ALLAH JIVAYA vs STATE, etc
This is a criminal miscellaneous petition filed under Section 426 of the Code of Criminal Procedure 1898 seeking the suspension of a sentence awarded by the trial court. The petitioner was convicted under Section 302(c) of the Pakistan Penal Code 1860 and sentenced to life imprisonment, along with compensation under Section 544-A of the Code of Criminal Procedure 1898, while being acquitted under Section 324. The core legal question concerns whether the petitioner's sentence should be suspended pending appeal given the statutory delay in hearing the main appeal, the observation by the trial court regarding the right of self-defence, and the duration of detention already undergone. The Lahore High Court held that since a considerable period had elapsed without the appeal being fixed for hearing, and given the trial court's observation that the petitioner acted exceeding the right of self-defence inside his own house, the application for suspension of sentence ought to be accepted. The key principle laid down is that undue delay in the adjudication of an appeal against conviction, coupled with arguable points regarding self-defence and mitigated culpability, constitutes a valid ground for suspending a sentence under Section 426 Cr.P.C.
- Can a convict's sentence be suspended under Section 426 Cr.P.C. due to protracted delay in the disposal of an appeal?
- Does an observation by the trial court regarding the exercise of the right of self-defence provide a sufficient ground for the suspension of sentence during the pendency of an appeal?
- Whether the un-decided status of an appeal for over two and a half years warrants the release of a convict on bail.
- Section 426, Code of Criminal Procedure 1898
- Section 302(c), Pakistan Penal Code 1860
- Section 544-A, Code of Criminal Procedure 1898
- Section 382-B, Code of Criminal Procedure 1898
- Section 324, Pakistan Penal Code 1860
- Section 302(b), Pakistan Penal Code 1860
ORDER
Allah Jivaya son of Ghulam Abbas, has filed this petition under Section 426 Cr.P.C. seeking suspension of his sentence awarded by the learned Addl. Sessions Judge, Mianwali, vide judgment dated 30 07.2010. He was convicted and sentenced as under: Under Section 302(c) PPC to undergo life imprisonment and to pay a fine of Rs,300,000/- to the legal heirs of the deceased as required under Section 544-A, Cr.P.C. in default thereof, to further undergo imprisonment for six months. He was held entitled to the benefit of Section 382-B Cr.P.C.
However, he was acquitted of the charge under Section 324 PPC.
2. The allegation against the petitioner is that he along with other nominated accused persons committed qatl-e-amd of Amar Hussain son of Saeed Amir.
3. Learned counsel for the petitioner submits that out of five accused persons only the petitioner was awarded sentence whereas on the same evidence all other accused were acquitted; that an appeal was filed on 14.09.2010 and after a lapse of 2% years the same remained undecided; that the petitioner was arrested on 23.07.2009 and as such three years and seven months have already gone in detention; that the learned Addl. Sessions Judge, in Paragraph No 27 of his judgment, observed that the plea of the petitioner appears to be more reasonable, even in Paragraph No, 29 it was also observed that the petitioner has exceeded a little in his right of self-defence as the occurrence was inside the haveli where the complainant party has assaulted; that the fire upon the deceased was in retaliation of fire upon the person of minor Ameer Hussain. Prays for the grant of suspension of sentence.
4. Conversely, learned counsel for the complainant submits that actual name of the petitioner is Allah Diwaya and not Allah Jivaya; that the offence was under Section 302(b) PPC whereas sentence was awarded under Section 302(c) PPC. He also filed a Revision Petition No, 1060 of 2010 for enhancement of the sentence in which no notice was issued but is pending before this Court; that an appeal against the acquittal has also been filed which is yet to be fixed for hearing.
5. I have heard the learned counsel for the parties and perused the available record:
6. Admittedly, the appeal was filed on 14.09.2010 and as such a period of 2% years has elapsed. The early fixation of the case is not in sight. Even, otherwise the petitioner was awarded maximum sentence of life imprisonment under Section 302(c) PPC for the offence committed inside his own house in self-defence. The evidence against the other co-accused has not been believed by the trial Court which has also observed that the plea of the petitioner was more convincing. In this view of the matter by accepting this application I suspend the sentence of the petitioner provided he furnishes bail bonds in the sum of Rs, 100,000/- with two sureties each in the like amount to the satisfaction of the Deputy Registrar (Judi.) of this Court. He is directed to appear in this Court on each and every date of hearing till the final disposal of this criminal appeal.