FARZAND ALI vs THE STATE and others
This matter concerns a criminal petition filed under Section 426, Code of Criminal Procedure 1898, seeking the suspension of a sentence of life imprisonment awarded to the petitioner by the Sessions Judge, Pakpattan Sharif, following his conviction under Sections 302, 460, 392, and 337-F(i) of the Pakistan Penal Code 1860. The core legal question was whether the petitioner, who was not nominated in the initial First Information Report and whose conviction relied on the statement of a co-accused and an identification parade, was entitled to the suspension of his sentence pending the hearing of his main appeal. The Court held that the petitioner was entitled to the suspension of his sentence, noting that he was not nominated in the FIR, no specific role was attributed to him in the commission of injuries, and the recovery of the weapon was inconsequential due to the lack of a positive forensic report. The Court established that where the main appeal is unlikely to be heard in the near future and the petitioner's specific role requires deeper evidentiary reappraisal, suspension of sentence is appropriate.
- Can a sentence be suspended under Section 426, Code of Criminal Procedure 1898, where the petitioner was not nominated in the FIR and the main appeal is unlikely to be heard soon?
- Is the recovery of a weapon inconsequential for the purposes of bail or sentence suspension if there is no positive forensic report linking it to the crime?
- Does the lack of a specific role assigned to an accused in the commission of injuries warrant the suspension of their sentence pending appeal?
- Section 426, Code of Criminal Procedure 1898
- Section 302, Pakistan Penal Code 1860
- Section 460, Pakistan Penal Code 1860
- Section 395, Pakistan Penal Code 1860
- Section 412, Pakistan Penal Code 1860
- Section 14, Enforcement of Hudood Ordinance 1979
- Section 544-A, Code of Criminal Procedure 1898
- Section 392, Pakistan Penal Code 1860
- Section 337-F(i), Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
ORDER
' Farzand Ali, (petitioner/appellant) has filed this application under section 426, Cr.P.C. For suspension of his sentence awarded to him vide judgment dated 12-3-2011 by the learned Sessions Judge, Pakpattan Sharif, whereby in case F.I.R. No,259 dated 24-6-2009 registered under sections 302, 460, 395 and 412, P.P.C., read with section 14 (Enforcement of Hudood) Ordinance, VI, 1979 at Police Station Shorkot Cantt.,(sic) District (sic) Malka Hans, District Pakpatan Sharif, he has been convicted and sentenced as under:-
(i) Under section 460, P. P. C. Sentenced to life imprisonment R.I.
(ii) under section 302, P. P. C. Sentenced to life with compensation of Rs,2,00,000 payable to legal heirs of deceased under section 544-A, Cr.P.C. And in default of payment to further undergo six months' S.I.
(iii) Under section 392, P. P. C. Sentenced to 7 years R.I. With a fine of Rs,50,000 and in default of payment to further undergo six months' S . I .
(iv) Under section 337/F(i), P.P.C., daman of Rs,5,000 and one year R.I. By way of Tazir, by giving the benefit of section 382-B, Cr.P.C.
2. The learned counsel for the petitioner has contended that the petitioner is not nominated in the F.I.R. And even in the first supplementary statement of the complainant and he was involved in this case on the statement of co-accused; that he was arrested on 17-9-2009 and identification parade was conducted on 24-9-2009; that recovery of pistol has been shown against the petitioner during the investigation, which is inconsequential, as there is no positive report of Forensic Science Laboratory regarding the pistol, therefore, the petitioner is entitled to the suspension of his sentence.
3. This application has been opposed by learned D.P.-G. Assisted by learned counsel for the complainant. It is contended that the petitioner along with his co-accused had trespassed into the house of the complainant committed theft of house hold articles and when complainant and Muhammad Ahsan, deceased made resistance, his co-accused made fire-shot hitting in front of chest of deceased which passed away crossing his left flank; that there is sufficient evidence available against the petitioner, therefore, he is not entitled to the suspension of his sentence.
4. Arguments heard and record perused.
5. The petitioner is not nominated in the F.I.R. And he was implicated in this case on the statement of his co-accused. However, he was identified as accused of this case at the time of test identification parade but no role was assigned to him. The petitioner neither caused any injury to the deceased nor to any injured P.W. The recovery of weapon of offence made on the pointation of the petitioner is inconsequential as there is no positive report of Forensic Science Laboratory in this respect and he did not use the same in the occurrence. The question qua the role of the petitioner needs reappraisal of evidence at the time of hearing of main appeal. Co-accused of the petitioner Muhammad Shabbir has been sentenced to death. There is no likelihood of hearing of main appeal in the near future, which has been filed on 22-3-2011.
' The upshot of above discussion is that the instant petition is accepted and the sentence awarded to the petitioner by the learned trial Court is suspended. He shall be released on bail subject to his furnishing bail bonds in the sum of Rs,2,00,000 with one surety in the like amount to the satisfaction of the Deputy Registrar (J) of this Court.