MUHAMMAD HANIF and others vs THE STATE and others
This criminal miscellaneous application was filed under section 426 of the Code of Criminal Procedure 1898 seeking suspension of sentence and release on bail pending appeal by the petitioner Shahid Shafique, who had been convicted under sections 302(b)/149, 148, and 324/149 of the Pakistan Penal Code 1860 and sentenced to life imprisonment. The core legal question was whether the petitioner's sentence of imprisonment for life should be suspended and bail granted due to the protracted delay in the disposal of his main criminal appeal, where he was not responsible for the delay and was not a previous convict or a hardened criminal. The Lahore High Court held that since the petitioner had been incarcerated for a considerable period without his appeal being fixed for hearing, and without any contributory delay on his part, he had earned a right to have his sentence suspended. The court laid down the principle that undue delay in the adjudication of an appeal against conviction, not attributable to the appellant, warrants the suspension of sentence and grant of bail under section 426, Cr.P.C., provided the convict is not a hardened criminal or a previous convict for a capital offence.
- Whether the sentence of a life-convict can be suspended under section 426 of the Code of Criminal Procedure 1898 due to delay in the hearing of his appeal?
- Does prolonged incarceration without the prospect of an early hearing of the criminal appeal entitle a convict to bail?
- Is a convict who is not a previous offender or a hardened criminal entitled to suspension of sentence when the delay in deciding the appeal is not caused by him?
- Section 302(b), Pakistan Penal Code 1860
- Section 149, Pakistan Penal Code 1860
- Section 148, Pakistan Penal Code 1860
- Section 324, Pakistan Penal Code 1860
- Section 426, Code of Criminal Procedure 1898
ORDER
Criminal Miscellaneous No.! Of 2011 ' SHAHID HAMEED DAR, J.--- The petitioner Shahid Shafique, having been convicted under sections 302(b)/149, 148, 324/149 P.P.C. And sentenced to various punishments including life imprisonment, by the learned Additional Sessions Judge, Faisalabad on 28-7-2007, through this application under section 426, Cr.P.C. Seeks suspension of the sentence and his consequential release on bail.
2. Learned counsel for the petitioner submits that the petitioner has been convicted and awarded sentence merely on conjectures and surmises; the petitioner was not assigned any role whatsoever by the complainant or his witnesses during the course of investigation but they improved upon their previous statements during the Course of trial whereby they (P.W.15, P.W.16 and P.W.17) attributed a joint role to the petitioner that he along with his, co-convicts Shaukat Ali, and Muhammad Ramzan fired effectively and thereby caused injuries to Muhammad Anwar (P.W.15), Ghulam Sabir (P.W.16) and Muhammad Arshad (P.W.17); even in his supplementary statement got recorded by the complainant on 19-11-2005, he did not ascribe any role against the petitioner and the prosecution case till then only disclosed that the petitioner drove a car at the time of occurrence; . The petitioner underwent full term of physical remand and nothing was recovered at his instance; the Investigating Officer could not find any crime empty of pistol 30 bore during spot inspection; the petitioner was arrested on 2-2-2006 and was awarded sentence vide judgment dated 28-7-2007; he has challenged his conviction/ sentence through Criminal Appeal No.912 of 2007 which is still undecided and pending adjudication; the petitioner has not attributed towards delay in decision of the appeal nor any other person acting on his behalf is responsible for such lassitude; two co-convicts of the petitioner have been awarded death sentence by the trial court so there is no probability of early hearing/fixation of the above said appeal; the petitioner is not a. Previous convict for an offence entailing capital punishment nor he is a hardened, dangerous or desperate criminal; relies upon "Sanaullah' Khan v. The State" (2010 SCMR 608), "Hafiz Tanveer v. The State and another" (PLD 2010 Lahore 156), "Raja Shamshad Hussain v. Gulraiz Akhtar and others" (PLD 2007 SC 564), "Barkat Hussain v. The State" (1995 SCMR 1109) and "Muhammad Yagoob and others v. The State" (1991 SCMR 1459).
3. On the other hand, learned Deputy Prosecutor General Punjab assisted by learned counsel for the complainant submits that the court has always been slow in entertaining the plea of a convict for suspension of sentence lest it should prejudice the case of either of the two sides; there is a probability of early fixation of the appeal filed by the petitioner and by his co-appellants, the decision of a petition for suspension of sentence on merits has not been approved by the Hon'ble Supreme Court of Pakistan; relies upon "Makhdoom Javed Hashmi v. The State" (2007 SCMR 246), "Babar Ali v. Bashir. Ahmad and another" (2007 SCMR 184), "Farhat Azeem v. Waheed Rasul and others" (PLD 2000 .SC 18), "Bashir Ahmad v. Zulfiqar and another" (PLD 1992 SC 463).
4. After having heard learned counsel for the parties and perused the record, we find that the petitioner was arrested on 2-2-2006 and he stands incarcerated ever since. He was convicted/sentenced vide judgment dated 28-7-2007 passed by learned Additional Sessions Judge, Faisalabad which was impugned by the petitioner through an appeal (Criminal Appeal No.912 of 2007) and the same has not been fixed for hearing so far. No circumstance has been hinted at either by A learned counsel for the complainant or learned Deputy Prosecutor-General Punjab that the petitioner or any other person acting on his behalf is responsible for causing delay in the decision of above said appeal. By the afflux of time, the petitioner has earned a right to ask for the relief prayed for. The petitioner is not a previous convict of death sentence or imprisonment for life nor any circumstance appears on the record to dub him a hardened, clangorous or desperate criminal,.
5. So far as the merits of the case are concerned, the petitioner did not fire at the deceased rather he along with his co-convicts fired at the above said injured P. Ws. Therefore, we accept this application and suspend the sentence of the petitioner. He shall be released on bail subject to furnishing bail bonds in the sum of Rs.1,00,000 with two sureties each in the like amount to the satisfaction of the learned trial Court. The petitioner is directed to appear before this Court on each and every date of hearing of main appeal.