675 of 2004 filed by him for the purpose is still pending adjudication. The petition before the said learned Court under section 426, Cr.P.C.
Seeking suspension of the said sentences imposed upon him was dismissed through an order, dated 11-1-2005. Hence this petition.
2. Relying upon 1994 PCr.LJ 1446 and 2002 YLR 12, the learned Advocate Supreme Court for the petitioner submits that no notification as envisaged by section 4 of the said Act of 1991 had ever been issued, that the said Act was a one time legislation under which persons allegedly possessed of illicit arms after the notified date, if at all a notification was issued, could not be said to have committed an offence under the said Act and could be prosecuted only under the West Pakistan Arms Ordinance of 1965 and that under the circumstances, petitioners' conviction under the said Act of 1991 was a conviction which was void and which could not be sustained. It is added that the petitioner had been in custody for over an year.
3. The learned Advocate Supreme Court appearing for the State opposed this petition and has been heard in defence of the impugned order.
4. Since the above-mentioned appeal filed by the present petitioner is still pending disposal with the learned High Court, therefore, we consider it inappropriate to give our findings on the above noticed questions raised on behalf of the petitioner lest the same may prejudice the fate of the said petition. Suffice it, however, to say that the petitioner had made out a case which warranted suspension of the sentences awarded to him. Consequently, this petition is converted into an appeal which is allowed as a result whereof the sentences awarded to the petitioner are suspended during the pendency of the above-mentioned appeal before the learned High Court and he is directed to be released on bail subject to his furnishing security in the sum of Rs,2,00,000 with two sureties each in the like amount, to the satisfaction of the learned trial Court.