ABDUL GHAFFAR alias KALO and another vs STATE

ORDER

Mashooq alias Shoqi petitioner along with co-accused faced the trial in case FIR No, 19, dated 16.1.2007, under Sections 302/452/148/149 PPC, Police Station Mustafabad with regard to murder of Naveed Khadim. Learned Additional Sessions Judge, Kasur vide judgment dated 10.7.2008 has convicted him under Section 302(b)/34 PPC and sentenced to imprisonment for life and compensation Rs, 1,00,000/-under Section 544 Cr.P.C. In default to further undergo six months Simple Imprisonment with benefit of Section 382-B Cr.P.C. The afore-noted conviction and sentence has been assailed through Criminal Appeal No, 834-2008 before this Court lodged on 14.7.2008, which is pending adjudication.

2. Through this application under Section 426 Cr.P.C. petitioner Mashooq alias Shoqi has sought suspension of sentence passed against him by the learned trial Court on the ground that the titled appeal lodged on 14.7.2008 is pending disposal for the last three years and he is languishing in jail since 07.2.2007; that there is no probability of early conclusion of the titled appeal, therefore, he deserves suspension of sentence on the ground of statutory delay in, terms of latest amendment under Section 426(1 A)(c) Cr.P.C. It is further contended that petitioner is neither a previous convict nor a hardened, a desperate or a dangerous criminal.

3. It is resisted by learned Deputy Prosecutor General assisted by learned counsel for the complainant with the arguments that a fatal fire shot hitting the back of the deceased Naveed Khadim attributed to the petitioner is duly verified in the postmortem examination report; that the petitioner is convicted and sentenced on the basis of reliable ocular account duly corroborated by medical evidence constituting sufficient incriminating material to connect him with the murder of Naveed Khadim; that the petitioner along with co-accused launched an armed attack upon the residence of the deceased attracting the offence under Section 452 PPC resulting into murder of Naveed Khadim and rendering him a desperate criminal; that he is excluded for concession of suspension of. his sentence in terms of 1st proviso, of Section 426(1 A)(c) of Cr.P.C.

4. We have given patient hearing to the learned counsel for the parties, learned Deputy Prosecutor General for the State and perused the record with their able assistance.

5. During the course of arguments for concession of bail learned counsel for the petitioner has restrained himself to the statutory ground of delay in decision of the appeal. At the outset it will be appropriate to reproduce the relevant provision of Section 426(1A)(c) of the Cr.P.C. for ready reference:- "426(1 A)--An Appellate Court shall, except where it is of the opinion that the delay in the decision of appeal has been occasioned by an act or omission of the appellant or any other person acting on his behalf, order a convicted person to be released on bail who has been sentenced.

(c) to imprisonment for life or imprisonment exceeding seven years and whose appeal has not been decided within a period of two years of his conviction: Provided that the provisions of the foregoing paragraph shall not apply to a previously convicted offender for an offence punishable with death or imprisonment for life or to a person who in the opinion of the Appellate Court, is a hardened-desperate or dangerous criminal or is accused of an act of terrorism punishable with death or imprisonment for life.

6. Bare reading of the afore noted provision makes it crystal clear that right of a convict for suspension of the sentence on statutory ground of delay in disposal of appeal cannot be denied except on the grounds mentioned in the 1st proviso of Section 426(1A)(c) Cr.P.C. In this case complainant side has not been able to substantiate its contention with any speck of material that the convict/petitioner is a desperate or hardened criminal. Arguments of learned counsel for the complainant that petitioner along with co-accused launched an armed attack on the house of the deceased Naveed Khadim to cause his murder also attracting the offence under Section 452 PPC render him a desperate criminal, does not find favour from the record as the petitioner is not convicted under Section 452 PPC.

7. It is pertinent to mention that ground of delay in disposal of appeal for grant of suspension of sentence before the afore-referred statutory amendment was governed by discretion of the Court.

However, consequent upon the afore noted statutory amendment ground of delay in disposal of appeal for the purpose concession of bail now can be invoked as a matter of right except for the reasons mentioned in the 1st proviso of Section 426(1 A)(c) Cr.P.C. The word 'shall' in Section 426(1A)

Cr.P.C. is purposely used by the Legislature to protect the right of liberty of the convict when it becomes due in accordance with law. Discretion of the Court is extended only to the extent of the reasons mentioned in 1st proviso of Section 426(1 A)(c) Cr.P.C. and not beyond that.

8. In the instant case the prosecution has not been able to substantiate its contention to exclude the petitioner/accused for suspension of sentence on any of the reasons mentioned in the 1st proviso of Section 426(1 A)(c) Cr.P.C, therefore, without being prejudice to the merits of the case petitioner is entitled to the concession of suspension of his sentence on the statutory ground of delay in disposal of appeal for more than two years in terms of clause (c) of Section 426(1A) Cr.P.C.

9. For the above discussion and reasons this petition for suspension of sentence is accepted and petitioner is released on bail subject to his furnishing bail bonds in the sum of Rs,2,00,000/- (rupees two lacs) with two sureties each in the like amount to the satisfaction of Deputy Registrar (J) of this Court. He is also bound to appear before this Court on each and every date of hearing of this appeal.