MUSSARAT BIBI vs THE STATE
This matter arises from a criminal petition seeking suspension of sentence under section 426 of the Code of Criminal Procedure 1898, following the conviction of the petitioner and co-convicts under sections 302(b)/149 of the Pakistan Penal Code 1860 by the Sessions Judge, Gujrat. The core legal question concerns whether the sentence of life imprisonment should be suspended pending the appeal where contradictions exist between the deceased's dying declaration and the testimony of eye-witnesses, and where no recovery was effected from the petitioner. The court held that given the contradictions regarding the presence of eye-witnesses, the lack of recovery from the petitioner, and the unlikelihood of the main appeal being heard in the near future, the case is fit for suspension of sentence. The court laid down the principle that sentence can be suspended under section 426, Cr.P.C. pending appeal when arguable points regarding contradictions in evidence and lack of corroborative recovery emerge, and the appeal is not likely to be heard soon.
- Can a sentence of imprisonment be suspended under section 426 of the Code of Criminal Procedure 1898 pending the hearing of an appeal?
- Whether contradictions between a dying declaration and eye-witness testimony warrant the suspension of a convict's sentence?
- Does the absence of any recovery from the accused during investigation support the suspension of sentence pending appeal?
- Section 302, Pakistan Penal Code 1860
- Section 302(b), Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 544-A, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
- Section 426, Code of Criminal Procedure 1898
ORDER
' IJAZ AHMAD CHAUDHRY, J.---By virtue of judgment dated 17-6-2009 handed down by the learned Sessions Judge, Gujrat, on conclusion of trial in case F .I.R. No,529, dated 11-7-2008, registered under sections 302/148/149, P.P.C. At Police Station Kunjah District Gujrat, Ghulam Nabi petitioner and the co-convicts namely, Mst. Musarrat Bibi, Mst. Uzma commonly known as Shabana and Arshad Bibi were convicted under sections 302(b)/ 149, P.P.C. And were sentenced to imprisonment for life each as Tazir for committing intentional murder of Mst. Saima Bibi deceased with direction to pay a sum of Rs,1,00,000 each to the heirs of the above-said deceased by way of compensation under section 544-A, Cr.P.C. And in default of payment thereof to further undergo S.I. For six months each. All the sentences were directed to run concurrently and benefit of section 382-B, Cr.P.C. Was also extended to them. Through this petitioner under section 426, Cr.P.C. Ghulam Nabi petitioner has sought for the suspension of above-said sentence.
2. Learned counsel for the petitioner contends that in the dying declaration which has been reproduced in para. 19 of the judgment, the name of the petitioner as one of the accused who had administered some poison to the deceased has not been mentioned; that the only evidence against the petitioner is statement of Muhammad Mehdi who was husband of the deceased and Mazhar and they claimed themselves to be the eye-witnesses of the incident while the deceased in her dying declaration had excluded the witnessing of the incident by any other person; that they had only seen coming out of other accused women and the petitioner from the house of the deceased; that there was no other independent evidence against the petitioner; that no recovery had been effected from the petitioner; that no other corroborative piece of evidence has been brought on the record to directly connect the petitioner with the commission of crime.
3. On the other hand, learned Deputy Prosecutor-General opposes this petition vehemently on various grounds.
4. I have heard the learned counsel for the parties and also gone through the arguments advanced by the learned counsel for the parties as well as the judgment of the learned trial Court.
In para No,19 of the judgment dying declaration of Mst. Saima deceased has been reproduced by the learned trial Court, according to which name of the petitioner has not been mentioned as one of the accused who had administered something while mixing in the water to the deceased immediately before she was taken to hospital and there is also no mention that any other person had witnessed the incident. In such a situation whether the statement of Muhammad Mehdi and Mazhar Hussain that they had seen the co-accused of the petitioner and the petitioner coming out of the house of the deceased being in contradiction with the statement of the victim can be believed is a question to be resolved by this Court, but for the time being there is no likelihood for the hearing of the main appeal in the near future. Moreover, nothing was recovered from the possession of the petitioner during the investigation. In such circumstances, I find it a fit case for suspension of sentence. Consequently, this petition is accepted and sentence of the petitioner is suspended, who shall be released from jail subject to his furnishing bail bonds in the sum of Rs,1,00,000 with two sureties in the like amount each to the satisfaction of the learned trial Court.
However, he shall continue to appear before this Court on each and every date till the final disposal of this appeal. .