SHAHID NAZIR vs THE STATE and another

Criminal Miscellaneous No,1 of 2011 ' SYED MUHAMMAD KAZIM RAZA SHAMSI, J.---By this order Criminal Miscellaneous No,1 of 2011 relating to suspension of sentence of imprisonment is proposed to be disposed of.

2. This petition pertains to suspension of sentence of imprisonment for life awarded in private complaint of one Noor Muhammad to the petitioner Shahid Nazir on 30-3-2009 by Mr. Rehan Bashir, learned Addl. Sessions Judge, Wazirabad, District Gujranwala.

3. Learned counsel for the petitioner made his submissions touching the merits of the main appeal as well as on the basis of amendment made on 18-4-2011 in section 426, Cr.P.C, alleging that the petitioner is behind the bars for the last two years and there is no likelihood of hearing of his appeal (Criminal Appeal No,563 of 2009) in the near future. He prayed for the suspension of the sentence order dated 30-3-2009 and the sentence awarded thereunder. In this connection, learned counsel has relied upon the cases of Altai Hussain Shah v. State (1994 SCM R 480), Muhammad Yaqoob and others v. The State (1991 SCM R 1459) and Liaqat and another v. The State (1995 SCM R 1819).

4. On the other hand, learned D.P.-G. Assisted by counsel for the complainant submitted that the suspension of the sentence as prayed for cannot be granted as the petitioner had murdered his real father with his 'Danda' below, which injury was found to be fatal. The cases of Liaqat Ali v. The State (1999 PCr.LJ 1942), Shaukat Ali v. The State (2006 YLR 1174) and Muhammad Mustafa v. The State (2001 M LD 1335) have been cited by learned counsel to support the contention.

5. The parties have been heard and record perused..

6. The cases of Liaqat Ali and Shaukat Ali (supra) referred to by the learned counsel for the complainant are not on the point that sentence under section 426, Cr.P.C. Cannot be suspended. In those cases the Murder Reference were disposed of by this Court after appreciating the whole evidence on the record as such these cases have no bearing upon application for suspension of sentence. The judgment in the case of Muhammad Mustafa (supra) could be relevant to some extent in this respect in which case the suspension of sentence was refused to the convict on the ground that he had committed the murder in a heinous manner, which reflected that he was callous and hard hearted person. In the instant case there is nothing on the file to show the callousness of the petitioner in murdering his father. The petitioner was not alone responsible for the offence, as per contents of the F.I.R., in murdering his father, rather his real brother, mother and two others persons had also participated in murder. One `Danda' blow is attributed to the petitioner at the head of the deceased. He did not repeat the infliction of the injuries thus cannot be treated as hard hearted or callous. Mere fact that he had murdered his real father is not sufficient in the circumstances to refuse the relief for which the petitioner is entitled. His mother Mst. Farzana Bibi and two other co-accused had been acquitted by the learned trial Court.

7. In cases, seeking suspension of sentence, the only thing to be examined by the Court, is whether the case of the petitioner falls within the proviso to section 426(1)(a) Cr.P.C, which provides that sentence imposed cannot be suspended if the convict is desperate, hardened criminal, previous convict and dangerous criminal. Present petitioner does not fall within any of the categories enunciated in the proviso. On merits the record shows that the appeal filed by the petitioner against his conviction was entertained in this Court on 10-6-2009 and uptil now the same has not been fixed for regular hearing. In this manner it cannot be said that the delay in disposal of appeal is on the part of the petitioner. Further, in such like situation the Court has also to keep in mind the other factors, like one that the brother of the petitioner has been declared as proclaimed offender in this case while the mother of the petitioner has also faced the trial of the case. The petitioner is of the age of about 20 years and as per evidence he is a student and still to undergo nineteen years in imprisonment. He also appears to be sole bread earner for his family.

8. Thus while relying upon the cases of Altaf Hussain Shah, Muhammad Yaqoob and Liaqat (supra) this Court is inclined to grant this application as the same is warranted in the circumstances narrated above.

9. For the foregoing reasons, the petitioner's case is made out, therefore, the A sentence imposed upon the petitioner in the order dated 30-3-2009 by the learned Addl. Sessions Judge Wazirabad is suspended on the basis of statutory ground and he is ordered to be released from jail subject to his furnishing of bail bonds in the sum of Rs,200,00'0 with two sureties in the like amount to the satisfaction of Deputy Registrar (Judi.) of this Court. The petitioner is further directed to appear in this Court as and when the main appeal is fixed for hearing.