MUHAMMAD ARSHAD and others vs THE STATE
This criminal miscellaneous petition was filed under Section 426 of the Code of Criminal Procedure 1898, seeking the suspension of sentence and release on bail pending the final adjudication of an appeal against conviction. The petitioner, convicted under Section 324 of the Pakistan Penal Code 1860, argued that despite being accused of firing a pistol, no injury was attributed to him, and the conviction was legally questionable. The State opposed the application, asserting the petitioner's presence at the scene and vicarious liability. The Court observed that while the petitioner was armed and allegedly fired a shot that missed, no injury was caused to any prosecution witness, and notably, no specific charge under Section 324 of the Pakistan Penal Code 1860 had been framed against him. Recognizing that the main appeal was unlikely to be heard in the near future, the Court held that the petitioner might serve the entire sentence before the appeal's disposal. Consequently, the Court suspended the sentence and granted bail, emphasizing the necessity of preventing the petitioner from serving a potentially unsustainable sentence before the appeal is decided.
- Can a sentence be suspended under Section 426 of the Code of Criminal Procedure 1898 when the main appeal is unlikely to be heard in the near future?
- Does the absence of a framed charge under the relevant section of the Pakistan Penal Code 1860 affect the sustainability of a conviction during the pendency of an appeal?
- Section 426, Code of Criminal Procedure 1898
- Section 324, Pakistan Penal Code 1860
- Section 238(2), Code of Criminal Procedure 1898
- Section 238(2A), Code of Criminal Procedure 1898
- Section 544-A, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
ORDER
C. M. 1 of 2009 'IJAZ AHMAD CHAUDHRY, J.---Through this criminal miscellaneous filed under section 426 Cr.PC petitioner has sought for suspension of sentence, who vide judgment dated 9-6-2009, passed by the learned Additional Sessions Judge, Pattoki, District Kasur was convicted as under:---
(i) Under section 324 P.P.C. Invoking section 238(2) and (2A) Cr.P.C. And sentenced to Ten Years Imprisonment and compensation of Rs,50,000 under section 544-A 'Cr.P.C. To the heirs of deceased or in default of payment thereof to further undergo 6 months' S.I.
'The sentence was directed to be run concurrently and the benefit of section 382-B, Cr.P.C. Was also given to the convicts.
2. The learned counsel for the petitioner/appellant has contended that the allegation was levelled against the petitioner that he had fired with his pistol, but the same was missed and no injury has been attributed to the petitioner, but inspite of that he was convicted and sentenced illegally, which is not maintainable, but there is no likelihood of fixation of main appeal in the near future.
3. The learned Deputy Prosecutor General has opposed the petition on the ground that he was present at the spot and judgment has been passed only on 9-62009; that the petitioner made the first fire, which though missed, but the petitioner-convict was vicariously liable for the offence, who has already been dealt with leniently in the quantum of sentence.
4. I have heard the learned counsel for the parties and perused the impugned judgment.
5. Although the petitioner was armed with pistol and alleged to have made the first fire, which missed, but admittedly he was not attributed injury to any P.W. Moreover, no charge was framed under section 324 P.P.C. And in such circumstances whether the conviction and sentence of the petitioner can be maintained by this Court is a question to be determined by this Court, but for the time being there is no possibility of hearing of the main appeal in the near future and the possibility cannot be ruled out that the petitioner may serve out the whole sentence before the fixation of the main appeal for final hearing. Hence, this petition is accepted, the operation of the conviction and sentence awarded to the petitioner is suspended and he shall be released on bail subject to his furnishing bail bonds in the sum of Rs,1,00,000 with two sureties each in the like amount to the satisfaction of learned trial Court. However, the petitioner shall continue to appear before this Court on each and every date of hearing in the main appeal till its final disposal.