NAVEED alias NAVIDI vs THE STATE

ORDER

C.M. No.1 of 2011 Through this criminal miscellaneous, Navid alias Navidi, petitioner-appellant seeks suspension of his sentences on the statutory ground i.e. Non-disposal of his appeal within the stipulated period mentioned in the latest amendment in section 426, Cr.P.C. The petitioner/appellant has been convicted and sentenced by the learned Additional Sessions Judge, Faisalabad vide impugned judgment dated 19-2-2007, as under:-- Under section 302(b), P.P.C.

Life Imprisonment with a compensation amounting to Rs.50,000 to be paid to the legal heirs of Muhammad Younus (deceased) or in default thereof to undergo Simple Imprisonment for six months.

Under section 337-F(iii)/34, P.P.C.

Rigorous imprisonment for one year and to pay an amount of Rs.5,000 as Daman to Muhammad Din alias Manna injured/P .W.

Both the sentences were ordered to run concurrently and benefit of section 382-B, Cr.P.C. Was also extended to the accused/petitioner.

2. Learned counsel for the petitioner contends that the petitioner/appellant was arrested on 30-3- 2006 and has been convicted and sentenced by the learned trial court on 19-2-2007; he has preferred appeal before this Court on 27-2-2007, but even after the lapse of more than four years his appeal has not been decided, therefore, in view of the amendment in section 426, Cr.P.C, he deserves suspension of his sentence.

3. Conversely, learned Deputy Prosecutor-General assisted by learned counsel for the complainant opposes this petition on the grounds that case against the petitioner has been proved beyond any shadow of doubt and he has been convicted and sentenced after a regular trial by the learned trial court; that two petitions on the same subject filed on behalf of the petitioner, have already been dismissed by this Court. Further add that there is a fair chance of early fixation of the appeal of the petitioner as it relates to the year 2007 and this Court is dealing with such like appeals filed in the year 2006.

4. Heard. Record perused.

5. Prior to the promulgation of Act No.VIII of 2011, two petitions of the petitioner for suspension of sentence were dismissed by this Court on 19-3-2009 through Criminal Miscellaneous No. 1 of 2009 and on 4-6-2009 through Criminal Miscellaneous No.2 of 2009, respectively. The petitioner is behind the bars for the last about five years and four months. Appeal of the petitioner is pending since 27-2-2007 and it is not likely to be fixed in the near future for the reason that his co-accused Muhammad Aslam alias Nannha has been convicted and sentenced to death through the same judgment. As far as disposal of two earlier petitions of the petitioner seeking the same relief is concerned, suffice it to mention that seeking suspension of sentence in view of the amended section 426(1-A), Cr.P.C. Is an independent right and an accused can validly apply for the relief even after the dismissal of his petition on merits under section 426, Cr.P.C. Here we respectfully refer the case of Liaqat and another v. The State (1995 SCM R 1819) wherein the Hon'ble Supreme Court, in view of the insertion of old subsection (1-A) in section 426, Cr.P.Code has observed as under:-- "The effect of 'insertion of subsection (1-A) after subsection (1) of section 426, in the Code of Criminal Procedure in our view, is that the appellant/convict has been conferred a right to ask for bail pending his appeal, if the Court is unable to dispose of his case within the periods specified in sub-clauses (a) to (c) of section 426(1-A), Cr. P.C. This right of the convict/appellant is independent of his right to seek suspension of his sentence by the appellate Court on merits under section 426(1),. Cr.P.C. The right conferred on the appellant/convict under section 426(1-A), Cr. P.C, therefore, can be exercised by him, notwithstanding the fact that the appellate Court, in exercise of its discretion had earlier declined his prayer for suspension of his sentence on merits under section 426(1), Cr.P.C. As a necessary corollary, therefore, it follows that the appellate Court cannot decline to suspend the sentence of an appellant under section 426(1 -A), Cr. P. C. On the ground the appellant has no case on merits or that he would not be entitled to bail on merits or that he has been declined bail earlier on merits".

It is pertinent to mention here that subsection (1-A) of section 426, Cr.P.C. Referred in the judgment of the Hon'ble Supreme Court was omitted on 10-10-2001 by the Ordinance LIV of 2001 but on 21-4- 2011 by the Act No. VIII of 2011. It has been re-enacted as follows:-- 426(1-A), Cr.P.C.

An. Appellate Court shall, except where it is of the opinion that the delay in the decision of appeal was 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--

(a) to imprisonment for a period not exceeding three years and whose appeal has not been decided within a period of six months of his conviction;

(b) to imprisonment for a period exceeding three years but not exceeding seven years and whose appeal has not been decided within a period of one year of his conviction; or

(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 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 act of terrorism punishable with death or imprisonment for life.

The above quoted latest amendment is the same (except the proviso) as was introduced in section 426, Cr.P.C. By the Law Reforms Ordinance, 1972, therefore, the rule laid down in, the case of Liaqat Ali (supra) shall apply stricto senso to give effect to the reenacted provision in section 426 mentioned above. As far as proviso to the newly-added subsection (1-A) is concerned, it is mentioned in the proviso that Court while dealing with the petition for suspension of sentence, can refuse to exercise its discretion if the convict is previously convicted offender or in the opinion of the Court is a hardened, desperate or dangerous criminal or is an accused of an act of terrorism punishable with death or imprisonment for life. The plain reading of the provision of law shows that the legislature has inserted the word "shall" purposely to make the same mandatory and in the case falling within the purview of subsection (1-A) of section 426, Cr.P.C., suspension of sentence is a rule and its refusal is an exception, however, Court can refuse the same if the case of the convict falls within the proviso referred above. Needless to add that an appellate court while . Deciding such an application, is under obligation to ascertain that delay in decision of the appeal has not been occasioned by any act or omission of the appellant or any person acting on his behalf.

Keeping in view the facts and circumstances of this case, we are of the considered view that petitioner is not responsible for the delay in decision of his appeal in any manner whatsoever and further that case of the petitioner does not fall within the proviso of subsection (1-A) referred above, therefore, without touching the merits of the case, we 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.