MUHAMMAD IJAZ vs The STATE and anothers

ORDER

' Muhammad Ijaz son of Sher Muhammad was tried by learned Sessions Judge, Khushab in case F.I.R. No,184 of 2002 dated 18-8-2002 registered under sections 302, 324, 148 and 149, P.P.C. At Police Station Khushab and was convicted under section 302(b), P.P.C., hence, awarded death penalty as Ta'zir with compensation of Rs,25,000 to be paid to the legal heirs of deceased. He was also convicted under section 337-A(ii), P.P.C. For two years' R.I. Vide judgment dated 18-2-2003. His Criminal Appeal No,402 of 2003 along with Murder Reference No,223 of 2003 was decided by this Court vide judgment dated 12-11-2008. The conviction passed against the petitioner was upheld, however, death sentence was converted into imprisonment for life with further direction to pay a sum of Rs,1,00,000 as compensation under section 544-A, Cr.P.C. To the legal heirs of Muhammad All deceased. The petitioner filed Criminal Petition No,403-L of 2012 and leave was granted vide order dated 21-6-2012 by the Hon'ble Supreme Court of Pakistan. Petitioner/convict Muhammad Ijaz has filed this petition under section 426(2B), Cr.P.C. With a prayer for suspension of his sentence till the final disposal of the appeal filed before the Hon'ble Supreme Court of Pakistan.

2. Learned counsel for the petitioner contends that the case against the petitioner was totally false and prosecution was miserably failed to prove its case against him and the learned trial Court misread the evidence available on record which resulted in miscarriage of justice; that as the leave has already been granted to the petitioner by the Hon'ble Supreme Court of Pakistan and petitioner is behind the bars for the last more than 10 years, hence, he is entitled for suspension of his sentence and to be released on bail on statutory ground. Learned counsel while relying on 2009 PCr.LJ 257 (Atta Ullah alias Hasnain alias Hassan v: The State) prayed that sentence passed against the petitioner be suspended and he be directed to be released on bail till the final disposal of the appeal filed before the Hon'ble Supreme Court of Pakistan.

3. Conversely, learned DPG assisted by learned counsel for the complainant has vehemently opposed this petition on the ground that no extraordinary circumstance exists for suspension of sentence passed against the petitioner as this court maintained the conviction passed against the petitioner and only on technical ground his death sentence was converted into imprisonment for life; that mere leave granting order is not sufficient to draw an inference in favour of the petitioner about his guilt or innocence and as the Hon'ble apex Court has yet to evaluate the evidence and reach an a conclusion, hence, this petition is liable to be dismissed. 9rayed that this petition he dismissed.

4. We have considered the arguments advanced by learned counsel for the parties.

5. No doubt petitioner moved Criminal Petition No, 403-L of 2012 against the judgment dated 12-11- 2008 wherein leave was granted by the Hon'ble Supreme Court of Pakistan. The relevant paragraph of the leave granting order is hereby reproduced:-- "Learned counsel for the petitioner contends that co-accused of the petitioner, namely, Allah Ditta and Muhammad Matta also received injuries during the occurrence but the same were suppressed by the P. Ws in their statements under section 161, Cr.P.C. And also while appearing in the witness box before the learned Trial Court. It is further contended that learned Division Bench of the High Court has observed that in the incident took place at the spur of the moment in front of the shop of the petitioner as per the first stance taken by the petitioner and co-convict that the complainant party was the aggressors and has caused injuries to the accused. It is further contended that all other accused had been acquitted from the charge under section 302(b), P.P.C.

Including those who caused injury to the deceased whereas only the petitioner has been convicted. It is also contended that the prosecution has not been able to prove the case against the petitioner warranting his conviction under section 302(b), ' This Court while deciding the appeal filed by the petitioner in Para 11 of the judgment observed:- "Now we proceed to determine the criminal liability of each appellant. Since the injury, the direct result of cause of death of the deceased, was inflicted by Ejaz Ahmad appellant, therefore, his conviction under section 302(b), P.P.C. Is maintained. However, his sentence is reduced from death to imprisonment for life as us the given circumstances, the penalty of death would not be justified.

He is directed to pay a sum of Rs,1,00,000 as compensation under section 544-A, Cr.P.0 to the legal heirs of Muhammad Ali, deceased and in default whereof to undergo simple imprisonment for six months. Benefit of section 382-B Cr. P. C. Is extended to him."

' Admittedly, conviction passed against the petitioner was maintained by this Court, however, death sentence awarded to him was converted into imprisonment for life. The fatal injury was attributed to the petitioner, hence, the judgment passed by the learned trial Court about the liability of the petitioner was upheld by this Court. Reasons on the basis of which the Hon'ble Supreme Court of Pakistan passed the leave granting order show that the plea raised by the petitioner that he was responsible for sole injury and prosecution was not able to prove the charge is to be looked into by the Hon'ble Supreme Court of Pakistan itself as this court has already passed a verdict and arguments advanced on behalf of the petitioner/convict have been repelled, therefore, at this stage this court further cannot go into these controversies. The legislature while enacting subsection (2-B) of section 426, Cr.P.C. Has used the words, ."it may, if it so thinks fit order that pending the appeal the sentence or order appealed against be suspended". In the present circumstances in the light of above discussion no ground is available for suspension of sentence passed against the petitioner/convict. As far as suspension of sentence on statutory delay is concerned, as no appeal is pending before this Court, therefore, subsection (2-A) of section ibid is not applicable in these circumstances. Resultantly, finding no merit in this petition same is hereby dismissed.