Muhammad Kashif @ Kashi vs The State And Another
This matter comes before the Lahore High Court through a criminal petition filed by Muhammad Kashif alias Kashi seeking the suspension of his sentence of imprisonment for life and concurrent terms after being convicted by the trial court under Section 302(b)/34 and Section 324 of the Pakistan Penal Code 1860. The core legal question concerns whether the petitioner's sentence should be suspended pending the appeal, given the nature of the allegations, the lack of firearm recovery, the absence of a fatal injury attributed to him, and the extended period already spent behind bars with no likelihood of an early hearing. The court held that the applicability of vicarious liability under Section 34 of the Pakistan Penal Code 1860 required serious consideration at the main appeal stage, and considering the substantial incarceration period and the unlikelihood of a near-future hearing, the sentence ought to be suspended. The key principle laid down is that where a convicted person has undergone a substantial portion of their sentence and the main appeal cannot be heard in the near future, alongside arguable points regarding vicarious liability, the sentence may be suspended pending final disposal of the appeal.
- Whether a convicted person's sentence can be suspended pending appeal when the main appeal is not likely to be heard in the near future?
- Does the debatable application of common intention under Section 34 of the Pakistan Penal Code 1860 constitute a ground for suspending a sentence?
- Can prolonged incarceration coupled with remissions serve as a valid consideration for the suspension of sentence during the pendency of an appeal?
- Section 302(b), Pakistan Penal Code 1860
- Section 34, Pakistan Penal Code 1860
- Section 544-A, Code of Criminal Procedure 1898
- Section 324, Pakistan Penal Code 1860
- Section 382-B, Code of Criminal Procedure 1898
ORDER Through this petition, petitioner/appellant Muhammad Kashif alias Kashi seeks suspension of his sentence, who has been convicted and sentenced by the learned Trial Court as under:-
(i) Imprisonment for Life under Section 302(b)/34, P.P.C, with a compensation of Rs. 50,000/- under Section 544-A, Cr.P.C, to the legal heirs of the deceased and in default of payment of compensation to further undergo six months'S. I.
(ii) Ten Years' R.I. Under Section 324. P.P.C, with a fine of Rs. 25,000/- and in default of payment of fine to further undergo two months' S.I., as well as a compensation of Rs. 10,000/- under Section 544-A, Cr.P.C, to the injured and in default thereof to further undergo one month's S.I.
All the sentences have been ordered to run concurrently and benefit of Section 382-B, Cr.P.C, has been given to the petitioner.
2. Learned counsel for the petitioner, in support of this petition, contends that the allegation against the petitioner is that he was armed with a pistol and has caused fire-arm injury on the right thigh of injured Mohsin Ali;, that no pistol was recovered from the petitioner and there is no allegation of causing any injury to the deceased against the petitioner; that the petitioner is behind the bars for the last more than six years and if the remissions are included he has served of the sentence of about eight years as is clear from the report submitted by the Jail Superintendent; that the petitioner has been convicted under Section 302(b) read with Section 34, P.P.C, whereas there is no such evidence which could attract the provisions of Section 34, P.P.C, qua the petitioner and this fact even otherwise shall finally be determined at the time of hearing the main appeal which is not in sight in the near future.
On the other hand, learned Deputy Prosecutor General assisted by learned counsel for the complainant opposes this petition by contending that the petitioner alongwith his co-accused came at the place of occurrence while armed with deadly weapons, therefore, the provisions of Section 34, P.P.C, are fully attracted; that the petitioner has been convicted after a regular trial and he is not entitled for suspension of his sentence.
4. Heard. Record perused.
5. As per the prosecution case the deceased was fired at by co-convict of the petitioner namely Fayyaz Ahmad alias Ghorra who has been sentenced to death by the learned Trial Court. The allegation against the petitioner is that he was armed with a pistol and has caused fire-arm injury on the right thigh of injured Mohsin Ali and there is no allegation against him of repeating the fire or causing any injury to the deceased. According to the report dated 08.04.2011 submitted by the Superintendent, Central Jail, Lahore, including remissions the petitioner has served of the sentence of 07 years, 09 months and 13 days. The question, whether the petitioner is vicariously liable for the at of his co-convict Fayyaz Ahmad alias Ghorra needs serious consideration at the time of hearing of the main appeal. The co-convict of the petitioner namely Fayyaz Ahmad alias Ghorra has been sentenced to death and there is no likelihood of hearing of the appeal of the petitioner in near future. We, therefore, allow this petition and suspend the sentence of the petitioner till the final disposal of his criminal appeal, subject to his furnishing bail bond in the sum of Rs. 200,000/- (Rupees two hundred thousand only) with one surety in the like amount to the satisfaction of the Deputy Registrar (Judicial) of this Court. However, the petitioner shall remain present before this Court on each and every date of hearing fixed in the main appeal.