Muhammad Shafique vs The State And Other

ORDER

ABDUS SATTAR ASGHAR, J. - This application under Section 426(1A)(b), Cr.P.C, is lodged by Muhammad Shafique for suspension of sentence. Awarded to him by the learned Magistrate Section-30, Sadiqabad vide order dated 17.2.2011 in case F.I.R. No. 169/1998, dated 29.4.1998 registered at Police Station, City Sadiqabad District Rahimyar Khan:--

(i) U/S. 334, PPC to seven years' R.I. With a fine of Rs. 20,000/- and in case of default in payment of the same further S.I. For two months.

(ii) U/S. 337-A(iii), PPC to pay Arsh 10% of Diyat prevalent at the relevant time to legal heirs of Muhammad Hanif and sentenced to undergo two years' S.I. As Tazir;

(iii) U/S. 337-F(iii), PPC to pay Rs. 20,000/- as Daman to the legal heirs of injured Muhammad Hanif and also sentenced to undergo S.I. For two years as Tazir.

2. As per record allegation against the petitioner is that he inflicted as many as four hatchet blow injuries on various parts of the body of his real brother Haji Muhammad Hanif sufficiently corroborated through medico-legal report. The petitioner being aggrieved of his conviction and sentences awarded by the learned Magistrate Section-30, Sadiqabad preferred an appeal before the learned Additional District Judge, Sadiqabad which was dismissed vide order dated 11.5.2011.

Being dissatisfied he preferred the criminal revision pending adjudication before this Court.

3. Record further reveals that petitioner's earlier application (Crl. Misc. No. 1/2011) for suspension of sentences has been dismissed on merits vide order of this Court dated 23.6.2011. Instant petition under Section 426(1A)(b), Cr.P.C, is lodged by the petitioner on statutory ground with the request that the revision petition against his conviction and sentences has not been decided within a period of one year of his conviction.

4. It is resisted by the leaned DPG for the State assisted by the learned counsel for the complainant with the contentions that benefit of provision of Section 426(1 A)(b), Cr.P.C, is not available to the petitioner during pendency of the criminal revision.

5. Arguments heard. Record perused.

6. At the outset it would be expedient to reproduce the provision of Section 426(1A)(b), Cr.P.C., which reads as under:-- "(1A) An Appellate Court shall, except where it is of the opinion that the delay in the decision of appeal has been occasioned by an at 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-

(b) to imprisonment for a period exceeding three years but not exceeding seven years and whose appeal has not beep decided within a period of one year of his conviction; or Provided that the provisions of the foregoing paragraphs 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 at of terrorism punishable with death or imprisonment for life."

7. Bare reading of the above-quoted provision of law transpires that it furnishes statutory right for suspension of sentence to an appellant on the ground of stipulated delay in disposal of his appeal if so solicited, In this case record reveals that that petitioner's appeal was decided by the learned Appellate Court within three, months of his conviction. Therefore right of appeal has already been exhausted by the petitioner before the learned Additional District Judge. The case in hand is a criminal revision under Section 439 read with Section 561-A, Cr.P.C.

8. Needless to mention that the High Court in exercise of powers under Sections 435, 439 and 561-A, Cr.P.C, can call for and examine the record of any proceedings before any inferior Tribunal/Court for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed etc. And when calling for such a record may direct that the execution of such sentence be suspended and, if the convict is confined, that he be released on bail or on his own bond pending examination of the record. No doubt in exercise of discretionary revisional jurisdiction High Court in exceptional cases of genuine hardship can suspend the sentence of a convict during the pendency of his revision petition, for example where the convict during the pendency of his revision petition develops an ailment of the nature that keeping him in detention/confinement may result into his death and that he cannot be provided requisite treatment under detention in the Government or other hospitals. Reliance be made upon Muhammad Ayub Vs. Muhammad Yaqub and The State (PLD 1966 SC 1003).

9. In this case petitioner's earlier application for suspension of sentences has already been dismissed on merits vide order dated 27.6.2011. It is obvious that while invoking discretionary revisional jurisdiction of the High Court the petitioner cannot solicit benefit under Section 426(1A), Cr.P.C. exclusively meant for delay in disposal of an appeal. Section 426(1A), Cr.P.C, does not furnish any statutory ground for suspension of sentence during the pendency of revision petition on account of delay in disposal. Therefore, this petition is not maintainable and thus dismissed.